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a^d,^m..^.,,  CASES 


ON 


CIVIL  PROCEDURE 


SELECTED  AND  ANNOTATED 


By 
WILLIAM  H.  LOYD 

Of  the  Philadelphia  Bar 
Assistant  Professor  of  Law  in  the  University  of  Pennsylvania 


INDIANAPOLIS 

THE  BOBBS-MERRILL  COMPANY 

PUBLISHERS 


Copyright  1916 

BY 

The  Bobbs-AIerrill  Company 


i^' 


INTRODUCTORY  NOTE 


The  purpose  of  tliis  volume  is  to  point  out  through  selected 
cases,  the  principal  problems  of  civil  procedure,  to  explain  how  they 
were  approached  at  common  law  and  to  indicate  how  they  are  com- 
monly dealt  with  in  modern  courts.  Such  a  course  it  is  believed  will 
not  only  prepare  the  student  for  the  more  intelligent  study  of  the 
procedure  of  the  state  in  which  he  expects  to  practice,  but  will  also 
assist  him  in  those  branches  of  substantive  law  that  are  rooted  in 
procedure.  It  is  hoped,  too,  that  in  schools  where  the  local  practice 
alone  is  taught  and  in  the  office,  preceptor  and  student  may  find  here 
material  useful  for  comparative  study.  Indeed,  as  the  practice  of 
the  law  tends  in  this  country  to  extend  beyond  state  boundaries,  it 
becomes  increasingly  dangerous  to  restrict  one's  information  to  the 
methods  of  a  single  locality.  While  one  can  hardly  expect  to  become 
expert  in  the  daily  routine  of  courts  other  than  those  in  which  his 
life's  work  is  centered,  a  broad  comprehensive  view  of  the  more  im- 
portant points  upon  which  a  diversity  of  practice  may  be  anticipated 
is  an  equipment  not  to  be  despised. 

There  is  another  reason  why  the  ground-work  of  procedure 
should  be  studied  more  attentively  than  in  the  past.  Procedure  is, 
today,  perhaps  the  weakest  spot  in  our  system  of  jurisprudence.  De- 
veloped to  meet  tlie  needs  of  a  state  of  society  that  has  long  since 
ceased  to  exist,  amended  often  by  careless  legislation,  it  is  a  forlorn 
patchwork  that  any  one  can  attack  and  few  defend.  Change  is  inevit- 
able and  it  is  most  important  that  reform  when  it  comes  should  be 
intelligently  directed ;  that  the  problems  of  comparatively  easy  solu- 
tion should  not  be  confused  with  those  that  are  fundamentally  diffi- 
cult; and  that  the  subject  be  treated  as  a  whole,  with  a  view  to  the 
development  of  an  orderly,  practical  system,  as  simple  as  is  com- 
patible with  the  complexity  of  modern  civilization.  In  approaching 
the  subject  no  theoretical  notions,  no  doctrinal  discussion  can  equal 
the  study  of  cases  in  which  the  very  points  have  arisen.  In  fact, 
there  is  no  better  test  for  determining  whether  any  doubt  or  diffi- 
culty is  real  or  purely  imaginary  than  the  crude  experience  of  life 
itself. 

The  first  part  of  the  book  deals  with  parties  to  actions,  and  the 
forms  of  and  proceedings  in  actions,  leading  up  to  pleading ;  but  with 
the  exception  of  a  few  cases  on  the  plaintiff's  statement  of  claim  and 
brief  mention  of  the  motions  based  on  the  pleadings  after  verdict, 
pleading  has  been  omitted.  This  is  not  because  it  is  not  an  important 
part — perhaps  the  most  important  part — of  procedure,  but  because 


iv  TNTROnUCTORY    NOTE 

excellent  case  books  on  that  subject  arc  available  and  it  was  thought 
best  that  the  instructor  be  Jijivcn  the  oi)i)ortunity  to  ciioosc  between 
common  law  and  code  pleading.  The  cases  leading  up  to  that  subject 
are  adapted  to  either  course.  The  remainder  of  the  book  deals  with 
trials,  judgments,  executions,  and  appeals,  topics  greatly  neglected 
in  law  courses  although  it  is  difficult  to  see  why,  since  they  include 
many  stimulating  ]>roblcms.  Perhaps  the  size  of  the  subject  is  a  de- 
terrent. In  fact,  in  spite  of  a  real  effort  at  condensation  it  is  not  prob- 
able that  all  the  cases  printed  can  be  read  in  course  in  the  number  of 
hours  that  can  be  spared  in  an  already  crowded  curriculum.  The 
instructor,  therefore,  should  select  those  best  suited  to  his  own  needs, 
using  the  others  for  occasional  reference.  Even  so,  many  points 
worthy  of  full  discussion  have  been  forced  into  the  notes. 

When  this  course  was  first  offered  in  the  Law  School  of  the  Uni- 
versity of  Pennsylvania,  in  the  fall  of  1910,  it  was  in  the  nature  of  an 
experiment,  '^hat  it  has  commended  itself  to  tlie  Faculty  who  have 
observed  the  „^esults,  would  indicate  that  a  real  gap  in  the  curriculum 
has  been  filled. 


TABLE  OF  CONTENTS 


CHAPTER  I 
The   Court    I 

CHAPTER  II 

Parties 35 

Section      I — In  General 35 

II — Remedial  Interest 47 

III — Joinder  o£  Parties 57 

(a)  Plaintiffs 57 

(b)  Defendants 8o 

IV— Personal  Disability 104 

(a)  Infants    104 

(b)  Married  Women    m 

(c)  Insane  Persons    124 

(d)  Aliens   I33 

CHAPTER  III 

Actions    143 

Section      I — Actions    I43 

(a)  Ejectment   146 

(b)  Forcible  Entry  and  Detainer 164 

(c)  Dower 170 

(d)  Waste   I7S 

(e)  Account I79 

(f)  Covenant 186 

(g)  Debt    189 

(h)  Assumpsit   I97 

(i)    Trespass    213 

( j )    Case 221 

(k)  Detinue 225 

(1)    Trover 234 

(m)  Replevin   238 

II — Abolition  and  Consolidation  of  Forms  of  Actions 243 

III— Public  Civil  Actions 253 

(a)  Quo  Warranto 253 

(b)  Mandamus    259 

(c)  Prohibition    266 

IV — Venue  of  Actions 269 

V — Commencement  of  Actions 281 

(a)  Process    281 

(b)  Appearance 301 

(c)  Statement  of  Plaintiff's  Claim 309 

CHAPTER  IV 

Trial 33i 

Section      I — Modes  of  Trial 33i 

II— The  Jur>'    342 

(a)  Jury  Process 342 

(b)  Challenges 345 


Vi  TABLE   OF    CONTENTS 

IIT — Process  for  Witnesses 370 

IV— Riclit  to  Open  and  Close 384 

V — Demurrer  to  Evidence   388 

VI— Xonsiiit 393 

VII— Direction  of  Verdict 410 

VIII — Arguments  of  Counsel 4^9 

IX — Charge  of  the  Court 426 

X — Custody  and  Conduct  of  Jury 438 

XI— Verdict   458 

XII— Motions  After  Verdict 470 

(a)  New  Trial 472 

(b)  Judgment  non  Obstante  Veredicto 486 

(c)  Arrest  of  Judgment 488 

CHAPTER  V 

Judgment 495 

Section       I — Rendition  and  Entry 495 

II — Judgment  by  Confession 509 

III— Judgment  by  Default 522 

IV — Amendment  of  Judgments 531 

V — Opening  and  Vacating  Judgments 540 

VI— Collateral  Attack 54^ 

(a)  Personal  Actions   546 

(b)  Proceedings  in  Rem   563 

(c)  Probate  and  Administration 572 

VII— Res  Judicata 577 

(a)  Merger    577 

(b)  Estoppel    594 

VIII — Lien  of  Judgments   621 

IX — Actions  on  Judgments 638 

CHAPTER  VI 

Execution    647 

Section       I — Issuing  of  the  Writ 647 

II — Property  and  Interests  Subject  to  Execution 658 

III — Lien  of  Execution 694 

IV— The  Levy 704 

V — Exemptions 718 

VI— Claims  by  Strangers  to  the  Writ 728 

VII— The  Sale  and  Return 736 

VIII— Title  of  the  Purchaser 760 

IX— Audita  Querela    773 

X — Satisfaction  of  Executions 776 

XI — Supplementary'  Proceedings 781 

XII — Execution  Against  the  Person 788 

XIII — Executions  to  Recover  Specific  Property 802 

(a)  Personalty 803 

(b)  Realty    809 

CHAPTER  VII 

Appeal  and  Error   817 

Section      I — Nature  of  the  Remedy 817 

II— Parties    828 

III — Supersedeas 840 

IV — Exceptions  and  Record 850 

V — Assignments  of  Error 863 

VI — Briefs  and  Argument 871 

VII— Review  by  the  Court 877 

VIII — Judgment    907 

IX— Remittitur 933 

Appendix 937 


TABLE  OF  CASES  REPORTED 


A.  B.  Farquhar  Co.,  Ltd.  v.  DeHaven,  70  W.  Va.  738  510 

Adams  v.  Hemmenway,  i  Mass.  145  221 

■^Aexander  v.  Jameson,  5  Bin.  (Pa.)  238  443 

Ames  V.  Hoy,  12  Cal.  11  640 

Anonymous,  Y.  B.  4  Edw.  II  No.  74  455 

Anonymous,  6  Cow.  (N.  Y.)  390  542 

Anonymous,  Lib.  A.  38  Edw.  Ill  21  546 

Anonymous,  Y.  B.  21  Edw.  Ill,  9  pi.  25  822 

Ashby  V.  Ashby,  39  La.  Ann.  105  35 

Atkinson  v.  Allen,  12  Vt.  619  558 

Atkinson  v.  People's  Nat.  Bank,  85  Maine  368  860 

Bangor  Bank  v.  Treat,  6  Maine  207  87 

Bank  &c.  Kentucky  v.  Ashley,  2  Pet.  (U.  S.)  327  907 

Bamier  v.  Barnier,  23  Ont.  Rep.  280  65 

Barrus  v.  Phaneuf,  166  Mass.  123  375 

Bayer  v.  Doscher,  139  App.  Div.  (N.  Y.)  324  663 

Bell  V.  Germain,  12  Cal.  App.  375  871 

Bell  V.  Otts,  loi  Ala.  186  499 

Bigham  v.  Dover,  86  Ark.  323  769 

Birch  V.  Philips,  6  Term  Rep.  597  330 

Bishop  of  L.  V.  Earl  of  K.,  2  Brooke's  Abr.  309,  pi.  19  438 

Black  V.  Kirgan,  15  N.  J.  L.  45  828 

Blessing  v.  AIcLinden,  81  N.  J.  L.  379  83 

Boone  v.  Holder,  87  Ark.  461  424 

Boston  &  M.  Railroad  v.  State,  75  N.  H.  513  378 

Boulter  v.  Ford,  Siderfin  76  524 

Bozson  V.  Altrincham  &c.  Council,  L.  R.  (1903)  i  K.  B.  547  823 

Brady  v.  Brady,  161  N.  Car.  324  272 

Bragg  V.  Wetzel,  5  Blackf.  (Ind.)  95  82 

Brannenburg  v.  Indianapolis  P.  &  C.  R.  Co.,  13  Ind.  103  580 

^Bronson  v.  Graham,  2  Yeates  (Pa.)  166  446 

Bronson  v.  Schulten,  104  U.  S.  410  531 

Brooks  V.  Scott,  2  Munf.  (Va.)  344  197 

Browder  v.  Phinney,  30  Wash.  74  243 

Brown  v.  First  Nat.  Bank,  132  Fed.  450  584 

Bindbental  v.  St.  Ry.  Co.,  43  Mo.  App.  463  890 

Bull  V.  Mathews,  20  R.  I.  100  320 

Bunn  V.  Hoyt,  3  Johns.  (N.  Y.)  255  458 

Buntin  v.  Danville,  93  Va.  200  456 

Burton  v.  Kershaw,  81  L.  T.  Rep.  531  476 

VButcher  v.  Metts,  i  Miles  (Pa.)  233  493 

Butler  V.  Frontier  Tel.  Co.,  186  N.  Y.  486  159 

Calvart  v.  Horsfall,  4  Esp.  167  809 

Candee  v.  Lord,  2  N.  Y.  269  560 

Caperton  v.  Schmidt,  26  Cal.  479  153 

Cassidy  v.  Leitch,  2  Abb.  N.  Cas.  (N.  Y.)  315  287 

^  Cayuga  Bldg.  &  L.  Assn.  v.  Mac  Mullen,  46  Pa.  Super.  Ct.  94  866 

Chadsey  v.  Lewis,  6  111.  153  47 

Chamberlaine  v.  Willmore,  Palmer's  Rep.  313  91 

Chambers  v.  Philadelphia  P.  Co.,  82  N.  J.  L.  i  933 

vii 


viii  TABLE   OF    CASES   REPORTED 

Cliampncy  v.  Smith,  8i  ^fass.  512  764 

Cliartcr  v.  Peeler,  Cro.  VAh.  597  843 

C'lienerv  v.  Stevens,  97  Mass.  77  716 

CliicajAO  &  iX.  K.  Co.  v.  Dunleavy,  uy  111.  132  465 

ChUders  v.  Laliann.  18  i\.  Mex.  487  301 

Chipman  v.  Palmer,  77  N.  Y.  51  96 

Chism  V.  Smith,  138  App.  Div.  (N.  Y.)  715  882 

Clark  V.  iMorey,  10  Johns.  (N.  Y.)  69  137 

Clark  V.  Parkinson,  92  Mass.  133  8n 

Clarksons  v.  Doddridge,  14  Grat.  (Va.)  42  49 

Clav  V.  Oxford,  L.  R.  (1866)  2  Exch.  53  43 

Climax  Specialty  Co.  v.  Seneca  Button  Co.,  54  Misc.  (N.  Y.)  152  77 

Coad  V.  Cowhiciv,  9  Wyo.  316  621 

College  Street,  In  re,  il  R.  I.  472  544 

Copeiand  v.  New  England  Ins.  Co.,  39  Mass.  135  388 

Copleston  v.  Piper,  i  Ld.  Raym.  191  325 

Cooper  V.  Mav,  1  Harr.  (Del.)  18  653 

Corwith  V.  State  Bank,  15  Wis.  289  93i 

Courtney  v.  Baker,  3  Denio  (N.  Y.)  27  371 

Cromwell  v.  Sac  County,  94  U.  S.  351  600 

Crouse  v.  ^IcVicar,  207  N.  Y.  213  552 

Crow  V.  Williams,  104  Mo.  App.  451  912 

^Dalzell  V.  Lynch,  4  Watts  &  S.  (Pa.)  255  679 

Dame  v.  Dame,  43  N.  H.  37  225 

Davis  V.  Barnard,  60  N.  H.  550  690 

Davis  V.  Graniss,  5  Blackf.  (Ind.)  79  523 

Davis  V.  Hurt,  114  Ala.  146  234 

rfDe  Chastellux  v.  Fairchild,  15  Pa.  St.  18  9 

De  Coppett  v.  Barnett,  17  T.  L.  Rep.  273  734 

Deering  v.  Quivey,  26  Ore.  556  540 

Denny  v.  Booker,  2  Bibb  (Ky.)  427  387 

Denton  v.  Livingston,  2  Johns.  (N.  Y.)  96  669 

•yDidil  V.  Evans,  i  Serg.  &  R.  (Pa.)  367  460 

Dillingham  v.  Skein,  Hempstead  (U.  S.)  181  192 

Ditson  Co.  V.  Testa,  213  Mass.  109  822 

Doe  e.x  dem.  Cooper  v.  Cutshall,  i  Ind.  246  630 

Dowd  V.  Seawell,  3  Dev.  L.  (N.  Car.)  185  194 

Downey  v.  Finucane,  205  N.  Y.  251  349 

•Ouncan  v.  M'Cumber,  10  W^atts  (Pa.)  212  694 

^©uncan's  Appeal,  37  Pa.  St.  500  710 

Dunlap  V.  Cody,  31  Iowa  260  293 

Dunlap  V.  Glidden,  31  Maine  435  555 

Dunning  v.  Crofutt,  81  Conn.  loi  483 

Duvall  V.  Waters,  i  Bland  Ch.  (Md.)  569  175 

Earl  V.  Brown,  i  Wils.  302  652 

Earp  v.  Minton,  138  N.  Car.  202  550 

^aston  Bank  v.  Cor>-ell,  9  Watts  &  S.  (Pa.)  153  396 

Edward  Thompson  Co.  v.  Kollmeyer,  46  Ind.  App.  400  200 

Ellis  V.  Culver,  2  Harr.  (Del.)  129  490 

Empire  State  C.  Co.  v.  Atchison,  T.  &  S.  F.  R.  Co.,  210  U.  S.  I  415 

Ervin  v.  State  ex  rel.  Walley,  150  Ind.  332  56 

Erwin  v.  Dundas,  4  How.  (U.  S.)  58  655 

Exchange  Mut.  L.  Ins.  Co.  v.  Warsaw-Wilkinson  Co.,  185  Fed.  487  934 

Fairfield  v.  Southport  Nat.  Bank,  77  Conn.  423  loi 

Falls  City  v.  Spern,-,  68  Xebr.  420  446 

Farmers'  &c.  Nat.  Bank  v.  Crane,  15  Abb.  Pr.  (N.  S.)   (N.  Y.)  434  650 

Farni  v.  Tesson,  66  U.  S.  309  57 

Feldenheimer  v.  Tressel,  6  Dak.  265  784 

Feneff  v.  Boston  &  M.  Railroad,  196  Mass.  575  93 

Ferrand  v.  Bingley  Tp.  &c.  Board,  8  T.  L.  Rep.  70  481 


TABLE   OF    CASES   REPORTED  IX 

Fidelity  Mut.  L.  Ins.  Co.  v.  Beck,  84  Ark.  57  923 

Fink  V.  Fraenkle,  20  N.  Y.  Civ.  Proc.  402  718 

First  Nat.  Bank  of  Rock  Springs  v.  Foster,  9  Wyo.  157  339 

Fisher  v.  City  of  Charleston,  17  W.  Va.  595  259 

Foorman  v.  Wallace,  75  Cal.  552  768 

Forsythe  v.  Washtenaw,  180  Mich.  633  788 

Foss  V.  Witham,  91  Mass.  572  775 

Freeman  v.  Alderson,  119  U.  S.  185  567 

French  v.  Peters,  177  Mass.  568  834 

Frost  V.  Shaw,  3  Ohio  St.  270  724 

Fry  V.  Hordy,  T.  Jones  83  449 

Gainesville  &c.  Railway  Co.  v.  Austin,  122  Ga.  823  3i5 

Gallagher  v.  True  Amer.  Pub.  Co.,  75  N.  J.  Eq.  171  634 

Gallatin  &  W.  Tpk.  Co.  v.  Fry,  88  Tenn.  296  62 

Garr  v.  Gomez,  9  Wend.  (N.  Y.)  649  918 

Garthwaite,  Griffin  &  Co.  v.  Tatum,  21  Ark.  336  3(>3 

Gibson  V.  Ledwitch,  84  Kans.  505  614 

Girard  v.  Grosvenordale  Co.,  82  Conn.  271  360 

Glines  v.  Cross,  12  Manitoba  442  884 

Goldey  v.  Morning  News,  156  U.  S.  518  291 

Goodwin  v.  Welshe,  Yelv.  151  5^8 

Graves  v.  Macfarland,  58  Nebr.  802  296 

Gray  v.  Rothschild,  48  Hun  (N.  Y.)  596  7i 

Gregoir  v.  Leonard,  71  Vt.  410  223 

Gue  V.  Tide  Water  Canal  Co.,  65  U.  S.  257  670 

Guild  V.  Cranston,  62  Mass.  506  104 

Gulf,  C.  &  S.  F.  R.  Co.  V.  Matthews,  28  Tex.  Civ.  App.  92  442 

Gulick  V.  Webb,  41  Nebr.  706  755 

Guyer  v.  Guyer,  6  Houst.  (Del.)  430  5^8 

Gwinn  v.  Hubbard,  3  Blackf.  (Ind.)  14  799 

Haebler  v.  Myers,  132  N.  Y.  363  926 

Hail  V.  Spencer,  i  R.  I.  17  283 

Hambleton  v.  Dempsey,  20  Ohio  168  463 

rHardenburg  v.  Beecher,  104  Pa.  St.  20  760 

Harris  v.  Webster,  58  N  H.  481  119 

Hartford  v.  Smith,  199  Fed.  763  250 

Harvey  v.  Wilde,  L.  R.  14  Eq.  Cas.  438  619 

Hatchett  v.  Baddeley,  2  Wm.  Bl.  1079  "2 

7Hefner  v.  Albright,  231  Pa.  396  576 

Henry  v.  Spitler,  67  Fla.  146  304 

;7Henwood  v.  Cheesman,  3  Serg.  &  R.  (Pa.)  500  277 

'^ Herod  v.  Bartley,  15  111.  58  742 

Hertz  V.  Woodman,  218  U.  S.  205  900 

Highway  Comrs.  v.  Bloomington,  253  111.  164  206 

Hill  V.  Nelson,  70  N.  J.  L.  376  269 

Hitchcock  V.  Munger,  15  N.  H.  97                                                    ■  3^7 

Hollister  v.  Lyon,  177  HI-  App.  652  199 

Home  Ins.  Co.  v.  Gilman,  112  Ind.  7  75 

Hookin  v.  Quilter,  2  Str.  1271  529 

Hopkins  v.  Clark,  158  N.  Y.  299  407 

Homer  v.  Battyn,  Buller  N.  P.  62  798 

Hubbard  v.  Chapman,  28  App.  Div.  (N.  Y.)  577  857 

Hubbard  v.  President  &c.  Hamilton  Bank,  48  Mass.  340  636 

Hudson  V.  Minneapolis,  L.  &  M.  R.  Co.,  44  Minn.  52  435 

Humphrey  v.  Gerard,  83  Conn.  346  684 

Hyman  &  Co.  v.  H.  H.  Snyder  Co.,  159  Ky.  354  421 

Independent  School  Dist.  v.  Werner,  43  Iowa  643  625 

Indiana,  B.  &  W.  R.  Co.  v.  Adamson,  114  Ind.  282  70 

Indiana  R.  Co.  v.  Maurer,  160  Ind.  25  428 

Ingham  Lbr.  Co.  v.  Ingersoll,  93  Ark.  447  67 

Isaacs  V.  Evans,  16  Times  Law  Rep.  480  40S 


X  TABLE   OF    CASES    RErOUTKD 

Jackson  ex  dcm.  Miller  v.  Hawley,  ii  Wend.  (N.  Y.)  i8'  814 

JefFry  v.  Wood,  I  Str.  439  907 

Jinks  V.  American  Altp.  Co.,  102  Ga.  694  776 

Johnson  v.  Morris.  7  N.  J.  L.  6  146 

Jones  V.  Goodbar,  60  Ark.  182  758 

Jones  V.  Jones,  I  Bland  (Md.)  443  677 

Jones  V.  Woodwarth,  24  S.  Dak.  583  345 

Karges  Furniture  Co.  v.  Amalgamated  &c.  Union,  165  Ind.  421  39 

Karon  v.  Eisen,  2  N.  Y.  Civ.  Proc.  (N.  S.)  197  527 

Kells  V.  Nelson-Tenny  Lbr.  Co.,  74  Minn.  8  838 

Kennon  v.  Gilmer,  131  U.  S.  22  502 

Kenyon  v.  Saunders,  18  R.  I.  590  44 

Kerby  v.  Jenkins,  2  Tyrvvhitt  499  509 

Kilby  V.  Erwin,  84  Vt.  266  479 

Kimble  v.  Dailey,  127  Iowa  665  16 

King  V.  Wilmington  &c.  R.  Co.,  I  Pennew.  (Del.)  452  309 

Kip  V.  Brigham,  6  Johns.  (N.  Y.)  158  612 

Kitchins  v.  Harrall,  54  Miss.  474  52 

Kountze  v.  Omaha  Hotel  Co.,  107  U.  S.  378  840 

Lampson  v.  Hobart,  27  Vt.  784  873 

Lamy  v.  Lamy,  4  N.  Mex.  43  863 

Lange  v.  Benedict,  T2>  N.  Y.  12  22 

Leame  v.  Bray,  3  East  593  218 

Leeper,  Graves  &  Co.  v.  First  Nat.  Bank,  26  Okla.  707  807 

Lees  v.  United  States,  150  U.  S.  476  852 

^evi  v.  Greer,  236  Pa.  475  757 

^ Le\->stein  v  O'Brien,  106  Ala.  352  108 

Linson  v.  Spaulding,  23  Okla.  254  888 

Litchfield  v.  Goodnow,  123  U.  S.  S49  609 

Longworthy  v.  Featherston,  65  Ga.  165  743 

Loomis  v.  Lehigh  Val.  R.  Co.,  208  N.  Y.  312  911 

Lord  v.  Veazie,  8  How.  (U.  S.)  251  31 

Low  v.  Mumford,  14  Johns.  (N.  Y.)  426  89 

Ludwin  v.  Siano,  36  Misc.  (N.  Y.)  537  543 

Lumley  v.  Torsiello,  69  App.  Div.  (N.  Y.)  76  117 

L>-man  v.  Fidelity  &c.  Co.,  65  App.  Div.  (N.  Y.)  27  419 

Lyon  V.  City  of  Elizabeth,  43  N.  J.  L.  158  673 

McDonald  v.  Metropolitan  St.  R.  Co.,  167  N.  Y.  66  412 

McDonald  v.  Pless,  238  U.  S.  264  45i 

McElhanon  v.  McElhanon,  63  111.  457  36 

-rMcElroy  v.  Reading,  7  Phila.  (Pa.)  433  530 

McNaughton  v.  McLean,  73  Mich.  250  74i 

^McNulty  v.  O'Donnell,  27  Pa.  Super.  Ct.  93  61 

;rMcXulty's  Estate,  In  re,  230  Pa.  387  886 

M'Voy  v.  Wheeler,  6  Port.  (Ala.)  201  186 

Mack  v.  Parks,  74  Mass.  517  658 

Mac  Rae  v.  Kansas  City  Piano  Co.,  69  Kans.  457  45 

Macurda  v.  Lewiston  Journal  Co.,  104  Maine  554  327 

Manby  v.  Scott,  i  WoA.  124  801 

Marter  v.  Henry  Sanchez  Co.,  77  N.  J.  L.  95  324 

Mason  v.  Fox,  Cro.  Jac.  632  538 

Masterson  v.  Herndon,  77  U.  S.  416  831 

;j^atthew's  Appeal,  104  Pa.  St.  444  872 

May  v.  Emerson,  52  (Dre.  262  626 

Megehe  v.  Draper,  21  Mo.  510  726 

Memmer  v.  Carey,  30  Minn.  458  579 

Merchants'  Bank  of  Canada  v.  Schulenberg,  54  Mich.  49  397 

Mille  Lacs  County  Comrs.  v.  Morrison,  22  Minn.  178  ZZ^ 

-^Miller  v.  Commonwealth,  5  Pa.  St.  294  728 

^  Miller  v.  Pamell.  2  Marsh.  78  794 


TABLE  OF  CASES  REPORTED                  XI 

-Miller  v.  Ralston,  i  Serg.  &  R.  (Pa.)  309  922 

Mitchell  V.  McNabb,  58  Maine  506  189 

Moore  v.  Cass,  10  Kans.  288  362 

Moore  v.  Hobbs,  79  N-  Car.  535  3ii 

Moore  v.  Terhune,  161  111.  App.  155  01 

Morgan  v.  Kinney,  38  Ohio  St.  610  7^3 

Morrice  v.  Green,  3  Salk.  213  522 

Morrow  v.  Dudley  &  Co.,  144  Fed.  441  295 

Mutual  Assur.  Soc.  v.  Stanard,  4  Munf.  (Va.)  539  631 


879 
80 


Nalle  V.  Oyster,  230  U.  S.  165 

Rational  Bank  v.  Buckwalter,  214  Pa.  289 

•  Nevil  V.  Soper,  Salk.  213  327 

New  Jersey  v.  Morris,  82  N.  J.  L.  14  279 

New  York  v.  Rotolo,  16  Misc.  (N.  Y.)  579  U 

Nichols  V.  Guthrie,  109  Tenn.  535  681 

Nierenberg  v.  Wood,  59  N.  J.  L.  112                               •  91 

Noell  V.  Wells,  l  Levinz  235  572 

Northampton  v.  Smith,  52  Mass.  39°  J9 

Noyes  v.  Parker,  64  Vt.  379  488 

Oakley  v.  Pegler,  30  Nebr.  628  S07 

Old  Dominion  &c.  Co.  v.  Bigelow,  203  Mass.  IS9  59° 

Orchard  v.  Williamson,  6  J.  J.  Marsh.  (Ky.)  558  701 

Osman  v.  Crowley,  loi  App.  Div.  (N.  Y.)  597  792 

Page  V.  Contoocook  Val.  Railroad,  21  N.  H.  438  359 

Page  V.  Freeman,  19  Mo.  421  88 

Palmer  v.  Board  &c.  Essex  County,  77  N.  J.  L.  143  547 

Parham  v.  Harney,  14  Miss.  55  45o 

Parham  v.  Thompson,  2  J.  J.  Marsh.  (Ky.)  159  665 

Parker  v.  Clemmons,  80  Vt.  521  210 

Payne  v.  Payne,  8  B.  Mon.  (Ky.)  391  654 

Peck  V.  Snyder,  13  Mich.  21  462 

People  V.  Mann,  97  N.  Y.  530  11 

People  ex  rel.  Fitch  v.  Mead,  29  How.  Pr.  (N.  Y.)  360  781 

People  ex  rel.  Raster  v.  Healy,  230  111.  280  253 

Peoples  Nat.  Bank  v.  Nickerson,  106  Maine  502  3^3 

Persey  v.  DeB.,  Y.  B.  45  Edw.  Ill,  3  ^8 

TPeter  v.  Steel,  3  Yeates  (Pa.)  250  202 

^  Peterson  v.  San  Francisco,  115  Cal.  211  067 

Phillips  V.  Ward,  2  H.  &  C.  7^7  594 

Pinckney  v.  Pinckney,  114  Iowa  44I  766 

Pleasants  v.  Fant,  89  U.  S.  116  4io 

Pond  V.  Kimball,  loi  Mass.  105  72i 

Poole's  Case,  l  Salk.  568  665 

Postal  V.  Cohn,  83  App.  Div.  (N.  Y.)  27  248 

Powers  V.  Sturtevant,  200  Mass.  519  874 

Prentis  v.  Atlantic  Coast  Line,  211  U.  S.  210  6 

Press  Pub.  Co.  v.  Monteith,  180  Fed.  356  893 

Price  V.  Virginia-Carolina  C.  Co.,  136  Ga.  175  I75 

Pursley  v.  Withle,  4  Ind.  App.  383  536 

Pyles  V.  Piedmont  Mt.  Airy  Guano  Co.,  58  Fla.  348  385 

Quagliana  v.  Jersey  City  &c.  R.  Co.,  77  N.  J.  L.  loi  475 

Rains  v.  McNairy,  4  Humph.  (Tenn.)  356  691 

yRand  V.  King,  134  Pa.  St.  641  820 

/  Ransom  v.  Pierre,  loi  Fed.  665  844 

Ray  V.  Chesapeake  &  O.  R.  Co.,  57  W.  Va.  333  422 

•^eber  v.  Schroeder,  221  Pa.  152  805 

'Reilly  v.  Sicilian  &c.  Co.,  170  N.  Y.  40  582 

Reynolds  v.  Hoxsie,  6  R.  I.  463  727 


XU  TAUI.i;   OF    CASES    REPORTED 

Rhoads  v.  Booth,  14  Towa  575  63 

Rice  V.  Sergeant,  7  Mod.  j;]  700 

Kiclicson  V.  Ryan,  14  111.  74  827 

Rini;.:;old  v.  Haven  &  Livinpston.  l  Cal.  loS  401 

Roberts  v.  Ilnizlies,  7  W.  &  \V.  399  454 

Robinson  v.  Robinson,  Cro.  Jac.  14  606 

Rollers  v.  Duhart,  07  Cal.  500  247 

Ropers  v.  Kennay,  il  Jnr.  14  687 

Romain  v.  Board  &c.  Mnscatine  Conntj-,  i  Morris  (Iowa)  357  286 

Root  V.  Fcllowcs,  60  Mass.  29  506 

Ross  V.  McCaldin,  195  N.  Y.  210  336 

Royal  Aquarium  &c.  Soc.  v.  Parkinson,  L.  R.  I  Q.  B.  431                                    2 

Kumford  Nat.  Bank  v.  Arsenault,  108  Maine  241                                               404 

St.  John  V.  Andrews  Inst.,  192  N.  Y.  382  914 

St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Spencer,  71  Fed.  93                                           430 

Sampson  v.  Tuxon,  Cro.  Jac.  699  925 

^Savage  v.  Evcrman,  70  Pa.  St.  315  643 

Savcry  v.  Busick,  11  Iowa  487  484 

Schmidt  V.  New  York  ^Mut.  F.  Ins.  Co.,  67  Mass.  529  364 

Schwinn  v.  Perkins,  79  N.  J.  L.  515  164 

Scott  V.  Shearman,  2  W.  Bl.  977  563 

Semayne's  Case,  5  Coke  91  704 

Sessions  v.  Johnson,  95  U.  S.  347  588 

Sheridan  v.  New  York,  68  N.  Y.  30  S3 

Shives  V.  Eno  Cotton  Mills,  151  N.  Car.  290  486 

Sibley  v.  Leek,  45  Ark.  346  881 

Sikes  V.  Ransom,  6  Johns.  (N.  Y.)  279  855 

Singer  v.  Hutchinson,  183  III.  606  617 

Sinnott  v.  Feiock,  165  N.  Y.  444  238 

Slingsby  v.  Boulton,  i  Ves.  &  B.  334  733 

Smith  V.  Picsiada,  174  Ind.  134  470 

Smith  V.  Fames,  4  111.  76  366 

Snow  V.  West,  37  Utah  528  501 

Southern  Bell  Tel.  &  T.  Co.  v.  Glawson,  140  Ga.  507  903 

Starr  v.  Taylor,  4  McCord  L.  (S.  Car.)  413  115 

State  V.  \\hitaker,  114  N.  Car.  818  266 

State  ex  rel.  Mackey  v.  District  Court,  40  Mont.  359  275 

Steamboat  Burns,  9  Wall.  (U.  S.)  237  37 

Steele,  In  re,  156  Fed.  853  1 

Stephens  v.  Howe,  127  Alass.  164  643 

Stevens  v.  Clark,  62  Fed.  321  817 

•^tewart  v.  Peterson,  63  Pa.  St.  230  638 

Storm  V.  United  States,  94  U.  S.  76  877 

Stumps  V.  Kelley,  22  111.  140  426 

Sybell  Belknap's  Case,  Y.  B.  i  Hen.  IV,  PI.  2  in 

Sypherd  v.  Myers,  80  N.  J.  L.  321  894 

Tait  V.  Atkinson,  3  U.  C.  Q.  B.  152  188 

Tandy  v.  Waesch,  154  Cal.  108  55 

Taylor  v.  Carpenter,  2  Woodb.  &  M.  (U.  S.)  i                                                  133 

Taylor  v.  Claypool,  5  Blackf.  (Ind.)  557  587 

Tegarden  v.  Phillips,  14  Ind.  App.  27  351 

Thaw,  In  re,  172  Fed.  288  382 

Tillman  v.  Davis,  28  Ga.  494  298 

Thomas  v.  People,  107  111.  517  574 

Thompson  v.  Douglas,  35  W.  Va.  337  354 

Thompson  v.  McManama,  2  Disn.   (Ohio)  213  751 

Thompson's  Case,  122  Mass.  428  796 

Thomson  v.  Clerk,  i  Cro.  Eliz.  504  736 

-fThouron  v.  Paul,  6  Whart.  (Pa.)  615  179 

/Towner  v.  Phelps,  i  Root  (Conn.)  250  301 

Townsend  v.  Masterson  &c.  Co.,  15  N.  Y.  587  825 


TABLE   OF    CASES    REPORTED  xiil 

Trier  v.  Herman,  115  N.  Y.  163  B30 

Truett  V.  Legg,  2,2  Md.  147                                                       '  548 

Turner  v.  Fendall,  i  Cranch.  (U.  S.)  117  661 

United  States  v.  Dashiel,  70  U.  S.  688  778 

United  States  Cement  Co.  v.  Cooper,  172  Ind.  599  4215 

Upton  V.  Wells,  I  Leon.  145  3jq 

Van  Horn  v.  Hann,  39  N.  J.  L.  207  126 

Waite  V.  Dolby,  8  Humph.  (Tenn.)  406  803 

Walker  v.  Waterbury,  81  Conn.  13  867 

—Wallace  v.  United  Elec.  Co.,  211  Pa.  473  288 

Waller  v.  Weedale,  Noy  107  737 

Washburn  v  Allen,  yy  Maine  344  -iq-i 

Waters  v.  Gooch,  6  J.  J.  Marsh.  (Ky.)  586  170 

West  V.  Ratledge,  4  Dev.  L.  (N.  Car.)  31  281 

Western  &  A.  R.  Co.  v.  Brown,  102  Ga.  13  384 

Wetzel  V.  Hancock  County,  143  111.  App.  178  307 

White  V.  Improved  Property  Holding  Co.,  140  App.  Div.  (N.  Y.)  520  322 

^Whitney  v.  Hopkins,  135  Pa.  246  515 

Whitney  v.  Wellesley  &  B.  St.  R.  Co.,  197  Mass.  495  433 

Whittaker  v.  Stangvick,  100  Minn.  386  213 

Wiesmann  v.  Donald,  125  Wis.  600  124 

Wilber  V.  Widner,  i  Wend.  (N.  Y.)  56  504 

Wilbur  V.  Gilmore,  38  Mass.  250  606 

Wilkins  v.  Brock,  81  Vt.  ZTi^^  525 

Williams  v.  Gallien,  I  Rob.  (La.)  94  771 

Wilson  V.  Abrahams,  i  Hill  (N.  Y.)  207  440 

Wilson  V.  Louisiana  Purchase  Exp.  Com.  133  Iowa  586  41 

Woddye  v.  Coles,  Noy  59  745 

Wood  V.  Gunston,  Style  466  473 

Wood  V.  Stoddard,  2  Johns.  (N.  Y.)  194  358 

Woods  V.  Monell,  i  Johns.  Ch.  (N.  Y.)  502  747 

^Work  V.  Prall,  26  Pa.  Super.  Ct.  104  ^77 

Worth  V.  Newlin  (N.  J.  Eq.),  36  Atl.  30  420 

Wright  V.  Sharp,  i  Salk.  288  850 

Young  V.  Ashburnsham,  3  Leonard's  Rep.  161  191 

Young  V.  Central  R.  Co.,  232  U.  S.  602  418 

Young  V.  Kershaw,  81  L.  T.  Rep.  531  476 

Zahorka  v.  Geith,  129  Wis.  498  496 


CHAPTER  I. 

The  Court. 

IN  RE  STEELE. 

United  States  District  Court,  N.  D.  Alabama,  1907. 

156  Fed.  853.' 

Hundley,  J. :  The  word  "court"  originally  meant  only  a  yard, 
palace,  or  garden,  and  according  to  Cowell  it  meant  "the  house  where 
the  king  remained  with  his  retinue;  also  the  place  where  justice  was 
administered." — Anderson's  Law  Dictionary.  So,  in  early  history, 
the'coifr't  meant  the  place  where  the  king  was  domiciled,  because  the 
king  was  actually  the  fountain  and  dispenser  of  justice.  The  earlier 
courts  were  merely  assemblages  in  the  courtyard  of  the  baron  or  of 
the  king  himself  by  those  v^^hose  duty  it  was  to  appear  at  stated  times 
or  upon  summ.ons.  This  idea  of  the  place  predominating  as  the  desig- 
nation of  a  court  caused  Blackstone  to  adopt  Coke's  definition  that 
"a  court  is  a  place  where  justice  is  judicially  administered."  3  Black- 
stone's  Commentarie  24.  Indeed,  the  Supreme  Court  of  Alabama,  in 
Ex  parte  Branch  &  Co.,  63  v\la.  384,  adopted  the  definition  that  a 
court  is  "a  place  where  justice  is  administered."  This  definition  has 
been  held  to  be  too  narrow,  and  the  definition  given  by  a  majority  of 
judicial  decisions  is  that:  "A  court  is  a  tribunal  dvdy  constituted, 
and  present  at  the  time  and  place  fixed  by  law  for  judicial  investiga- 
tion and  determination  of  controversies."  2  Century  Dictionary,  p. 
1312;  8  A.  &  E.  Encyc.  of  Law,  p.  22. 

A  court  is  also  held  to  be  "an  incorporeal  being,  which  requires 
for  its  existence  the  presence  of  the  judge."  8  A.  &  E.  Encyc.  of 
Law,  p.  22 ;  State  v.  Judges,  32  La.  Ann.  1261 ;  Lawyers  Tax  Cases, 
8  Heisk.  (Tenn.)  650;  Mason  v.  Woerncr,  18  Mo.  570;  Hobart  v. 
Hobart,  45  Iowa  503 ;  Matter  of  Terrill,  52  Kan.  29,  34  Pac.  457,  38 
Am.  St.  Rep.  327.  It  has  been  further  held  that:  "The  court  is  not 
the  judge  or  judges  as  individuals,  but  only  when  at  the  proper  time 
and  place,  they  exercise  judicial  powers."  - 


^  Extract  from  opinion  of  the  court. 

^3  Blackstone's  Commentaries,  ch.  4;  2  Lowell's  Government  of  England, 
pt.  7,  p.  439;  Stephen's  Commentaries  (15th  ed.),  bk.  5,  ch.  4;  Constitution  of 
United  States,  Art.  Ill,  nth  Amendment;  i  Kent's  Commentaries,  lectures 
14  to  17;  Br\xe's  American  Commonwealth  (2d  ed.),  chaps.  22,  23,  42;  United 
States  Judicial  Code,  Act  of  March  3,  1911,  36  Stat,  at  Large  1087  and  amend- 
ments. 

I — Civ.  Proc.  i 


THE    COURT 


ROYAL  AQUARIUM   SUMMER  AND   WINTER  GARDEN 
SOCIETY  x:  PARKINSON. 

In  the  Court  of  Aiteal,  1892. 

Law  Reports  (1S92),  i  Queen's  Bench,  431.' 

Lord  Eshek.  M.  R.  :  In  this  case  the  action  was  for  a  slander 
upon  the  plaintiffs  in  the  way  of  their  business,  and  the  jury  found 
a  verdict  for  the  plaintiffs  for  250/.  We  are  now  asked  to  enter 
judgment  for  the  defendant  on  several  grounds.  The  statement  com- 
plained of  was  made  by  the  defendant  at  a  meeting  of  the  London 
County  Council,  of  which  he  is  a  member,  when  the  question  before 
such  meeting  was  whether  a  license  for  music  and  dancing  should  be 
granted  to  the  plaintiffs.  He  expressed  a  very  strong  opinion  that  it 
should  not  be  granted,  and  in  expressing  such  opinion  he  used  very 
strong  language.  He  said,  in  effect,  that  he  had  been  to  the  Aqua- 
rium "and  had  seen  there  an  indecent  performance — a  performance 
which  was  the  most  indecent  that  could  be  imagined.  He  described 
it  as  a  performance  between  two  figures  dressed  as  a  male  and  a 
female.  Even  if  it  had  been  so,  to  call  the  performance  described 
the  most  indecent  that  could  be  imagined  seems  to  me  nonsense.  But 
it  turned  out  that  the  figures  were  not  dressed  as  a  male  and  female, 
but  as  two  males,  so  that  all  this  story  of  gross  indecency  was  noth- 
ing but  the  defendant's  own  imagination.  The  jury  appear  in  effect 
to  have  found  that  he  stated  what  he  knew  to  be  untrue.  The  ques- 
tion for  us  on  this  appeal  is  whether,  upon  the  evidence,  the  case  for 
the  plaintiffs  can  be  supported. 

It  was  argued,  in  the  first  place,  on  behalf  of  the  defendant,  that 
he  was  exercising  a  judicial  function  when  he  spoke  the  words  com- 
plained of,  and  therefore  was  entitled  to  absolute  immunity  in  respect 
of  anything  he  said.  It  is  true  that,  in  respect  of  statements  made  in 
the  course  of  proceedings  before  a  court  of  justice,  whether  by  judge, 
or  counsel,  or  witnesses,  there  is  an  absolute  immunity  from  liability 
to  an  action.  The  ground  of  that  rule  is  public  policy.  It  is  applica- 
ble to  all  kinds  of  courts  of  justice;  but  the  doctrine  has  been  car- 
ried further;  and  it  seems  that  this  immunity  applies  wherever  there 
is  an  authorized  inquiry  which,  though  not  before  a  court  of  justice, 
is  before  a  tribunal  which  has  similar  attributes.  In  the  case  of  Dazv- 
kins  V.  Lord  Rokehy*  the  doctrine  was  extended  to  a  military  court 
of  inquiry.  It  was  so  extended  on  the  ground  that  the  case  was  one 
of  an  authorized  inquiry  before  a  tribunal  acting  judicially,  that  is  to 
say,  in  a  manner  as  nearly  as  possible  similar  to  that  in  which  a  court 
of  justice  acts  in  respect  of  an  inquiry  before  it.  This  doctrine  has 
never  been  extended  further  than  to  courts  of  justice  and  tribunals 
i  acting  in  a  manner  similar  to  that  in  which  such  courts  act.    Then 


'The  reporter's  statement  of  the  facts,  the  arguments  of  counsel  and 
portions  of  the  judgments  are  omitted,  as  is  the  concurring  opinion  of  Lopes, 

L.  J. 

*L   R   8  Q.  B.  255;  L.  R.  7  H.  L.  744,  and  see  People  v.  Van  Allen,  55 

N.  Y.  31  (1873). 


ROYAL  ACQUARIUM,   &C.    SOCIETY  V.   PARKINSON  3 

can  it  be  said  that  a  meeting  of  the  county  council,  when  engaged  in 
considering  appUcations  for  Hcenses  for  music  and  dancing,  is  such 
a  tribunal?  It  is  difficult  to  say  who  are  to  be  considered  as  judges 
acting  judicially  in  such  a  case.  The  manner  in  which  the  business 
of  such  a  meeting  is  conducted  does  not  appear  to  present  any  anal- 
ogy to  a  judicial  inquiry.  Again,  there  is  another  consideration.  It 
is  argued  for  the  plaintiffs  that  this  function  of  granting  licenses, 
which  has  been  transferred  from  the  justices  to  the  county  council,  is 
not  judicial,  but  merely  administrative.  The  justices  had  two  dis- 
tinct and  separate  duties.  They  had  judicial  duties.  They  had  to  try 
criminal  cases,  and  in  respect  of  that  duty  they  would  be  entitled 
to  the  absolute  immvtnity  which  I  have  mentioned.  They  had  also 
administrative  duties,  one  of  which  was  this  duty  of  granting  li- 
c^TiFeS^,  and  for  the  purpose  of  performing  these  they  held  consulta- 
tions among  themselves.  In  the  case  of  duties  properly  administra- 
tive, such  as  that  of  granting  licenses,  their  action  was  consultative, 
for  the  purpose  of  administration,  and  not  judicial.  When  such 
duties  are  transferred  to  the  county  council,  what  they  do  in  respect 
of  them  is  likewise  consultative  for  the  purpose  of  performing  an 
administrative  duty;  it  is  not  judicial.  That  consideration  also  ap- 
pears to  me  to  show  clearly  that  the  case  does  not  come  within  the 
doctrine  of  absolute  immunity  applicable  to  tribunals  similar  to 
courts  of  justice. 

Fry,  L.  J. :  I  am  of  the  same  opinion.  *  *  *  I  do  not  desire 
to  attempt  any  definition  of  a  "court."  It  is  obvious  that,  according 
to  our  law,  a  court  may  perform  various  functions.  Parliament  is 
a  court.  Its  duties  as  a  whole  are  deliberative  and  legislative:  the 
duties  of  a  part  of  it  only  are  judicial.  It  is  nevertheless  a  courts 
There  are  many  other  courts  which,  though  not  courts  of  justice, 
are  nevertheless  courts  according  to  our  law.  There  are,  for  instance, 
courts  of  investigation,  like  the  coroner's  court.  In  my  judgment, 
therefore,  the  existence  of  the  immunity  claimed  does  not  depend 
upon  the  question  whether  the  subject-matter  of  consideration  is  a 
court  of  justice,  but  whether  it  is  a  court  in  law.  Wherever  you 
find  a  court  in  law,  to  that  the  law  attaches  certain  privileges,  among 
which  is  the  immunity  in  question. 

But  this  argument  was  used  on  behalf  of  the  defendant.  It  was 
said  that  the  existence  of  this  immunity  is  based  on  consideration  of 
public  policy,  and  that,  as  a  matter  of  public  policy,  wherever  a  body 
has  to  decide  questions,  and  in  so  doing  has  to  act  judicially,  it  must 
be  held  that  there  is  a  judicial  proceeding  to  which  this  immunity 
ought  to  attach.  It  seems  to  me  that  the  sense  in  which  the  word 
"judicial"  is  used  in  that  argument  is  this:  It  is  used  as  meaning 
that  the  proceedings  are  such  as  ought  to  be  conducted  with  the  fair- 
ness and  impartiality  which  characterize  proceedings  in  courts  of 
justice,  and  are  proper  to  the  functions  of  a  judge,  not  that  the  mem- 
bers of  the  supposed  body  are  members  of  a  court.  Consider  to 
what  lengths  the  doctrine  would  extend,  if  this  immunity  were  ap- 
plied to  every  body  which  is  bound  to  decide  judicially  in  the  sense 
of  deciding  fairly  and  impartially.  It  would  apply  to  assessment 
committees,  boards  of  guardians,  to  the  inns  of  court  when  consid- 


4  TlIK    COURT 

ering  the  conduct  of  one  of  their  members,  to  the  General  Medical 
Coimcil  when  considering  questions  alYecting  the  position  of  a  medi- 
cal man.''  and  to  all  arbitrators.  Is  it  necessary,  on  grounds  of  public 
policy,  that  the  doctrine  of  immunity  should  be  carried  as  far  as  this? 
I  say  not.  I  say  that  there  is  ample  protection  afforded  in  such  cases 
by  the  ordinary  law  of  privilege.  I  find  no  necessity  or  propriety  in 
carrying  the  doctine  so  far  as  this  argument  requires.  It  is  to  be 
borne  in  mind  that  there  is  a  great  difference  between  the  constitu- 
tion of  bodies  of  the  kind  to  which  I  have  referred  and  most  courts. 
Courts  are,  for  tlie  most  part,  controlled  and  presided  over  by  some 
person  selected  as  specially  qualified  for  the  purpose ;  and  they  have 
generally  a  fixed  and  dignified  course  of  procedure,  which  tends  to 
minimize  the  risks  that  might  flow  from  this  absolute  immunity. 
These  considerations  do  not  apply  to  bodies  such  as  I  have  men- 
tioned. Furthermore,  there  is  no  precedent  for  extending  this  im- 
munity to  all  bodies  which  are  bound  to  decide  matters  "judicially," 
in  the  sense  in  which  this  argument  uses  the  term.  One  observation 
I  wish  to  make  here,  in  order  to  prevent  what  I  have  said  from  being 
misunderstood.  I  have  spoken  of  the  immunity  as  applying  to 
"courts."  I  do  not  wish  anything  I  have  said  to  be  taken  as  express- 
ing a  doubt  that  there  are  matters  done  by  a  member  of  a  court  in  a 
judicial  capacity  as  to  which,  though  done  in  his  private  room  and 
not  in  open  court,  this  immunity  may  exist.  No  question  arises  here 
as  to  such  a  case,  and  I  only  refer  to  it  to  prevent  being  misunder- 
stood. 

The  question  then  arises,  whether  the  county  council,  when  hear- 
ing application  for  licenses,  were  acting  as  a  court,  and  whether 
the  defendant  on  that  occasion  was  acting  as  a  judge  or  member  of 
that  court.  The  character  in  which  the  council  acted  turns,  in  the 
first  place,  on  the  language  of  the  statute  25  Geo.  2,  ch.  36.  The 
second  section  of  that  Act  provides  for  the  granting  by  the  quarter 
sessions  of  such  licenses  for  dancing  and  music,  etc.,  as  they  in  their 
discretion  shall  think  proper.  That  enactment  appears  to  me  to  con- 
fer on  the  justices  an  administrative  duty  or  power.  I  find  in  the 
Act  no  words  prescribing  any  particular  mode  of  procedure,  or  re- 
quiring them  to  hear  and  determine.  I  find,  on  the  contrary,  that 
certain  things  subsequent  to  the  granting  of  the  license  are  to  be  done 
in  open  court.  The  license  is  to  be  sealed  by  the  justices  in  open 
court,  and  it  is  to  be  read  by  the  clerk  of  the  peace  publicly  in  court. 
These  provisions  appear  to  me  to  be  applicable  to  a  proceeding  which 
may  take  place  in  the  magistrates'  private  room,  but  the  result  of 
which  is  afterwards  to  be  made  public  in  open  court.  The  nature  of 
the  discretion  given  and  the  language  of  the  Act  appear  to  me  to 
show  that  the  proceeding  is  administrative,  not  judicial.  We  were 
pressed  with  the  words  "in  their  discretion,"  used  in  the  statute.  It 
was  argued  that  these  words  imported  a  judicial  discretion.  But 
it  is  not  every  discretion  that  is  judicial.  The  magistrates  are  clothed 


'Compare  Groenvelt  v.  Burzvell,  i  Salk.  200  (1700);  s.  c.  I  Ld.  Raym. 
213  with  Allbuit  V.  General  Medical  Council,  L.  R.  (1889)  23,  Q.  B.  Div.  400; 
Leeson  v.  General  Medical  Council,  L.  R.  (1889)  43  Ch.  Div.  366. 


ROYAL  ACQUARIUM,   &C.    SOCIETY  V.    PARKINSON  5 

in  many  cases  with  a  discretion  that  is  not  judicial.  The  first  statute 
that  deals  with  the  county  rate  (12  Geo.  2,  ch.  29,  §  i)  says  that  the 
justices  shall  have  power  to  make  a  rate  for  such  sums  or  sum  of 
money  as  they  in  tlieir  discretion  shall  think  fit;  but  it  could  not  be 
contended  that  that  discretion  is  judicial.  There  is  nothing  in  the 
section  which  makes  the  proceeding  tliat  of  a  court,  though  it  has  to 
be  done  discreetly.  Then  comes  the  question,  whether  there  is  any- 
thing in  the  Local  Government  Act,  1888,  to  alter  the  nature  of  the 
proceeding  in  this  respect.  I  come  to  the  conclusion  that  there  is  not. 
It  is  clear  from  the  language  of  the  Act  that  it  was  intended  to  draw 
a  broad  line  between  the  administrative  and  judicial  functions  of  the 
justices,  and  to  transfer  the  former  to  the  county  council,  while  leav- 
ing the  latter  in  the  hands  of  the  justices.  Section  3  provides  that 
there  shall  be  transferred  to  the  county  council  the  administrative 
business  of  the  justices  of  the  county  in  quarter  sessions  assembled — 
that  is  to  say,  all  business  done  by  the  quarter  sessions,  or  a  com- 
mittee appointed  by  the  quarter  sessions,  in  respect  of  the  several 
matters  following;  and  these  include,  by  subsection  5,  the  licensing, 
under  any  general  Act,  of  houses  and  other  places  for  music  and 
dancing.  But  the  matter  does  not  rest  there.  For  section  78,  sub- 
section 2,  shows  the  intention  to  have  been  to  exclude  from  the  trans- 
fer of  the  magistrates'  duties  to  the  county  council  all  judicial  duties. 
That  section  provides  in  subsection  2  that  the  transfer  of  povv^ers  and 
duties  enacted  by  the  Act  shall  not  authorize  any  county  council  to 
exercise  any  jurisdiction  under  the  Summary  Jurisdiction  Acts,  or 
to  perform  any  judicial  business,  or  otherwise  act  as  justices  or  a 
justice  of  the  peace.  The  statute,  therefore,  so  far  from  giving  any 
new  color  to  the  suggestion  made  on  behalf  of  the  defendant,  leaves 
the  matter  precisely  where  it  was  before.  I,  therefore,  come  to  the 
conclusion  that  the  body  to  which  the  statements  complained  of  were 
made  was  not  a  court,  and  that  those  statements  are  not  entitled  to 
the  immunity  claimed  for  them. 
Application  dismissed.® 


^Reg  V.  London  County  Council,  L.  R.  (1892)  i  Q.  B.  190;  Boulter  v. 
Kent  Justices,  L.  R.  (1897)  A.  C.  556;  Reg  v.  London  County  Council,  71  L. 
F.  638  (1894)  ;  Fuller  v.  Colfax,  4  McCrary  (U.  S.)  535,  U  Fed.  177  (1882)  ; 
Grider  v.  Tally,  77  Ala.  422  (1884)  ;  State  v.  Thome,  112  Wis.  81,  87  N.  W. 
797.  55  L-  R-  A.  956  (1901)  ;  Staples  v.  Brown,  113  Tenn.  639  (1904)  ;  Chinn 
V.  Superior  Court,  156  Cal.  478  ( 1909) .  Compare  Queen  v.  Manchester  Justices, 
L.  R.  (1899),  I  Q.  B.  571 ;  Barratt  v.  Reams,  L.  R.  (i905),_  i  K.  B.  504;  Rex 
V.  Woodhouse,  L.  R.  (1906),  2  K.  B.  501;  Donoghue's  License,  5  Pa.  Sup. 
Ct.  I  (1897).  ■ 


TUK    COURT 


PRENTIS  7'.  ATLANTIC  COAST  LINE. 

/  Supreme  Court  of  the  United  States,  1908. 

f 

211  U.  S.  210.' 

Holmes,  J.:  These  are  bills  in  equity  brought  in  the  Circuit 
Court  to  enjoin  the  members  and  clerk  of  the  Virginia  State  Corpora- 
tion Commission  from  publishing  or  taking  any  other  steps  to  enforce 
a  certain  order  fixing  passenger  rates.  The  bills  allege,  with  some 
elaboration  of  tlie  facts,  that  the  rates  in  question  are  confiscatory, 
and  other  matters  not  necessary  to  mention,  and  set  up  the  Four- 
teenth Amendment,  etc.  The  defendants  appeared  specially,  and  by 
demurrer  and  plea  respectively  put  forward  tliat  the  proceedings 
before  the  commission  are  proceedings  in  a  court  of  the  state,  which 
tlie  courts  of  the  United  States  are  forbidden  to  enjoin,  Rev.  Stats., 
sec.  720,^  and  that  the  decision  of  the  commission  makes  the  legality 
of  the  rates  res  judicata.  On  these  pleadings  final  decrees  were  en- 
tered for  the  plaintiflfs,  and  the  defendants  appealed  to  this  court. 
Therefore,  as  the  case  is  presented,  it  is  to  be  assumed  that  the  order 
confiscates  the  plaintiffs'  property  and  infringes  the  Fourteenth 
Amendment  if  the  matter  is  open  to  inquiry.  The  question  princi- 
pally argued,  and  the  main  question  to  be  discussed,  is  whether  the 
order  is  one  which,  in  spite  of  its  constitutional  invalidity,  the  courts 
of  the  United  States  are  not  at  liberty  to  impugn. 

The  State  Corporation  Commission  is  established  and  its  powers 
are  defined  at  length  by  the  constitution  of  the  state.  There  is  no 
need  to  rehearse  the  provisions  that  give  it  dignity  and  importance 
or  that  add  judicial  to  its  other  functions,  because  we  shall  assume 
that  for  some  purposes  it  is  a  court  within  the  meaning  of  Rev.  Stat., 
sec.  720,  and  in  the  commonly  accepted  sense  of  that  word.  Among 
its  duties  it  exercised  the  authority  of  the  state  to  supervise,  regulate 
and  control  public  service  corporations,  and  to  that  end,  as  is  said 
by  the  Supreme  Court  of  Virginia  and  repeated  by  counsel  at  the  bar, 
it  has  been  clothed  witli  legislative,  judicial  and  executive  powers. 
Norfolk  &  Portsmouth  Belt  Line  R.  R.  Co.  v.  Commonwealth,  103 
Virginia,  289,  294.  .    . 

The  state  constitution  provides  that  the  commission,  in  the  per- 
formance of  the  duty  just  mentioned,  shall  from  time  to  time  pre- 
scribe and  enforce  such  rates,  charges,  classification  of  traffic,  and 
rules  and  regulations,  for  transportation  and  transmission  companies 
doing  business  in  the  state,  and  shall  require  them  to  establish  and 
maintain  all  such  public  service,  facilities  and  conveniences,  as  may 
be  reasonable  and  just.     Before  prescribing  or  fixing  any  rate  or 


'•  The  arguments  of  counsel  are  omitted  and  only  so  much  of  the  judg- 
ment given  as  relates  to  the  distinction  between  judicial  and  legislative  func- 

'"The  writ  of  injunction  shall  not  be  granted  by  any  court  of  the  United 
States  to  stay  proceedings  in  any  court  of  a  state,  except  where  such  injunc- 
tion may  be  authorized  by  any  law  relating  to  proceedings  in  bankruptcy. 
Rev.  Stat.  (1901),  sec.  720,  4  Fed.  Stat.  Ann.  509. 


PRENTIS  V.  ATLANTIC  COAST  LINE  7 

charge,  etc.,  it  is  to  give  notice  (in  case  of  a  general  order  not  di- 
rected against  any  specific  company  by  name,  by  four  weeks'  publi- 
cation in  a  newspaper)  of  the  substance  of  the  contemplated  action 
and  of  a  time  and  place  when  the  commission  will  hear  objections 
and  evidence  against  it.  If  an  order  is  passed,  the  order  again  is  to 
be  published  as  above  before  it  shall  go  into  effect.  An  appeal  to  the 
Supreme  Court  of  Appeals  is  given  of  right  to  any  party  aggrieved, 
upon  conditions  not  necessary  to  be  stated,  and  that  court,  if  it  re- 
verses what  has  been  done,  is  to  substitute  such  order  as  in  its 
opinion  the  commission  should  have  made.  The  commission  is  to 
certify  the  facts  upon  which  its  action  was  based  and  such  evidence 
as  may  be  required,  but  no  new  evidence  is  to  be  received,  and  how 
far  the  findings  of  the  commission  can  be  revised  perhaps  is  not  quite 
plain.  No  other  court  of  the  state  can  review,  reverse,  correct  or 
annul  the  action  of  the  commission,  and  in  collateral  proceedings  the 
vaHdity  of  the  rates  established  by  it  can  not  be  called  in  doubt. 

When  a  rate  has  been  fixed,  the  commission  has  power  to  enforce 
compliance  with  its  order  by  adjudging  and  enforcing,  by  its  own 
appropriate  process,  against  the  offending  company  the  fines  and 
penalties  established  by  law.  But  a  hearing  is  required,  and  the 
validity  and  reasonableness  of  the  order  may  be  attacked  again  in 
this  proceeding,  and  all  defenses  seem  to  be  open  to  the  party 
charged  with  a  breach. 

On  July  31,  1906,  under  the  provisions  outlined,  the  commission 
published  in  a  newspaper  notice  to  the  several  steam  railroad  com- 
panies doing  business  in  Virginia,  and  all  persons  interested,  that  at 
a  certain  time  and  place  it  would  hear  objections  to  an  order  pre- 
scribing a  maximum  rate  of  two  cents  a  mile  for  the  transportation 
of  passengers,  with  details  not  needing  to  to  be  stated.  A  hearing 
was  had,  and  the  complainants  (appellees)  severally  appeared  and 
urged  objections  similar  to  those  set  up  in  the  bills.  On  April  27, 
1907,  the  commission  passed  an  order  prescribing  the  rates,  but  in 
more  specific  form.  For  certain  railroads  named,  including  all  of 
the  complainants  except  as  we  shall  state,  the  rate  was  to  be  two 
cents ;  for  certain  excepted  branches  of  the  Southern  Railway  Com- 
pany, two  and  half;  for  others,  including  the  Chesapeake  Western 
Railway,  three ;  and  for  others  three  and  a  half  cents  a  mile,  with  a 
minimum  charge  of  ten  cents.  Publication  of  the  order  was  directed, 
and  at  that  stage  these  bills  were  brought. 

In  order  to  decide  the  cases  it  is  not  necessary  to  discuss  all  the 
questions  that  were  raised  or  touched  upon  in  argument,  and  some 
we  shall  lay  on  one  side.  We  shall  assume  that  when,  as  here,  a 
state  constitution  sees  fit  to  unite  legislative  and  judicial  powers  in  a 
single  hand,  there  is  nothing  to  hinder  so  far  as  the  Constitution  of 
the  United  States  is  concerned.  Dreyer  v.  Illinois,  187  U.  S.  71, 
83,  84;  Winchester  &  Strashurg  R.  R.  Co.  v.  Commonwealth,  106 
Va.  264,  268.  We  shall  assume,  as  v/e  have  said,  that  some  of 
the  powers  of  the  commission  are  judicial,  and  we  shall  assume, 
without  deciding,  that,  if  it  was  proceeding  against  the  appellees  to 
enforce  this  order  and  to  punish  them  for  a  breach,  it  then  would 


S  Tin:  COURT 

be  sitting  as  a  court  and  would  be  protected  from  interference  on  the 
part  of  the  courts  of  the  United  States. 

But  we  think  it  eciually  plain  that  the  proceedings  drawn  in  ques- 
tion here  arc  legislative  in  their  nature,  and  none  the  less  so  tliat  they 
have  taken  place  with  a  body  which  at  another  moment,  or  in  its 
l>rincipal  or  dominant  aspect,  is  a  court  such  as  is  meant  by  sec.  720. 
A  judicial  inquiry  investigates,  declares  and  enforces  Habilities  as 
they  stand  on  present  or  past  facts  and  under  laws  supposed  already 
to  exist.  That  is  its  purpose  and  end.  Legislation  on  the  other  hand 
looks  to  the  future  and  changes  existing  conditions  by  making  a  new 
rule  to  be  applied  thereafter  to  all  or  some  part  of  those  subject  to 
its  power.  The  establishment  of  a  rate  is  the  making  of  a  rule  for 
the  future,  and  therefore  is  an  act  legislative  not  judicial  in  kind,  as 
seems  to  be  fully  recognized  by  the  Supreme  Court  of  Appeals, 
Commonwealth  v.  Atlantic  Coast  Line  Ry.  Co.,  106  Va.  61,  64, 
and  especially  by  its  learned  President  in  his  pointed  remarks  in 
Winchester  and  St7'asburg  R.  R.  Co.  and  others  v.  Commonwealth, 
106  Va.  264,  281.  See  further  Interstate  Commerce  Commission 
V.  Cincinnati,  New  Orleans  and  Texas  Pacific  Ry.  Co.,  167  U.  S. 
479,  499,  500,  505 ;  San  Diego  Land  and  Town  Co.  v.  Jasper,  189 
U.  S.  439-  440. 

Proceedings  legislative  in  nature  arc  not  proceedings  in  a  court 
within  the  meaning  of  Rev.  Stat.,  sec.  720,  no  matter  what  may  be  the 
general  or  dominant  character  of  the  body  in  which  they  may  take 
place.  Soutliern  Ry.  Co.  v.  Greensboro  Ice  and  Coal  Co.,  134  Fed. 
Rep.  82,  94,  affirmed  sub  nom.  McNeill  v.  Southern  Ry.  Co.,  202 
U.  S.  543.  That  question  depends  not  upon  the  character  of  the 
body  but  upon  the  character  of  the  proceedings.  Ex  parte  Virginia, 
100  U.  S.  339,  348.  They  are  not  a  suit  in  which  a  writ  of  error 
would  lie  under  Rev.  Stat.,  sec.  709,  and  Act  of  February  t8,  1875,  ch. 
80,  18  Stat.  318.  See  Upshur  County  v.  Rich,  135  U.  S.  467;  Wallace 
V.  Adams.  204  U.  S.  415,  423.  The  decision  upon  them  can  not  be 
res  judicata  w'hen  a  suit  is  brought.  See  Reagan  v.  Farmers'  Loan 
and  Trust  Co.,  154  U.  S.  362.  A.nd  it  does  not  matter  what  inquiries 
may  have  been  made  as  a  preliminary  to  the  legislative  act.  Most 
legislation  is  preceded  by  hearings  and  investigations.  But  the  effect 
of  the  inquiry,  and  of  the  decision  upon  it,  is  determined  by  the 
nature  of  the  act  to  which  the  inquiry  and  decision  lead  up.  A  judge 
sitting  with  a  jury  is  not  competent  to  decide  issues  of  fact;  but 
matters  of  fact  that  are  merely  premises  to  a  rule  of  law  he  may 
decide.  He  may  find  out  for  himself,  in  whatever  way  seems  best, 
whether  a  supposed  statute  ever  really  was  passed.  In  Pickering  v. 
Barkley,  Style,  132,  merchants  were  asked  by  the  court  to  state 
their  understanding  as  an  aid  to  the  decision  of  a  demurrer.  The 
nature  of  the  final  act  determines  the  nature  of  the  previous  inquiry. 
As  the  judge  is  bound  to  declare  the  law  he  must  know  or  discover 
the  facts  that  establish  the  law.  So  when  the  final  act  is  legislative 
the  decision  which  induces  it  can  not  be  judicial  in  the  practical 
sense,  although  the  questions  considered  might  be  the  same  that 
would  arise  in  the  trial  of  a  case.  If  a  state  constitution  should  pro- 
vide for  a  hearing  before  any  law  should  be  passed,  and  should  de- 


DE  CHASTELLUX  V.  FAIRCIIILD  9 

clare  that  it  should  be  a  judicial  proceeding  in  rem  and  the  decision 
binding  upon  all  the  world,  it  hardly  is  to  be  supposed  that  the 
simple  device  could  make  the  constitutionality  of  the  law  res  judi- 
cata, if  it  subsequently  should  be  drawn  in  question  before  a  court 
of  the  United  States.  And  all  that  we  have  said  would  be  equally 
true  if  an  appeal  had  been  taken  to  the  Supreme  Court  of  Appeals 
and  it  had  confirmed  the  rate.  Its  action  in  doing  so  would  not  have 
been  judicial,  although  the  questions  debated  by  it  might  have  been 
the  same  that  might  come  before  it  as  a  court,  and  would  have  been 
discussed  and  passed  upon  by  it  in  the  same  v\'ay  that  it  would  deal 
with  tliem  if  they  arose  afterwards  in  a  case  properly  so-called.  We 
gather  that  these  are  the  views  of  the  Supreme  Court  of  Appeals 
itself.  Atlantic  Coast  Line  Ry.  Co.  v.  Commonwealth,  102  Va. 
599,  621.  They  are  implied  in  many  cases  in  this  and  other  United 
States  courts  in  which  the  enforcement  of  rates  has  been  enjoined, 
notwithstanding  notice  and  hearing,  and  what  counsel  in  this  case 
call  litigation  in  advance.  Legislation  can  not  bolster  itself  up  in 
that  way.  Litigation  can  not  arise  until  the  moment  of  legislation 
is  past.    See  Southern  Ry.  Co.  v.  Commonzvealth,  107  Va.  771,  yy2.'^ 


DE  CHASTELLUX  v.  FAIRCHILD. 
Supreme  Court  of  Pennsylvania,  1850. 

Error  to  the  Comm.on  Pleas  of  Bradford  County. 

Trespass  was  brought  to  May  term,  1840,  for  cutting  and  carry- 
ing away  tim.ber  trees.  On  the  trial  there  was  a  verdict  for  the 
plaintiff  for  $600,  a  new  trial  was  refused  and  judgment  was  entered 
on  the  verdict.  The  defendant  took  a  writ  of  error  in  1844  upon 
which  a  non  pros,  was  entered.  A  second  writ  of  error  was  taken 
in  1845,  the  cause  argued  in  the  Supreme  Court  and  judgment 
affirmed.  An  execution  having  issued,  the  legislature  on  March  16. 
1874,  passed  an  act  providing  that  "a  new  trial  is  hereby  granted  and 
allowed  and  directed  to  be  granted  and  allowed  by  the  court  of  com- 
mon pleas,"  in  said  case,  "with  like  effects  in  all  respects  as  if  the 
same  had  not  been  heretofore  tried  in  said  court  and  passed  upon 
on  motion  for  new  trial."  Subsequently  the  court  of  common  pleas 
set  aside  the  execution  and  the  plaintiff  brought  error. ^° 


°  The  remainder  of  the  opinion  is  omitted,  as  well  as  the  dissenting  opin- 
ions of  Fuller,  C.  J.,  and  Harland,  J.  The  decree  of  the  circuit  court  in  favor 
of  the  railroads  that  were  the  plaintiffs  below  was  reversed  on  the  ground  that 
the  proceedings  had  been  prematurely  brought. 

Accord:  Mississippi  R.  Com.  v.  ///.  Cent.  R.  Co.,  203  U.  S.  335  (1906)  ; 
Knoxville  v.  Knoxznlle  Water  Co.,  212  U.  S.  I  (1909)  ;  Louisville  &  Nashville 
R.  Co.  V.  Garrett,  22,1  U.  S.  298  (1913).  Contra:  People  v.  Willcox,  194  N.  Y. 
383  (1909). 

^^  The  statement  of  facts  is  abridged  and  the  arguments  of  counsel 
omitted. 


lO  TIIF.    COURT 

GiHSON,  C.  T- :  If  ''^'ly  thiui:^  is  self-evident  in  the  structure  of  our 
government,  it  is,  that  the  legislature  has  no  power  to  order  a  new 
trial,  or  to  direct  the  court  to  order  it,  either  before  or  after  judg- 
ment. The  power  to  order  new  trials  is  judicial;  but  the  power  of 
the  legislature  is  not  judicial.  It  is  limited  to  the  making  of  laws; 
not  to  the  exposition  or  execution  of  them.  The  functions  of  the 
several  parts  of  the  government  are  thoroughly  separated,  and  dis- 
tinctlv  assigned  to  the  principal  branches  of  it,  the  legislature,  the 
executive,  and  the  judiciary,  which,  within  their  respective  depart- 
ments, are  equal  and  co-ordinate.  Each  derives  its  authority,  medi- 
ately or  immediately,  from  the  public ;  and  each  is  responsible,  medi- 
ately or  immediately,  to  the  people  for  the  exercise  of  it.  When 
either  shall  have  usurped  the  powers  of  one  or  both  of  its  fellows, 
then  will  have  been  effected  a  revolution,  not  in  the  form  of  the 
government,  but  in  its  action.  Then  will  there  be  a  concentration  of 
the  powers  of  the  government  in  a  single  branch  of  it,  which,  what- 
ever may  be  the  form  of  the  constitution,  will  be  a  despotism — a 
government  of  unlimited  irresponsible,  and  arbitrary  rule.  It  is  idle 
to  say  that  the  authority  of  each  branch  is  defined  and  limited  in  the 
constitution,  if  there  be  not  an  independent  power  able  and  willing 
to  enforce  the  limitations.  Experience  proves  that  it  is  thoughtlessly 
but  habitually  violated ;  and  the  sacrifice  of  individual  right  is  too 
remotely  connected  with  the  objects  and  contests  of  the  masses  to 
attract  tlieir  attention. 

From  its  very  position,  it  is  apparent  that  the  conservative  power 
is  lodged  with  the  judiciary,  which,  in  the  exercise  of  its  undoubted 
right,  is  bound  to  meet  every  emergency;  else  causes  would  be  de- 
cided not  only  by  the  legislature,  but,  sometimes,  without  hearing  or 
evidence.  The  mischief  has  not  yet  come  to  that,  for  the  legislature 
has  gone  no  farther  than  to  order  a  rehearing  on  the  merits ;  but  it 
is  no  more  intolerable  in  principle  to  pronounce  an  arbitrary  judg- 
ment against  a  suitor,  than  it  is  injurious  in  practice  to  deprive  him 
of  a  judgment,  which  is  essentially  his  property,  and  to  subject  him 
to  the  vexation,  risk  and  expense  of  another  contest. 

It  has  become  the  duty  of  the  court  to  temporarize  no  longer,  but 
to  resist,  temperately,  though  firmly,  any  invasion  of  its  province, 
whether  great  or  small. 

We  are  bound  to  say,  therefore,  that  Braddee  v.  Brownfield'^'^  is 
not  law,  and  that  it  was  erroneously  decided.  As  the  act  before  us 
is  null,  the  plaintifif  ought  to  have  been  allowed  to  proceed  on  his 
judgment. ^- 

Order  reversed. 


"  23L&.S-XPa.)  271  0841 )  • 

"Accord  :  Merrill  v.  Sherburne,  i  N.  H.  199,  8  Am.  Dec.  52  (1818)  ;  Leuns 
V.  Webh,  3  Greenl.  (Maine)  326  (1825)  ;  Youngv.  State  Bank, 4lnd.  301  (1853)  ; 
Taylor  v.  Place,  4  R.  I.  324  (1856)  ;  Trustees  v.  Bailey,  10  Fla.  238  (1863)  ; 
People  V.  Frisbie,  26  Cal.  135  (1864)  ;  Weaver  v.  Lapsley,  43  Ala.  224  (1S69)  ; 
Griffin's  Exr.  v.  Cunningham,  20  Gratt.  (Va.)  31  (1870)  ;  Arnold  v.  Kelley,  5 
W.  Va.  446  (1872).  See,  also,  Marbury  v.  Madison,  i  Cranch  (U.  S.)  I37i  2 
L.  ed.  60  (1803)  ;  Dupy  v.  Wick-wire,  i  D.  Chip.  (Vt.)  237,  i  Am.  Dec.  729 
(1814);  Holden  v.  James,  ii  Mass.  396,  6  Am.  Dec.  174  (1814);  Picquet, 
appellant,  22  Mass.  65   (1827)  ;  Hill  v.  Sunderland,  3  Vt.  507   (1831)  ;  State 


PEOPLE  V.  MANN  II 

THE   PEOPLE  V.   MANN. 
Supreme  Court  of  New  York,  1885. 

97  N.  Y.  530. 

An  appeal  from  an  order  of  the  general  term  of  the  Supreme 
Court  awarding  a  writ  of  prohibition,  directed  to  the  defendants, 
commanding  them  to  desist  from  further  proceedings  in  an  action 
before  Mann,  a  justice  of  the  peace,  who  was  over  seventy  years  of 
age.  Article  6,  sec.  12  of  the  State  Constitution  provided  that,  "no 
person  shall  hold  the  office  of  justice  or  judge  of  any  court  longer 
than  until  and  including  the  last  day  of  December  next  after  he  shall 
be  seventy  years  of  age."^^ 

Andrews,  J. :  The  question  presented  is  whether  the  limitation 
of  age  contained  in  this  section  applies  to  justices  of  the  peace.  That 
it  does  so  apply  has  been  determined  by  the  judgment  now  under 
review.  The  same  question  was  considered  by  the  general  term  of 
the  fourth  department  in  the  case  of  People  v.  Dohr'mg  (2  Supr.  Ct. 
Rep.  458),  and  was  determined  the  other  way.  The  Dohring  case 
was  decided  in  1873,  and  the  question  now  presented  for  the  first 
time  in  this  court,  has  never,  so  far  as  we  can  ascertain,  been  con- 
sidered in  tlie  courts  below,  except  in  that  case  and  the  one  now 
before  us,  which  was  first  decided  at  special  term  in  January,  1884. 
It  has  come  to  the  knowledge  of  the  court  from  official  sources  that 
since  the  adoption  of  the  present  judiciary  article  of  the  constitution 
many  persons  in  different  parts  of  the  state  have  been  elected  justices 
of  the  peace,  who  have  served  after  having  attained  the  age  of 
seventy  years,  some  having  been  elected  before,  and  others  after 
they  had  reached  that  age.  The  question  is  therefore  important,  not 
only  because  it  involves  the  interpretation  of  a  constitutional  provi- 
sion, but  also  for  the  reason  that  it  practically  affects  important 
public  and  private  interests. 


V.  Fleming,  7  Hump.  (Tenn.)  152,  46  Am.  Dec.  73  (1846)  ;  Burch  v.  Newbury, 
10  N.  Y.  374,  Seld.  notes  28  (1852)  ;  McDaniel  v.  Correll,  19  111.  226,  68  Am. 
Dec.  587(1857)  ;  Denny-v.  Mattoon, 84  Mass.  361,  79  Am.  Dec.  784  (1861)  ;  Rich- 
nrds  V.  Rote.  68  Pa.  248  (i87-L)  :  Sparhawk  v.  Sparhazvk,  116  Mass.  315  (1^4). 
In  Merrill  V.  Sherburne,  1  N.  H.  199  (1818),  it  is  said  per  Woodbury,  J. ;  "A 
marked  difference  exists  between  the  employrnents  of  judicial  and  legislative 
tribunals.  The  former  decide  upon  the  legality  of  claims  and_  conduct;  the 
latter  make  rules,  upon  which,  in  connection  with  the  constitution,  those  de- 
cisions should  be  founded.  It  is  the  province  of  judges  to  determine  what  is 
the  law  upon  existing  cases.  In  fine,  the  law  is  applied  by  the  one,  and  made 
by  the  other.  To  do  the  first,  therefore,  to  compare  the  claims  of  parties 
with  the  laws  of  the  land  before  established,  is  in  its  nature  a  judicial  act. 
But  to  do  the  last,  to  pass  new  rules  for  the  regulation  of  new  controversies,  is 
in  its  nature,  a  legislative  act;  and  if  these  rules  interfere  with  the  past  or 
the  present,  and  do  not  look  wholly  to  the  future,  they  violate  the  definition 
of  a  law,  'as  a  rule  of  civil  conduct' ;  because  no  rule  of  conduct  can  with  con- 
sistency operate  upon  what  occurred  before  the  rule  itself  was  promulgated." 
"  The  statement  of  facts  is  condensed,  arguments  of  counsel  and  part  of 
the  opinion  of  the  court  omitted. 


12  THE    COURT 

The  policy  of  fixing  by  constitutional  provision  a  limitation  of 
age  to  judicial  service,  first  established  in  tliis  state  in  respect  to  the 
chancellor  and  judges  of  the  Supreme  Court  by  the  constitution  of 
1822,  and  abandoned  in  the  constitution  of  1846,  was  re-established 
by  the  judiciary  article  of  1869,  primarily  with  reference  to  the  terms 
c'f  those  judges,  which  by  the  same  article  had  been  extended  to  the 
period  of  fourteen  years  (Folger,  J.,  People  v.  Gardner,  45  N.  Y. 
819). 

It  is,  however,  we  think,  quite  evident  that  the  limitation  does 
not  apply  to  every  officer  who  is  invested  with  judicial  power.     It 
is  the  "office  of  justice  or  judge  of  any  court,"  which  the  clause 
declares  shall  not  be  held  by  any  person  beyond  tlie  age  specified. 
But  the  judicial  function  may  be  vested  in  a  person,  to  be  exercised 
for  certain  purposes  and  on  particular  occasions,  who  does  not  hold 
the  "office  of  justice  or  judge  of  any  court,"  v/ithin  the  meaning  of 
this  clause.    The  constitution  itself  furnislies  one  illustration.    The 
president  of  the  senate,  the  senators  and  the  judges  of  the  Court  of 
Appeals,  comprise  the  court  for  the  trial  of  impeachments,  created 
/by  the  first  section  of  the  sixth  article.    But  neither  the  Lieutenant- 
\ Governor,  nor  the  senators,  although  they  act  as  judges  on  the  trial 
/of  an  impeachment,  "hold  the  office  of  justice  or  judge  of  any  court." 
( The  office  which  the  Lieutenant-Governor  holds  is  that  indicated  by 
his  title,  and  so  of  the  senators.    The  judicial  function  \yhich  they 
exercise  in  the  particular  case  is  annexed  to  their  respective  offices. 
They  sit  as  judges  on  the  trial  of  impeachments,  but  they  do  not  hold 
the  office  of  judges  while  acting  as  such.  We  think  it  plain  that  they 
would  not  be  disqualified  from  acting  as  members  of  the  court  after 
attaining  the  age  of  seventy  years,  under  the  clause  in  the  constitu- 
tion now  in  question.    Another  illustration  is  furnished  in  the  stat- 
)utes  creating  mayor's  courts  in  cities,  by  which  judicial  powers  are 
/  vested  for  certain  limited  purposes  in  mayors,  and  other  municipal 
officers.   There  is  such  a  court  in  the  city  of  Hudson,  and  it  may  be 
in  other  cities,  which  is  held  by  the  mayor,  or  by  the  mayor  in  con- 
junction with  other  officers.    The  mayor  in  tliese  cases  acts  as  a 
'judge,  or  magistrate,  but  the  judicial   function  is  incident  to  the 
office  of  mayor.    He  does  not  hold  tlie  office  of  judge,  and  if  eligible 
to  the  office  of  mayor.  -iiIim-l!l>:Ii  -  cventy  years  of  age,  he  may,_  we 
tliink,  discharge  the  duties  coriiicclcd  with  that  office  after  that  time, 
including  the  holding  of  the  mayor's  court,  without  a  violation  of  the 
constitution. 

Returning  to  the  immediate  point  now  in  judgment  the  question 
recurs:  Does  a  justice  of  the  peace  "hold  the  office  of  justice  or 
judge  of  any  court."  v/ithin  the  meaning  of  sec.  13,  art.  6,  of  the  con- 
stitution? This  office  was  not  created  by  the  constitution.  Justices 
of  the  peace  had  been  known  to  the  common  law  of  England  for  a 
century  and  a  half  before  America  was  discovered.  They  were,  in 
their  original  institution,  mere  conservators  of  the  peace,  exercising 
no  judicial  function.  It  is  said  in  Burns'  Justice  (vol.  3  [19th  ed.], 
p.  4),  that  bv  the  statute  i  Edw.  Ill,  which  is  the  first  statute  that 
ordains  the  assignment  of  justices  of  the  peace  by  the  king's  com- 
mission, "they  had  no  other  power  but  only  to  keep  the  peace."    But 


PEOPLE  V.  MANN 


13 


from  time  to  time  their  powers  were  enlarged,  and  they  came  to  con- 
stitute a  very  important  agency  in  the  administration  of  local  gov- 
ernment in  England.  They  discharged  a  great  variety  of  duties  con- 
nected witli  the  support  of  the  poor,  the  reparation  of  highways,  the 
imposition  and  levying  of  parochial  rates  and  other  local  affairs. 
See  enumeration  in  Stat.  16,  Geo.  II,  ch.  18.  They  were  invested 
with  judicial  powers  for  the  first  time  (it  seems)  by  the  Statute  34, 
Edw.  Ill,  ch.  I,  which  gave  them  power  to  try  felonies,  but  then 
only  when  two  or  more  acted  together,  and  not  singly,  and  it  is  said 
by  Blackstone  (vol.  i,  p.  349),  "they  then  acquired  the  more  hon- 
orable appellation  of  justices."  I  do  not  find  that  they  ever  exercised 
in  England  jurisdiction  in  civil  causes. 

The  office  of  justice  of  the  peace  was  brought  here  by  the  Eng- 
lish colonists.  From  the  earliest  colonial  period  it  has  existed  in 
this  country.  By  the  code  known  as  "the  Duke's  Laws"  for  the  gov- 
ernment of  the  colony  of  New  York,  promulgated  in  1665,  justices 
of  the  peace  were  commissioned  for  the  towns  in  the  province,  with 
the^same  powers  as  in  England.  The  judicial  establishment  created 
by  "the  Duke's  Laws,"  comprised  a  local  court  in  each  town,  with 
jurisdiction  of  actions  of  debt  and  trespass  under  £5,  to  be  held 
by  the  constable  and  overseers  of  the  town ;  a  court  of  sessions  for 
each  of  the  three  ridings,  and  a  court  of  assize  for  the  whole  prov- 
ince. Justices  of  the  peace  vvere  entitled  to  sit  as  members  of  the 
court  of  sessions  and  the  court  of  assize,  but  not  of  the  town  courts. 
In  1691  the  judicial  system  was  reorganized  by  an  act  of  the  colo- 
nial legislature.  By  that  act  the  town  courts  were  changed  into 
courts  of  justice  of  the  peace,  to  be  held  by  one  justice  and  two  free- 
holders. It  was  not  until  1737  that  a  justice  of  the  peace  was  em- 
powered singly  to  hold  a  court  for  the  trial  of  actions.^*  (See  mon- 
ograph upon  the  courts  in  this  state  by  Chief  Judge  Daly,  preface 
I  E.  D.  Smitli's  Rep.;  also  3  Daly's  Rep.  App.)  But  from  the 
earliest  colonial  period  until  this  time,  justices  of  the  peace  here,  as 
in  England,  have  been  invested  with  various  and  important  functions 
connected  with  local  administration,  quite  independent  of  tlieir  judi- 
cial authority.  A  glance  at  the  statutes  will  show  how  important  a 
part  these  officers  have  had  in  the  administration  of  the  poor  laws, 
tlie  highway  acts,  the  adjustment  of  town  charges,  and  indeed  in 
nearly  every  department  of  local  administration.  It  is  important  to 
notice  that  the  judicial  function  exercised  by  justices  of  the  peace 
was  a  graft  upon  tlieir  original  authority,  and  "that  the  enlargement 
of  their  powers  has  not  been  in  this  direction  alone,  but  that  by 
gradual  accretion  they  have  come  to  constitute  a  most  important 
factor  in  the  corporate  administrative  life  of  tov^^ns  and  counties. 
The  gradual  growth  of  their  powers  and  functions  furnishes  a  good 
illustration  of  the  manner  in  which  institutions  grow  up  and  adapt 
themselves  to  the  changing  conditions  and  demands  of  society,  until 


A  "  In  Pennsylvania,  an  act  of  May  28,  1715,  3  Stat,  at  Lar^e  63,  permitted 
a  single  justice  of  the  peace  to  hear  civil  cases  involving  debts  under  forty 
shillings. 


14  THE    COURT 

they  are  brt)ught  to  subserve,  in  the  most  effective  way,  the  pubUc 
interests. 

We  liave  failed  in  the  purpose  of  this  brief  historical  reference 
to  the  orig^in  and  ffrowth  of  the  office  of  justice  of  the  peace,  unless 
it  shows  how  widely  it  differs  in  the  circumstances  of  its  institution 
and  development,  and  in  the  variety  of  its  functions,  from  the  ofhce 
of  judiije  of  an  ordinary  court.  We  know,  from  observation,  that 
justices  of  the  peace  are  not  in  common  speech  known  as  judges, 
but  are  uniformly  called  by  the  distinctive  title  of  their  office.  Un- 
questionably tlieir  jurisdiction  as  a  tribimal  for  the  trial  of  small 
causes  is  now  the  most  important  of  their  functions,  but  they  have 
never  lost  their  character  as  administratitve  officers,  and  in  this  re- 
spect they  occupy  a  position  and  character  and  exercise  powers 
unique,  and  in  many  respects  quite  dissimilar  to  those  exercised  by 
other  judicial  officers. ^^ 

The  order  of  the  general  and  special  terms  should  be  reversed 
and  the  writ  dismissed. 


THE  PEOPLE  OF  THE  STATE  OF  NEW  YORK  v.  ROTOLO. 

County  Court,  Oswego  County,  1908. 
61  Misc.  (N.  Y.)  579. 

Three  indictments  for  violation  of  the  Excise  Law. 

Motion  to  dismiss  the  same  upon  the  ground  that,  when  the  evi- 
dence was  presented  to  the  grand  jury  and  the  indictment  found,  no 
court  was  in  session  at  Oswego,  and  the  acts  of  the  grand  jury  were 
void.^^ 

Stowell,  J. :  On  January  6,  1908,  a  trial  term  of  the  Supreme 
Court,  with  a  grand  jury,  began  at  the  courthouse  in  Oswego  and 
continued  until  January  31,  when  the  presiding  judge  made  an  order 
"That  this  court  be  continued  open  but  stand  in  recess  until  such 
time  as  it  shall  be  adjourned  by  the  court."  No  further  term  or 
session  of  the  court  was  held  until  February  26.  On  January  26, 
the  presiding  judge  discharged  the  trial  jurors  and  excused  the 
court  officers  and  attendants  from  further  service;  and,  during  the 
interim  between  January  31  and  February  26,  he  was  absent  from  the 
city  of  Oswego. 


"As  to  whether  the  court  of  a  justice  of  the  peace  is  a  court  of  record 
the  American  authorities  arc  divided  and  the  question  depends  largely  on 
local  statutes  and  practice.  They  have  been  held  courts  of  record  in  Connecti- 
cut. McVeigh  v.  Ripley,  77  Conn.  136  (1904)  and  Delaware,  Cloud  v.  The 
State,  2  Harr.  (Del.)  361  (1838)  ;  contra,  West  Virginia,  Roberts  v.  Hickory 
Camp,  C.  &  C.  Co.,  58  W.  Va.  276  (1905). 

The  civil  jurisdiction  of  a  justice  of  the  peace  is  wholly  statutory.  Gtirn- 
sey  v.  Lovell,  9  Wend.  (N.  Y.)  319  (1832)  ;  Albrighl  v.  Lab  p.  26-Ea.  QO 
(1856)  ;  Schroder  v.  Ehlers,  31  N.  J.  L.  44  (1864)  ;  Norton  v.  Elliott,  90  Ala. 
480,  8  So.  103  (1889). 

"A  brief  portion  of  the  opinion  is  omitted. 


NEW  YORK  V.  ROTOLO  1 5 

On  February  4,  the  judge  h^d  a  special  term  of  the  Supreme 
Court  at  Syracuse,  which  continued  several  days,  and  he  was  pre- 
sumably engaged  in  duties  of  his  office  during  all  the  time  between 
January  31  and  February  26,  at  other  places  than  in  Oswego  County. 

The  evidence  against  defendant  was  presented  to  the  grand  jury 
February  4  or  5,  and,  on  the  fifth,  the  grand  jury  adjourned  until 
February  26  at  which  time  they  were  discharged.  I  am  unable  to 
see  that,  with  the  judge  holding  court  in  Onondaga  County,  a  grand 
jury  sitting  in  Oswego  County  have  power  to  find  an  indictment. 

A  court  has  been  defined  to  be  "an  organized  body  with  defined 
powers,  meeting  at  certain  times  and  places  for  the  hearing  and  de- 
cision of  cases  and  other  matters  brought  before  it  and  aided  in  its 
proper  business  by  its  proper  officers."  Matter  of  Choate,  24  Abb. 
N.  Cas.  430-433.  "A  place  where  justice  is  judiciously  administered. 
*  *  *  A  court  is  properly  composed  of  persons  consisting  of  the 
judge  or  judges  and  other  proper  officers,  united  together  in  a  civil 
organization,  and  invested  by  law  with  the  requisite  functions  for 
the  administration  of  justice.  *  *  *  The  court  is  clearly  an  organ- 
ization invested  by  law  v/ith  certain  functions  for  the  administration 
of  justice.  *  *  *  When  summoned,  sworn  and  organized,  the 
grand  jury  are  a  constitutent  part  of  the  court,  for  the  performance 
of  the  functions  and  duties  devolved  upon  the  court,  as  much  as  a 
body  of  twelve  petit  jurors  impaneled  for  the  trial  of  a  person." 
Id.  435- 

"The  court  is  the  totality  of  the  constituent  parts.  It  consists 
of  the  entire  judicial  organization  for  the  trial  of  causes  and  it  is 
immediately  present  whenever  and  wherever — from  the  opening  to 
the  adjournment  of  the  sitting — these  constituent  parts  are  actually 
performing  the  functions  devolving  upon  them  by  law."  The  times 
and  places  for  holding  terms  of  court  are  fixed  by  statute.  Code  Civ. 
Pro.,  par.  238.  In  Matter  of  Savin,  131  U.  S.  267,  the  court  said: 
"We  are  of  the  opinion  that  within  the  meaning  of  the  statute  the 
court,  at  least  when  in  session,  is  present  in  every  part  of  the  place 
set  apart  for  its  own  use,  and  for  the  use  of  its  officers,  jurors  and 
witnesses." 

I  think  that  the  attempt  of  the  learned  justice  to  keep  the  court 
open,  he  being  in  the  meantime  absent  from  the  county  and  part  of 
the  time  holding  a  term  of  court  at  Syracuse,  is  not  warranted  by 
the  law  or  practice  and  that  the  action  of  the  grand  jury  during  that 
time  was  null  and  void.^^ 

Motion  granted. 


'^^  Dunn  V.  State,  2  Ark.  229,  35  Am.  Dec.  54  (1839),  at  p.  252;  In  matter 
of  King's  Co.  Elev.  Railroad  Co.,  78  N.  Y.  383  (1879)  ;  Greenzvood  v.  Brad- 
ford, 128  Mass.  296  (1880)  ;  Lewis  v.  Hoboken,  42  N.  J.  L.  377  (1880)  ;  Ex 
parte  Gardner,  22  Nev.  280,  39  Pac.  570  (1895)  ;  White  County  v.  Gwin,  136 
Ind.  562  (1893)  ;  Putts  V.  Armof.s  Ejlgte.  164  Pa.  2.  .^0  Atl.  357,  26  L.  R.  A. 
213  (1894)  ;  State  v.  Woodson,  161  Mo.  444,  61  S.  W.  252  (1900)  ;  Johnston 
V.  Hunter,  50  W.  Va.  52,  40  S.  E.  448  (1901)  ;  Mitchell  v.  Emmons,  104  Maine 
76  (1908)  ;  Moline  v.  Cliicaqo,  B.  &  O.  R.  Co.,  262  111.  52  (1914).  As  to  terms 
of  court,  see  Mj/rf"-"  ^  ^"ilv  MuUpr  3S  Pa.  270  (iS^)!")  ;  Branson  v.  Schnlten, 
104  U.  S.  410,  26  L.  ed.  797  (1881)  ;  Von  Schmidt  v.  Widber,  99  Cal.  511,  34  Pac. 
109  ( 1893) .  As  to  places  for  holding  court,  see  King  v.  Kina.  i  Penn.  &  W-  CPa) 


l6  THE    COURT 

KIMBLE   v'.    DAILEY. 

Supreme  Court  of  Iowa,  1905. 

127  Toica  665." 

Ladd,  J.:  Prior  to  the  appointment  of  J.  I.  Dailey,  in  1892,  as 
gn-iardian  of  B.  F.  Kimble,  who  had  been  adjudged  insane,  Martin 
bavis  had  acted  in  that  capacity,  and  had  procured  an  order  of 
court  directing  him  to  sell  160  acres  of  land  to  the  Oak  and  High- 
land Park  Improvement  Company  for  the  consideration  of  $60,000, 
of  which  $5,000  was  to  be  paid  in  cash,  $5,000  in  one  year,  $10,000 
in  two  years,  and  $40,000  in  five  years,  with  interest  at  seven  per 
cent,  per  annum  on  deferred  payments.  Before  the  order  was  exe- 
cuted, Davis  was  succeeded  by  Dailey  as  guardian,  and  he  was  di- 
rected by  the  court  to  carry  out  the  contract  of  his  predecessor.  This 
was  done,  and  the  Oak  and  Highland  Park  Improvement  Company, 
upon  receiving  a  deed,  conveyed  to  the  Auburn  Heights  Land  Com- 
pany. The  land  was  platted  into  blocks  and  lots,  and  the  lots  divided 
into  thirteen  groups,  on  each  of  which  was  executed  a  mortgage  to 
a  trustee,  securing  ten  bonds  of  the  face  value  of  $1,000  each.  These 
130  bonds  were  delivered  to  the  guardian  as  security  for  the  pur- 
chase price.  When  the  cash  payment  was  made  he  surrendered  to 
the  Oak  and  Highland  Park  Improvement  Company  one  block  of  ten 
bonds,  and  one  of  like  number  when  the  second  $5,000  was  paid. 
Subsequently  the  officers  of  the  company  requested  him  to  deliver  to 
them  three  blocks  of  ten  bonds  each,  to  be  sold  and  the  proceeds 
applied  in  improving  the  property.  The  guardian  did  so,  but,  as  the 
testimony  tended  to  show,  upon  the  advice  of  a  district  judge  when 
at  his  home  sick.  It  will  be  noted  that  in  turning  over  these  thirty 
bonds  the  guardian  parted  with  security  on  three  of  the  thirteen 
groups  of  lots,  and  so  did  on  the  mere  promise  of  the  officers  to  im- 
prove the  remaining  property  against  which  the  guardian  retained 
a  lien. 

One  of  the  exceptions  to  the  final  report  of  the  guardian  raises 
the  question  as  to  whether  the  guardian  should  be  charged  with  the 
value  of  these  bonds.  The  advice  of  the  judge,  given  orally  outside 
of  court,  furnished  no  justification  for  what  he  did.  What  the  judge 
said  was  entitled  to  no  more  consideration  than  a  similar  view  ex- 
pressed by  any  other  equally  reputable  lawyer  would  have  been. 
Judges  are  authorized  by  statute  to  make  certain  orders  in  vacation, 
and  these  are  expressly  defined  to  be  directions  made  in  writing 
(sec.  3842,  Code), and  when  so  made  are  to  be  filed  forthwith  with  the 


15  (1829)  ;  Eaton  &  Hamilton  County  v.  Varniim,  10  Ohio  St.  622  (1858)  ;  Gould 
V.  Bennett,  59  N.  Y.  124  (1874)  ;  State  v.  Beverly,  43  N.  J.  L.  139  (1881)  ; 
Williams  v.  Rentzel,  60  Ark.  155,  29  S.  W.  374  (1895)  ;  and  compare  Smith 
V.  Jones,  23  La.  Ann.  43  (1871)  ;  Christie  v.  Boivne,  76  Hun  (N.  Y.)  42 
(■1894);  Bates  V.  Sahin,  64  Vt.  511,  24  Atl.  1013  (1892);  Litchfield  Bank  v. 
Church,  29  Conn.  137  (i860).  King  v.  Faher  &  Co.,  51  Pa.  387  0.865). 

"  The  statement  of  facts  is~onlilt<?d  and  onTyTRaf  part  of  the  opinion  of 
the  court  relating  to  the  unofficial  action  of  the  judge  is  printed. 


KIMBLE  V.  DAILEY  ly 

clerk  (sec.  3846,  Code).  Bristol  Savings  Bank  v.  Judd,  116  Iowa,  26. 
The  power  of  a  judge  in  vacation  to  make  orders  or  exercise  judi- 
cial functions  is  that  only  which  is  conferred  by  statute.  Prosser 
V.  Prosser,  64  Iowa,  378;  Laiighlin  v.  Peckham,  66  Iowa,  121 ;  Blair 
V.  Reading,  99  111.  600;  17  Am.  &  Eng.  Encyc.  of  Law  (2d  ed)  724.^^ 
And  nowhere  in  the  code  is  he  authorized  to  advise  officers  of  courts 
or  others,  or  to  make  oral  directions,  in  any  matter.  On  the  con- 
trary, he  is  prohibited  from  practicing  as  an  attorney  or  counselor 
at  law,  and  from  giving  "advice  in  relation  to  any  action  pending  or 
about  to  be  brought  in  any  of  the  courts  of  this  state."  Section  281, 
Code.  The  functions  of  his  office  are  not  advistory,  but  to  direct  and 
command,  and  what  he  may  say  outside  of  court,  unless  reduced  to 
writing  so  as  to  constitute  an  order,  is  not  official,  and  can  be  re- 
garded as  of  no  more  consequence  than  it  wovild  if  spoken  by  him 
when  not  a  judge.  State  Central  Sav.  Bank  v.  Fanning  Bail-Bearing 
Chain  Co.,  118  Iowa,  698,  709;  Whitlock  v.  Wade,  117  Iowa,  153; 
Young  v.  Rothrock,  121  Iowa,  588;  In  re  Thomas'  Estate,  26  Colo. 
1 10.  In  the  last  case  the  court  said :  "It  is  not  the  duty  of  an  incum- 
bent of  a  judicial  position  to  advise  parties  to  any  action  regarding 
their  rights  or  duties,  or  to  make  any  orders  in  relation  to  them, 
except  when  the  matter  calling  for  an  order  is  presented  to  him  in 
his  official  capacity;  and  mere  advice  or  suggestion  upon  his  part 
regarding  matters  which  are  not  before  him  for  consideration,  and 
in  which  he  does  not  assume  to  act  judicially,  are  no  protection  to 
those  who  choose  to  rely  upon  them."  In  Marlow  v.  Marlow,  48 
Iowa,  640,  and  Latham  v.  Myers,  57  Iowa,  519,  the  orders  were 
made  by  the  court  and  overlooked  in  making  up  the  record,  and  oral 
evidence  of  what  the  orders  were  seems  to  have  been  received  with- 
out objection,  rather  than  a  record  thereof  entered  nunc  pro  tunc. 
In  Harlin  v.  Stevenson,  30  Iowa,  374,  the  payments,  though  made 
on  the  oral  advice  of  the  judge,  were  subsequently  approved  in  a 
settlement  with  the  county  court,  which  was  in  no  manner  assailed. 
No  order  was  entered  by  the  judge  in  this  case,  and  what  he  may 
have  said  in  conversation  with  the  guardian  furnished  no  justifica- 
tion for  the  conduct  of  the  latter  in  surrendering  the  bonds.-" 

"In  Pittsburg,  F.  &  W.  R.  Co.  v.  Hurd,  17  Ohio  St.  144  (1866),  it  is  said 
per  Scott,  J. :  "Jurisdiction  at  chambers  is  incidental  to  and  grows  out  of 
the  jurisdiction  of  the  court  itself.  It  is  the  power  to  hear  and  determine  out 
of  court,  such  questions  arising  between  the  parties  to  a  controversy,  as  might 
well  be  determined  by  the  court  itself,  but  which  the  legislature  has  seen  fit 
to  intrust  to  the  judgment  of  a  single  judge,  out  of  court  without  requiring 
them  to  be  brought  before  the  court  in  actual  session.  It  follows  that  the 
jurisdiction  of  a  judge  at  chambers,  can  not  go  beyond  the  jurisdiction  of  the 
court  to  which  he  belongs,  or  extend  to  matters  with  which  the  court  has 
nothing  to  do."  See  further,  Larco  v.  Sasanewa,  30  Cal.  560  (1866)  ;  Cnmm. 
V.  Maqee,  8  Pa.  240  (1848)  ;  Pressley  v.  Harrison,  102  Ind.  14  (1884)  ;  Clover 
V.  Adams,  L.  K.  5  (J.  B.  U.  622  (1881)  ;  Gricrson  v.  Harmon,  16  S.  Car.  618 
(1881)  ;  Key  v.  Paul,  61  N.  J.  L.  133  (1897). 

""  The  principal  case  is  to  be  distinguished  from  those  in  which  formal 
application  is  made  to  a  chancellor  or  judge  for  instructions  in  his  official  ca- 
pacity. Gibbins  v.  Shepard,  125  Mass.  541  (1878)  ;  Baxter  v.  Baxter,  43  N.  J. 
Eq.  82  (1887)  ;  Nobbs  v.  Law  Reversionary  Interest  Soc.,  L.  R.  (1896),  2  Ch. 
Div.  830. 

2 — Civ.  Proc. 


1 8  THF.    COURT 

PERSEY    r.    DeB. 

AssizKS,  1372. 

Liber  Assisaniin,  45  Edu^ard  III,  3."' 

Heiirv  Torscy  and  another  once  brought  an  assize  of  of  novel 
disseisin  against  one  A.  DeB.  before  Monbray  and  Wakbruge — and 
pending  the  assize,  Wakbruge  died,  and  a  commission  was  directed 
to  tlie  said  Henry  to  be  associated  as  companion  to  the  said  Mon- 
seigneur  Monbray,  ad  oinnes  /Issisas  coram  quibuscunque  Jiisticiares 
arrauiment  capieret,  etc.,  and  now  Henry  was  summoned  to  this 
assize  and  he  appeared  by  attorney. 

Holt  :--  Sir,  you  see  well  how  Monseigneur  John  Monbray  and 
Henry  Persey  are  justices  to  take  this  assize,  and  Henry  can  not  be 
a  party  and  a  judge  and  take  this  assize,  and  Monseigneur  John  can 
not  take  it  without  a  companion,  v.^herefore  on  this  day  nothing  can 
be  done. 

FiTZ,  J. :  Sir,  this  assize  was  brought  by  Henry  at  a  time  when 
Wakbruge  was  justice,  and  it  is  not  reasonable  that  the  suit  of 
Henry  should  be  prejudiced  because  of  a  thing  that  did  not  happen 
because  of  his  own  act,  nor  of  his  default,  and  the  said  Henry  was 
made  justice  pending  his  suit  by  command  of  the  King;  a  matter  in 
which  he  had  no  choice.  Wherefore  it  is  not  reasonable  that  his 
suit  should  be  delayed  on  this  account. 

And  afterward  he  would  have  been  nonsuited,  so  that  the  other 
plaintiff  witli  him  could  have  the  assize  of  the  moiety. 

Monbray:  I  can  not  make  a  nonsuit  without  my  companion 
and  Henry  can  never  make  a  nonsuit  against  himself,  VN^herefore 
nothing  can  be  done  in  this  suit  to-day. 

Tank  :-"  Sir,  it  is  not  reasonable  that  he  who  is  named  plaintiff 
with  Henry  should  suffer  disadvantage  because  Henry  is  named 
justice  pending  the  writ.  And  sir,  since  Persey  never  appeared  to 
this  suit  in  his  proper  person,  it  is  possible  that  he  is  another  H[enry 
Persey  who  brought  the  writ  than  this  Henry  who  is  made  justice. 
W^ierefore  since  this  is  possible,  it  is  not  inconvenient  that  you  and 
Henry  should  make  the  nonsuit. 

And  upon  this  it  was  adjourned  before  themselves  at  West- 
minster. Upon  which  day  it  was  the  advice  of  all  the  sages  that 
Henry  could  not  hold  this  plea,  but  that  it  behooved  that  a  special 
assize  be  granted  for  Henry  and  the  other  plaintiff  before  other 
justices.^* 


^  The  plaintiff  Persey  was  king's  sergeant  and  occasionally  employed  as 
judge  of  assize.  He  was  made  a  baron  of  the  exchequer  in  1375  and  a  judge 
of  the  common  pleas  in  1377. 

"John  Holt,  made  a  judge  of  the  common  pleas  in  1383. 

^  William  Tank  was  made  chief  baron  of  the  exchequer  in  1374. 

'-*  Accord  :  Chancellor  of  Oxford's  Case,  8  Henry  VI,  18;  City  of  London 
V.  Wood,  12  Mod.  669  (1701),  at  p.  687;  Wright  v.  Crump,  7  Mod.  I  (1702), 
s.  c.  Salkeld,  201,  2  Ld.  Raym.  766.  Holding  stock  in  a  corporation  disqualifies 


NORTHAMPTON  V.    SMITH  19 

INHABITANTS    OF    NORTHAMPTON   v.    SMITH. 

Supreme  Judicial  Court  of  Massachusetts,  1846. 

52  Mass.  390."^ 

Shaw,  C.  J. :  This  was  an  appeal  from  the  decree  of  the  judge 
of  probate  of  the  County  of  Hampshire,  by  which  he  decHned,  on 
account  of  interest,  to  take  jurisdiction  of  the  probate  of  the  will  of 
Oliver  Smith,  late  of  Hatfield,  and  directed  the  proceedings  upon 
the  said  will  to  be  transferred  to  the  court  of  probate  of  the  County 
of  Worcester,  being  the  most  ancient  adjoining  county.  This  objec- 
tion is  founded  on  the  provision  of  the  Rev.  Stat.,  ch.  83,  §  15, 
directing  that  when  a  judge  of  probate  shall  be  interested  in  any 
case  within  his  jurisdiction,  the  case  shall  be  transferred  to  the  pro- 
bate court  of  the  most  ancient  adjoining  county.  The  interest  of 
the  judge  was  supposed  to  arise  from  the  fact,  that  he  was  one  of 
the  inhabitants  of  the  town  of  Amherst;  tliat  there  were,  in  this 
will,  many  bequests  to  charitable  purposes,  for  the  use  and  benefit 
of  classes  of  persons  described  as  dwelling  in  eight  towns  enumer- 
ated, of  which  towns  Amherst  is  one;  that  if  those  bequests  were 
beneficial  to  these  towns,  tliey  had  an  interest,  in  their  corporate 
capacity,  in  establishing  the  bequests,  and  of  course  in  proving  the 
will;  and  that  by  means  thereof,  Mr.  Conkey,  the  judge  of  probate, 
as  an  inhabitant  of  Amherst  and  a  member  of  tlie  corporation,  had 
a  derivative  interest  in  the  same  bequests. 

the  holder  from  sitting  as  chancellor  or  judge  in  a  suit  to  which  the  corpora- 
tion is  a  party.  Dimes  v.  Grand  Junction  Canal,  3  H.  L.  C.  759  (1852)  ;  Adams 
V.  Minor,  121  Cal.  372  (1898).  As  to  whether  mere  relationship  to  a  stock- 
holder ought  to  disqualif3^  Compare:  Searsburg  Turnpike  Co.  v.  Cutler,  6 
Vt.  315  (1834),  wuth  Place  v.  The  Butternut  Woolen  Co.,  28  Barb.  (N.  Y.) 

503  (1857).  ,  .      .        ,        ,      .    ,  .       ,  , 

At  the  common  law  it  was  no  objection  that  the  judge  was  related  to  a 
party  to  the  suit.  Brookes  V.  Earl  of  Rivers,  Hard.  503  (1669).  But  now  by 
statutes  and  decisions  the  general  rule  is  that  near  relationship  of  the  judge 
to  a  party  to  the  suit  will  disqualify  him  from  acting.  Matter  of  Aldrich,  no 
Mass.  189  (1872)  ;  Russell  v.  Belcher,  76  Maine  501  (1884)  ;  Stearnes  v.  Curll, 
Camphell&Co..  4  Pa.  C.  C^6q   (1887). 

At  theTommon  law  no  impropriety  attached  to  sitting  as  judge  in  a  case 
after  having  acted  as  counsel.  Tounsend  v.  Hughes,  2  Mod.  150  (1677); 
Thellusson  v.  Rendlesham,  7  H.  L.  Cas.  428  (1859)  ;  Owings  v.  Gibson,  2  A.  K. 
Marsh  515  (1820)  ;  Den  v.  Tatem,  i  N.  J.  L.  164  (i793)>  but  see  Gen.  Stat. 
N.J.  (1896),  Vol.  II,  p.  2576. 

Now  by  statutes  and  decisions  a  judge  is  generally  held  disqualified  from 
acting  in  a  case  where  he  has  previously  appeared  as  counsel.  Rev.  Stat.  U.  S., 
§  615,  and  see  Illinois  Central  Railroad  v.  Illinois,  146  U.  S.  387  (1892),  at  p. 
476;  Moses  V.  Julian,  45  N.  H.  52  (1863)  ]J<nlb's  Fstat.e.  4  Watts  (Pa.^  154 
(1835).  But  a  judge  is  not  disqualified  because  he  may  have  formerly  repre- 
sented the  parties  in  other  matters.  Keller  v.  Riverton  Water  Co.,  3,4  Pa.  Super. 
£t-  ^QL-/ ^-^07,^  ■  or  because  his  son  is  of  counsel.  People  v.  Patrick,  183  N.  Y. 
52  (1905) • 

^''The  statement  of  the  facts  and  a  part  of  the  opinion  of  the  court  are 
omitted. 


20  TIIK    COURT 

The  great  question,  and  the  one  raised  on  the  appeal,  is,  whether 
tlie  judge  of  probate,  as  an  inhal)itant  of  the  Town  of  Amherst, 
and  a  member  of  that  municipal  cor])oration,  had  such  an  interest  in 
this  will,  within  the  meaning  of  the  statute,  as  to  supersede  his  juris- 
diction of  the  probate  of  the  will,  and  transfer  it  to  another  county. 
It  is  true  tliat  the  plain  dictates  of  natural  justice,  independently 
of  all  articles  of  Magna  Charta,  bills  of  rights,  or  other  provisions  of 
positive  law,  require  that  a  man  shall  not  be  judge  in  his  own  cause. 
And  it  is  only  a  just  application  of  this  principle,  that  he  shall  not 
sit  in  judgment  in  deciding  a  question,  in  which  he  has  a  personal 
interest.  But  this,  like  all  otlier  very  general  propositions,  in  order 
to  make  it  the  basis  of  a  practical  rule,  must  have  a  reasonable  con- 
struction, and  must  be  taken,  not  as  absolute  and  invariable,  but 
with  all  necessary  and  implied  qualifications.  If  the  term  "interest" 
were  used  in  the  loose  sense  it  sometimes  is,  consisting  in  a  strong 
and  sincere  desire  to  promote  all  enterprises  for  the  advancement 
of  learning,  philanthropy,  and  general  charity,  or  a  similar  interest, 
with  all  good  men,  to  repress  and  put  down  pernicious  and  mis- 
chievous schemes,  no  man  could  be  found  fit  to  be  intrusted  with 
the  administration  of  justice;  for  no  man  can  be  exempt  from  such 
interests.  But,  even  where  there  are  pecuniary  interests,  there  must 
be  some  exceptions ;  as  when  the  Commonwealth  is  a  party  in  a 
criminal  prosecution  or  a  penal  action,  where  the  penalty  enures  to 
the  state,  and  all  civil  suits  on  recognizances  and  other  debts,  or  for 
the  recovery  of  property,  every  citizen  has  a  pecuniary  interest. 
And  yet  none  but  citizens  can  be  judges.  Our  own  declaration  of 
rights  has  made  some  approximation  towards  a  limitation  of  the 
generality  of  the  maxim,  by  declaring  (art.  29)  that  "it  is  the  right 
of  every  citizen  to  be  tried  by  judges  as  free,  impartial  and  inde- 
pendent, as  the  lot  of  humanity  will  admit."  It  is  obvious  that  no 
nearer  approximation  to  the  rule  of  absolute  impartiality  can  be 
made,  by  any  system  of  laws. 

We  are  then  to  consider  what  is  the  nature  of  the  interest,  in- 
tended by  Rev.  Stat.,  ch.  83,  sec.  15,  which  shall  take  the  case  out  of 
the  jurisdiction  of  the  judge  of  probate,  and  transfer  it  to  the  court 
of  probate  of  an  adjoining  county. 

I.  We  think  it  is  not  to  be  a  mere  possible,  contingent  interest; 
not  an  interest  in  the  question  or  general  subject,  to  which  the  mat- 
ter requiring  adjudication  relates;  but  one  that  is  visible,  demon- 
strable and  capable  of  precise  proof.  Cottle,  Appellant,  5  Pick.  483. 
Sigoiirney  v.  Sibley,  21  Pick.  loi,  and  22  Pick.  507.  It  is  not  the 
bias  or  prejudice  which  would  be  sufficient  to  set  aside  a  juror. 
Davis  V.  Allen,  11  Pick.  466.  It  is  to  be  considered  that  such  an 
interest,  in  the  judge  of  probate,  is  not  only  to  oust  him  of  his  juris- 
diction, but  is  to  confer  jurisdiction  on  another  court  of  probate, 
which  otherwise  would  not  have  it.  It  must  therefore  depend  upon 
facts  capable  of  being  precisely  averred  and  proved,  and  thus  put 
in  issue  and  tried.  The  importance  of  this  consideration  will  be 
appreciated,  when  it  is  considered,  that  if  jurisdiction  is  taken  by  a 
probate  court,  not  entitled  to  it  by  law,  the  entire  proceedings  are 
void;  the  practical  consequences  of  which  may  be  extensively  in- 


NORTHAMPTON  V.   SMITH  21 

jurious.    Holyoke  v.  Haskins,  5  Pick.  20.     Coffin  v.  Cottle,  9  Pick. 
287. 

2.  It  must  be  a  pecuniary  or  proprietary  interest,  a  relation  by 
which,  as  a  debtor  or  creditor,  an  heir  or  legatee,  or  otherwise,  he 
will  gain  or  lose  something  by  the  result  of  the  proceedings,  in  con- 
tradistinction to  an  interest  of  feeling,  or  sympathy,  or  bias,  which 
would  disqualify  a  juror.'*^    Smith  v.  Bradstreet,  16  Pick.  264. 

3.  It  must  be  certain,  and  not  merely  possible  or  contingent. 
Hawes  v.  Humphrey,  9  Pick.  350.  IVilbraham  v.  County  Commis- 
sioners, II  Pick.  322.  Danvers  v.  County  Commissioners,  2  Met. 
185.  It  must  be  direct  and  personal,  though  such  a  personal  inter- 
est may  result  from  a  relation,  which  the  judge  holds  as  the  member 
of  a  town,  parish  or  other  corporation,  where  it  is  not  otherwise 
provided  by  law,  if  such  corporation  has  a  pecuniary  or  proprietary 
interest  in  the  proceedings. 

It  may  be,  and  probably  is,  very  true,  as  the  human  mind  is  con- 
stituted, that  an  interest  in  a  question  or  subject-matter,  arising 
from  feeling  and  sympathy,  may  be  more  efficacious  in  influencing 
the  judgment,  than  even  a  pecuniary  interest;  but  an  interest  of 
such  a  character  would  be  too  vague  to  serve  as  a  test  by  which  to 
decide  so  important  a  question  as  tliat  of  jurisdiction;  it  would  not 
be  capable  of  precise  averment,  demonstration  and  proof;  not  vis- 
ible, tangible,  or  susceptible  of  being  put  in  issue  and  tried;  and 
therefore  not  certain  enough  to  afford  a  practical  rule  of  action.  It 
is  like  the  principle  applying  to  the  case  of  the  competency  of  a  wit- 
ness; a  direct  pecuniary  interest,  however  small,  on  being  proved, 
renders  him  incompetent ;  but  the  strongest  interest  from  sympathy, 
from  interest  in  the  question,  and  even  an  expected  interest  in  the 
property  in  controversy,  not  yet  vested,  does  not  render  him  incom- 
petent. 

On  examining  this  will  of  Oliver  Smith,  we  can  not  perceive 
that  it  vests  any  pecuniary  interest,  legal  or  beneficial,  in  the  towns 
named,  other  than  Northampton.  The  will  provides  for  the  future 
annual  distribution  of  considerable  sums  of  money,  in  charit}',  for 
the  relief  and  assistance  of  various  classes  of  indigent  persons  to  be 
selected  from  those  residing  within  the  limits  of  these  towns.  But 
the  distribution  of  a  sum  of  money  within  the  limits  of  a  town,  al- 
though it  may  give  a  spring  to  business,  and  indirectly  benefit  the 
inhabitants,  as  members  of  society,  and  holders  of  property,  yet  is 
not  a  direct  pecuniary  interest  to  the  town  in  its  corporate  capacity, 
through  which  its  members  derive  a  pecuniary  interest.  And  al- 
though it  may  be  said,  in  a  loose  sense,  that  such  a  provision  for 
various  classes  of  persons,  and  the  distribution  of  so  much  money, 
would  be  of  great  benefit  to  the  town,  and  although  the  inhabitants 
of  such  town  would  feel  strongly  inclined  to  aid  in  promoting  and 
establishing  such  a  charity,  and  even  be  willing  to  pay  money  in 
securing  it,  yet,  when  strictly  considered,  it  means  only  that  such 


^* Accord:  Bryan  v.  State,  41  Fla.  643,  26  So.  1022  (1899).  Statutes  in- 
many  states  have  made  bias  or  prejudice  a  ground  for  disqualifying  a  judge. 
See  23  Cyc.  582;  17  Am.  &  Eng.  Ency.  of  Law  (2d  ed.)  738. 


22  TllK    COURT 

an  esiabllshmeiit  would  be  useful  and  beneficial  to  the  dwellers  in 
such  town ;  nt)t  that  it  would  confer  any  corporate  right  upon  the 
town.  It  affords  no  direct  or  necessary  exemption  from  taxes.  It 
is  the  same  interest  which  the  inhabitants  of  a  town  often  feel  and 
manifest  in  the  establishment  of  a  college,  academy,  hospital,  and 
c\en  a  courthouse  and  jail,  within  their  limits. 

The  court  are  therefore  of  opinion,  that  the  town  of  Amherst, 
as  a  municipal  corporation,  in  its  corporate  capacity,  takes  no  pecu- 
niary interest,  legal  or  benehcial,  under  this  will,  and  that,  of  course, 
Mr.  Conkey,  judge  of  probate,  as  an  inhabitant  of  that  town,  takes 
no  such  interest;  that  he  is  not  prevented  from  taking  jurisdiction 
of  the  probate  of  this  will ;  and  that  no  other  probate  court  of  the 
commonwealth  can  take  jurisdiction  of  it. 

The  decree  of  the  probate  court  is  reversed,  and  the  case  re- 
mitted to  that  court,  for  further  proceedings,  in  the  probate  of 
said  will,  and  the  settlement  of  the  said  Oliver  Smith's  estate." 


EDWARD  LANGE  v.  CHARLES  L.  BENEDICT. 

Court  of  Appeals  of  Nev^  York,  1878. 

73  N.  Y.  12. 

The  plaintiff  brought  an  action  against  the  defendant  for  false 
imprisonment.  From  the  complaint  it  appeared  that  the  defendant 
was  judge  of  the  District  Court  for  the  United  States  for  the  East- 
ern District  of  New  York ;  that  the  defendant  had  been  found  guilty 
of  stealing  mail  bags,  the  property  of  the  United  States,  and  had 
been  sentenced  by  the  defendant  to  pay  a  fine  of  $200  and  to  be 
imprisoned  for  one  year,  although  by  the  act  of  congress  the  pun- 
ishment was  a  fine  or  imprisonment.  The  plaintiff  paid  the  fine  and 
had  undergone  imprisonment  for  five  days  when  the  judge  vacated 
the  sentence  and  resentenced  the  plaintiff  to  imprisonment  for  one 
year.  This  resentence  the  Supreme  Court  of  the  United  States  held 
unauthorized  and  on  habeas   corpus   the   plaintiff  was   discharged 

■'Great  Chartc  v.  Kennington,  2  Str.  ii59  (i743)  ;  Ut>t>er  Dublin  v.  Ger- 
mantoTJi'n.  2  Pall.  (Pa.)  213  (i793)-  The  fact  that  a  judge  is  a  property  owner 
and  taxpayer  does  make  him  "peV-sonally  mterested"  m  an  action  against  the 
county  so  as  to  entitle  the  plaintiff  to  a  change  of  venue.  ^rittam^v.^Monroe 
County  214  Pa.  648  (1906).  Accord:  Cotnmonzvcalth  v.  Fletcher,  157  Mass. 
irTi^2yron  statutor>-  grounds;  Jeffersonian  Pub.  Co.  v.  Hilliard,  105  Ala. 
S76  (1894)  ;  Lazi'ton  Rapid  Trans.  Co.  v.  La-a'ton,  31  Okla.  458  (1912).  Contra, 
Peck  V  Essex,  21  N.  J.  L.  656  (1847)  ;  Meyer  v.  .San  Diego,  121  Cal.  102,  53 
Pac.  434,  41  L.  R.  A.  762,  66  Am.  St.  22  (1898).  It  has  been  held  that  where 
the  judicial  power  is  confined  to  one  judge,  he  may  act,  although  interested, 
if  the  necessity  is  imperative.  Matter  of  Ryers,  72  N.  Y.  i  (1878)  ;  Hill  v. 
IVells  23  Mass.  104  (1828)  ;  PhUadelphia  v.  Pox,  6/|  Pa.  160  ('1870')  ;  Forest 
Coal  Co  V  Doolittlc,  54  W.  Va.  210,  46  J5.  b.  23«  (1903)  ;  State  v.  Houser,  122 
Wis.  534,  100  N.  W.  964  (1904)  ;  State  v.  Policy,  138  N.  W.  300  (S.  Dak. 
1912). 


LANGE  V.   BENEDICT  23 

from  custody.-*^  To  the  complaint  the  defendant  demurred  on  the 
ground  that  the  complaint  did  not  state  facts  sufficient  to  constitute 
a  cause  of  action.  The  demurrer  was  sustained  by  the  New  York 
Supreme  Court  and  the  plaintiff  appealed  to  this  court.-'' 

FoLGER,  J.:  In  our  judgment,  the  question  between  the  parties 
is  brought  to  what,  in  words  at  least,  is  a  very  narrow  issue :  Did 
the  defendant  impose  the  second  sentence  as  a  judge;  or,  although 
he  was  at  the  moment  of  right  upon  the  bench,  and  authorized  and 
empowered  to  exercise  the  functions  of  a  judge,  was  the  act  of  re- 
sentencing the  plaintiff  so  entirely  without  jurisdiction,  or  so  be- 
yond or  in  excess  of  the  jurisdiction  which  he  then  had  as  a  judge, 
as  that  it  was  an  arbitrary  and  unlawful  act  of  a  private  person?  A 
narrow  issue,  but  not  to  be  easily  determined  to  the  satisfaction  of 
a  cautious  inquirer. 

There  are  not  many  topics  in  the  law  which  have  received  more 
discussion  and  consideration  than  that  of  the  liability  of  a  person 
holding  a  judicial,  or  cjuasi  judicial  office,  to  an  action  at  law,  for  an 
act  done  by  him  while,  at  the  same  time,  exercising  his  office.  The 
principles  which  should  govern  such  action  are,  therefore,  well 
settled.  The  difficulty  in  satisfactorily  disposing  of  a  particular  case 
is,  not  in  finding  the  rule  of  law  upon  which  it  is  to  be  decided,  but 
in  determining  on  which  side  of  that  .rule  the  facts  of  the  case  do  lie. 

The  general  rule,  which  applies  to  all  such  cases,  and  which  is  to 
be  observed  in  this,  has  been  in  olden  times  stated  thus :  Such  as 
are  by  law,  made  judges  of  another,  shall  not  be  criminally  accused, 
or  made  liable  to  an  action  for  what  they  do  as  judges;  to  which  the 
Year  Books  (43  Edw.,  3,  9;  9  Id.,  4,  3)  are  cited  in  Floyd  v.  Baker 
12  Coke  26).  The  converse  statement  of  it  is  also  ancient;  where 
there  is  no  jurisdiction  at  all,  there  is  no  judge;  the  proceeding  is  as 
nothing  (Perkin  v.  Proctor,  2  Wilson,  382-384),  citing  the  Marshal- 
sea  Case  (10  Coke  65-76),  which  says:  "Where  he  has  no  jurisdic- 
tion, non  est  judex."  It  has  been  stated  thus,  also:  No  action  will 
lie  against  a  judge,  acting  in  a  judicial  capacity,  for  any  errors 
which  he  may  commit,  in  a  matter  within  his  jurisdiction.  {Gwynne 
V.  Pool,  Lutv/.,  290.)  It  has  been,  in  modern  days,  carried  some- 
what further,  in  the  terms  of  the  statement:  Judges  of  superior  or 
general  jurisdiction  are  not  liable  to  civil  actions  for  their  judicial 
acts,  even  when  such  acts  are  in  excess  of  their  jurisdiction,  and 
are  alleged  to  have  been  done  maliciously  and  corruptly.  {Bradley 
v.  Fisher,  13  Wall.  351.) 

It  is  to  be  seen  that  in  these  different  modes  of  stating  the  prin- 
ciple, there  abides  a  qualification.  To  be  free  from  liability  for 
the  act,  it  must  have  been  done  as  judge,  in  his  judicial  capacity;  it 
must  have  been  a  judicial  act.  So  it  always  remains  to  be  deter- 
mined, when  is  an  act  done  as  judge,  in  a  judicial  capacity.    And 


^*Ex  parte  Lange,  85  U.  S.  163  (1873).  The  Supreme  Court  held  that  the 
judgment  of  the  court  having  been  executed  so  as  to  be  a  full  satisfaction 
of  one  of  the  alternative  penalties  the  power  of  the  court  was  ended.  Clifford 
and  Strong,  J.  J.,  dissented. 

""The  statement  of  facts  is  condensed  from  the  opinion  of  the  court,  por- 
tions of  which  are  omitted.   Reported  below  in  8  Hun  (N.  Y.)  362. 


24  TlIK    COURT 

this  is  the  ditriculty  whicli  has  most  often  been  found  in  the  use  of 
tliis  rule,  and  wliich  is  present  here;  to  determine  when  the  facts 
exist  which  call  into  play  that  qualification. 

For  it  is  plain  that  the  fact  that  a  man  sits  in  the  seat  of  justice, 
though  having  a  clear  right  to  sit  there,  will  not  protect  him  in 
every  act  which  he  may  choose  or  chance  to  do  there.  Should  such 
an  one,  rightfully  holding  a  court  for  the  trial  of  civil  actions,  order 
the  head  of  a  l)ystander  to  be  stricken  off,  and  be  obeyed,  he  would 
be  liable.  Thus,  a  person  in  the  office  of  judge  of  the  Ecclesiastical 
Court  in  England,  excommunicated  one  for  refusing  to  obey  an  order 
made  by  him,  that  he  become  guardian  ad  litem  for  an  infant  son, 
and  though  the  order  was  made  in  a  matter  then  lawfully  before  the 
court  for  adjudication,  and  of  which  he  as  judge  had  jurisdiction, 
he  was  held  liable  to  an  action.  (Beaurain  v.  Sir  IVni.  Scott,  3 
Campb.  388.)  He  had  not,  as  judge,  jurisdiction  of  the  person  to 
whom  he  addressed  the  order.  On  tlie  other  hand,  one  rightfully 
holding  a  court  for  the  trial  of  a  criminal  action  fined  and  im- 
prisoned a  juror,  for  that  he  did  not  bring  in  a  verdict  of  guilty 
against  one  on  trial  for  an  offense,  after  the  court  had  directed  tlie 
jury  that  such  a  verdict  was  according  to  the  law  and  facts.  The 
juror  was  discharged  from  imprisonment  on  habeas  corpus  brought 
in  his  behalf,  and  it  was  held  that  the  act  of  fining  and  imprisoning 
him  was  unlawful,  inasmuch  as  there  was  no  allegation  of  corrup- 
tion or  like  bad  conduct  against  the  juror.  The  juror  then  brought 
an  action  against  him  who  sat  as  judge  and  made  the  order  for  tlie 
fine  and  imprisonment,  but  took  nothing  thereby,  for  it  was  held 
that  the  judge  acted  judicially,  as  judge,  as  he  had  jurisdiction  of 
the  person  of  the  juror,  and  jurisdiction  of  the  subject-matter,  to 
wit:  The  matter  of  punishing  jurors  for  misbehavior  as  such,  and 
that  his  judgment  that  the  facts  of  that  case  warranted  him  in  in- 
flicting punishment  was  a  judicial  error  to  be  avoided  and  set  aside 
in  due  course  of  legal  proceedings,  for  which,  however,  he  was  not 
personally  liable.  (Hammond  v.  Howell,  Recorder  of  London,  2 
Mod.  218;  Bushell's  Case,  Vaughan  Reps.,  135.)  So  a  judge  of 
Oyer  and  Termifier'was  protected  from  indictment  when  he  had 
made  entry  of  record  that  some  were  indicted  for  felony  before  him  ; 
whereas,  in  fact,  they  w^ere  indicted  for  trespass  only.  (12  Coke  25.) 

Thus  it  appears  that  the  test  is  not  alone  that  the  act  is  done 
while  having  on  the  judicial  character  and  capacity,  nor  yet  is  it 
alone  that  the  act  is  not  lawful. 

We  have  seen,  too,  that  the  test  is  not  that  the  act  was  in  excess 
of  jurisdiction,  or  alleged  to  have  been  done  with  malice  and  cor- 
ruptly ;  for  even  if  it  is  such  an  act,  it  does  not  render  liable  the 
doer  of  the  act,  if  he  be  a  judge  of  a  court  of  general  or  superior 
authority.    (Bradley  v.  Fisher,  supra.y^ 


*" Accord:  Taylor  v.  Doremus,  16  N.  J.  L.  473  (1838)  ;  Pratt  v.  Gardner, 
56  Mass.  63  (1848)  ;  Fray  v.  Blackburn,  3  B.  &  S.  576  (1863)  ;  Woodruff  v. 
Stewart,  63  Ala.  206  (1879)  ;  Anderson  v.  Gorrie,  L.  R.  (1895)  i  Q.  B.  668 
(1894)  ;  Scott  V.  Fisliblate,  117  N.  Car.  265  (1895)  ;  Webb  v.  Fisher,  109  Tenn. 
701,  72  S.  W.  no,  60  L.  R.  A.  791,  97  Am.  St.  863  (1902)  ;  Wyatt  v.  Arnot,  7 
Cal.  App.  221  (1907)  ;  Kruegel  v.  Cobb,  124  S.  W.  723  (Tex.  1910)  ;  Casser- 


LANGE  V.   BENEDICT  2$ 

We  think  it  clear  that  there  is  no  liabihty  to  civil  action,  if  the  act 
was  done  "in  a  matter  within  his  jurisdiction,"  to  use  the  words  of 
Gwynne  v.  Pool  (supra).  Those  words  mean,  that  when  the  person 
assumed  to  do  the  act  as  judge,  he  had  judicial  jurisdiction  of  the 
person  acted  upon,  and  of  the  subject-matter  as  to  which  it  was 
done.  Jurisdiction  of  the  person  is  when  the  citizen  acted  upon  is 
before  the  judge,  either  constructively  or  in  fact,  by  reason  of  the 
service  upon  him  of  some  process  known  to  the  law,  and  which  has 
been  duly  issued  and  executed.  What  is  meant  by  jurisdiction  of  the 
subject-matter  we  have  had  occasion  to  consider  lately  in  Hunt  v. 
Hu7it  (72  N.  Y.  217).  It  is  not  confined  within  the  particular  facts, 
which  must  be  shown  before  a  court  or  a  judge,  to  make  out  a  spe- 
cific and  immediate  cause  of  action ;  it  is  as  extensive  as  the  general 
or  abstract  question,  which  falls  within  the  power  of  the  tribunal  or 
officer  to  act  concerning.  Our  idea  will  be  illustrated  by  a  refer- 
ence to  Groenvelt  v.  Biirwell  (i  Ld.  Raym.  454).  There  the  de- 
fendants, as  censors  of  a  college  of  physicians,  had  imposed  pun- 
ishment on  the  plaintiff  for  what  they  adjudged  was  malpractice  by 
him.  He  brought  his  action.  They  pleaded  the  charter  of  the  col- 
lege, giving  them  power  to  make  by-laws  for  the  government  of  all 
practitioners  in  medicine  in  London,  and  to  overlook  them  and  to 
examine  their  medicines  and  prescriptions,  and  to  punish  malprac- 
tice by  fine  and  imprisonment ;  that  they  had,  in  the  exercise  of  that 
power,  adjudged  tlie  plaintiff  guilty  of  mala  praxis,  and  fined  him 
twenty  pounds,  and  ordered  him  imprisoned  twelve  months,  nisi,  etc. 
It  was  held  that  the  defendants  had  "jurisdiction  over  the  person  of 
the  plaintifi^,  inasmuch  as  he  practiced  medicine  in  London;  and 
over  the  subject-matter,  to  wit,  the  unskillful  administration  of 
physic.  That  is  the  language  of  Holt,  C.  J.,  in  that  case.  And  be- 
cause the  defendants  had  power  to  hear  and  punish,  and  to  fine  and 
imprison,  it  was  held  that  they  were  judges  of  record,  and  because 
judges,  not  liable  for  the  act  of  fining  and  imprisoning.  (See  also 
Ackerly  v.  Parkinson,  3  Maul.  &  Selw.  411.)  It  is  the  general  ab- 
stract thing  which  is  the  subject-matter.  The  pov/er  to  inquire  and 
adjudge  whether  the  facts  of  each  particular  case  make  that  case  a 
part  or  an  instance  of  that  general  thing — that  power  is  jurisdiction 
of  the  subject-matter.  Thus  in  Hammond  v.  Howell  {supra),  the 
defendant  was  saved  from  liability  to  civil  action,  inasmuch  as  he 
he  had  as  judge  jurisdiction  of  the  subject-matter  of  punishing 
jurors  for  a  misdemeanor  upon  the  panel.  He  made  an  error  in 
deciding  that  the  facts  of  that  case  made  an  instance  of  that  subject- 
matter.  But  the  jurors  were  within  his  jurisdiction  of  their  persons, 
and  he  had  jurisdiction  of  the  subject-matter,  and  his  error  was  a 
judicial  error;  an  act  done  quatenus  judge;  not  an  act  as  Howell, 
the  private  person,  though  it  was  an  act  contrary  to  law,  grievous 
and  oppressive  upon  the  citizen. 


high  V.  Malone,  50  Colo.  597  (1911)  ;  Broom  v.  Douglass,  57  So.  860  (Ala.) 
(1912).  Contra-/  Hollon  v.  Lilly,  100  Ky.  553,  18  Ky.  L.  968,  38  S.  W.  878 
(1897);  Willis  V.  Linn,  148  Ky.  841  (1912);  Gault  v.  Wallis,  53  Ga.  675 
(187s)  semhle. 


26  TIIK    COURT 

Tlio  iiKiuirv.  then,  at  this  stage  of  our  consideration  of  the  case  is 
this:  Wliethor  the  defendant,  sitting  upon  the  bench  of  the  circuit 
court  and  being  on  that  occasion  de  jure  et  de  facto  the  circuit  court, 
and  having  as  such  jurisdiction  of  all  persons  by  law  within  the 
power  of  that  court,  and  jurisdiction  of  all  subject-matters  within  its 
cognizance ;  whether  he  had  jurisdiction  of  the  person  of  the  plaintiff, 
and  of  any  subject-matter  wherefrom  he  had  authority  to  hear  and 
adjudge  whether  the  facts  in  the  case  of  the  plaintiff',  as  then  pre- 
sented to  him  fell  within  any  of  those  subject-matters.  It  is  not  the 
inquiry  whether  the  act  then  done  as  the  act  of  the  court  was  erron- 
eous and  illegal;  that  is  but  another  form  of  saying  whether  it 
could  or  could  not  be  lawfully  done  as  a  court  by  the  person  then 
sitting  as  the  judge  thereof.  It  is  whether  that  court  then  had  the 
judicial  ])ower  to  consider  and  pass  upon  the  facts  presented,  and  to 
determine  and  adjudge  that  such  an  act  based  upon  them  would  be 
lawful  or  unlawfvd. 

That  the  defendant,  as  that  court,  had  jurisdiction  of  the  person 
of  the  plaintiff  is  manifest.  He  was  before  it  on  a  return  of  a  writ 
of  habeas  corpus,  sued  out  by  him,  and  was  produced  in  court  by  the 
marshal  to  whom  the  writ  was  sent.  He  was  in  the  custody  of  law 
upon  a  judgment  and  sentence  of  that  court,  the  validity  of  which  he 
was  questioning,  and  seeking  from  that  court  a  vacating  and  annull- 
ing thereof.  At  least  until  the  order  for  vacating  it  was  made  the 
plaintiff  was  lawfully  within  the  power  of  the  court. 

The  court  also  had  jurisdiction  of  the  subject-matter.  It  might 
by  law  indict  and  try  persons  charged  v/ith  stealing  and  appropriat- 
ing mail  bags;  it  might  pass  sentence  upon  them,  when  duly  con- 
victed, of  fine  or  imprisonment;  during  the  same  term  of  the  court 
at  which  one  sentence  had  been  imposed,  it  might  vacate  it  or  mod- 
ify it,  as  law  and  justice  would  require.  {Ex  parte  Lange,  i8  Wall. 
163).  If  it  had  imposed  a  sentence  greater  than  that  prescribed  by 
law,  it  could  vacate  it  and  inflict  one  in  accord  with  the  law.  If  no 
part  of  the  invalid  sentence  imposed  had  been  executed,  it  could  va- 
cate and  inflict  one  different  in  kind  or  degree.  {Ex  parte  Lange  18 
Wall.  163;  Miller  v.  Finkle,  i  Park.  Cr.  R.,  374,  and  cases  cited 
there.)  In  England  it  has  been  held  that  at  the  same  term  the  judg- 
ment might  be  altered,  and  by  reason  of  subsequent  conduct  of  the 
convicted  person  the  punishment  be  increased.  {Reg.  v.  Fitzgerald,  i 
Salk.  401.)  And  another  sentence  has  been  given  after  a  portion  of 
the  former  one  had  been  suffered.  (Rex  v.  Price,  6  East,  323.) 
The  judgment,  as  expressed  in  the  prevailing  opinion  in  Ex  parte 
Lange  {supra),  is  not  in  accord  with  those  two  cases,  and  we  cite 
them  without  expression  of  approval  or  otherwise. 

This  was  the  subject-matter — the  general  matter  then  before  the 
court.  The  particular  matter  or  question  presented  was  the  sen- 
tence of  fine  and  imprisonment  passed  upon  the  plaintiff;  was  it 
erroneous  and  unlau-ful  in  that  it  went  beyond  the  limit  of  the  law, 
he  having  been  some  days  in  imprisonment  under  it,  and  having  paid 
a  sum  of  money  equal  in  amount  to  the  fine,  to  the  clerk  of  the  court, 
who  in  turn  had  paid  it  to  an  officer  of  the  United  States  govern- 
ment; was  it  lawful  to  vacate  the  sentence  if  in  excess  of  the  law; 


LANGE  V.  BENEDICT  27 

if  that  sentence  should  be  vacated,  was  it  lawful,  under  the  facts 
of  the  case,  to  impose  another  sentence  which  should  be  in  accord 
with  the  statute — did  all  these  things  present  a  case  for  the  exercise 
of  power,  by  virtue  of  the  jurisdiction  over  the  subject-matter?  The 
court,  we  have  seen,  had  the  jurisdiction  last  named;  did  it  not  also 
have  jurisdiction  to  adjudicate  upon  that  state  of  facts?  If  it  did 
have  it,  and  did  adjudicate  erroneously,  was  it  not  a  judicial  error 
to  be  relieved  from,  by  such  writ  as  would  bring  it  up  for  review, 
rather  than  a  wrong  done  personally  to  be  answered  for  in  a  civil 
action?  Is  not  the  person  who  iilled  the  office  of  judge  and  by  his 
presence  on  tlie  bench  made  that  court  free  from  liability  for  that 
adjudication,  though  the  act  done  by  him  was  erroneous  and  un- 
authorized by  law  ? 

It  is  true  that  the  United  States  Supreme  Court  upon  a  certain 
state  of  facts  before  it,  and  in  a  proceeding  by  certiorari  to  which 
this  defendant  was  not  a  party,  and  in  which  he  was  not  heard  by 
that  court,  reached  the  conclusion  that  the  second  sentence  of  the 
circuit  court  was  pronounced  without  authority,  and  discharged  the 
plaintiff  from  his  imprisonment  thereunder.  {Ex  parte  Lange,  supra.) 
In  the  prevailing  opinion  given  in  the  case  are  repeated  expressions 
to  the  effect  that  the  power  of  the  circuit  court  to  punish,  further 
than  the  first  sentence,  was  gone;  that  its  power  to  punish  for  that 
offense  was  at  an  end  when  the  first  sentence  was  inflicted,  and  the 
plaintiff  had  paid  the  $200  and  laid  in  prison  five  days ;  that  its 
power  was  exhausted ;  that  its  further  exercise  was  prohibited ;  that 
the  power  to  render  any  further  judgment  did  not  exist;  that  its 
authority  was  ended. 

The  opinion  also  says:  "A  judgment  may  be  erroneous  and  not 
void;  and  it  may  be  erroneous  because  it  is  void.  The  distinctions 
between  void  and  voidable  judgments  are  very  nice,  and  they  may 
fall  under  the  one  class  or  the  other,  as  they  are  regarded  for  differ- 
ent purposes."  We  do  not  think  that  learned  court  would  disregard 
the  reasoning  of  Howell's  Case  (supra)  and  others  like  unto  it. 
Yet  in  Buslinell's  Case  (supra),  he  was  discharged  on  habeas  cor- 
pus, on  the  ground  that  Howell  as  judge  had  no  power  or  author- 
ity to  fine  or  imprison  him  for  the  cause  set  up ;  it  was  called  "a 
wrongful  commitment"  (i  Mod.  184),  as  contrasted  with  "an  er- 
roneous judgment"  (12  Mod.  381,  392)  ;  and  yet  when  Howell  was 
called  to  answer  in  a  civil  action  for  the  act,  it  was  held  that  though 
without  authority  it  was  judicial.  In  Bushnell's  Case  (i  Mod,  119), 
Hale,  C.  J.,  said :  "The  habeas  corpus  and  the  writ  of  error,  though 
it  doth  make  the  judgment  void,  doth  not  make  the  awarding  of  the 
process  void  to  that  purpose,"  i.  e.,  of  an  action  against  the  judge, 
"and  the  matter  was  done  in  a  court  of  justice,"  he  continued.  So 
is  the  comment  upon  that  case.  (Yates  v.  Lansing,  5  Johns  290.) 
"It  had  jurisdiction  of  the  cause  because  it  had  power  to  punish  a 
misdemeanor  in  a  juror,  though  in  the  case  before  tlie  court  the 
recorder  made  an  erroneous  judgment  in  considering  the  act  of  the 
juror  as  amounting  to  a  misdemeanor,  when  in  fact  it  was  no  mis- 
demeanor." (2  Mod.  218.)  So  in  Ackerley  v.  Parkinson  (supra) 
the  defendant  was  held  protected  though  the  citation  issued  by  him 


2S  THE    COURT 

was  considered  as  a  nullity;  on  the  ground  that  the  court  had  a  gen- 
eral jurisdiction  over  the  subject-matter. 

Let  it  be  conceded,  at  this  point  that  the  law  is  now  declared, 
that  the  act  of  the  defcntlant  w^as  without  authority  and  was  void, 
yet  it  was  not  so  plain  as  then  to  have  been  beyond  the  realm  of 
judicial  discussion,  deliberation  and  consideration,  as  is  apparent 
from  the  fact  that  four  judges,  other  than  the  defendant,  acting  as 
judges,  have  agreed  with  him  in  his  view  of  the  law. 

He  was,  in  fact,  sitting  in  the  place  of  justice;  he  was  at  the 
very  time  of  the  act  a  court;  he  was  bound  by  his  duty  to  the  public 
and  to  the  plaintiff  to  pass  as  such,  upon  the  question  growing  out 
of  the  facts  presented  to  him,  and  as  a  court  to  adjudge  whether 
a  case  had  arisen  in  which  it  was  the  demand  of  the  law,  that  on  the 
vacating  of  the  unlawful  and  erroneous  sentence  or  judgment  of  the 
court,  anotlier  sentence  or  judgment  could  be  pronounced  upon  the 
plaintiff.  So  to  adjudge  was  a  judicial  act,  done  as  a  judge,  as  a 
court;  though  the  adjudication  was  erroneous,  and  the  act  based 
upon  it  was  without  authority  and  void.  Where  jurisdiction  over  the 
subject  is  invested  by  law  in  the  judge,  or  in  the  court  which  he 
holds,  the  manner  and  extent  in  which  the  jurisdiction  shall  be 
exercised  are  generally  as  much  questions  for  his  determination  as 
any  other  involved  in  the  case ;  although  upon  the  correctness  of  his 
determination  in  those  particulars,  the  validity  of  his  judgment  may 
depend.  {Ackerly  v.  Parkinson,  supra.)  For  such  an  act,  a  person 
acting  as  judge  therein  is  not  liable  to  civil  or  criminal  action.  The 
power  to  decide  protects,  though  the  decision  be  erroneous  (see 
Garnett  v.  Farrand,  6  B.  &  C.  6ii). 

There  is  anotlier  view  of  this  case.  It  is  certain  that  the  defend- 
ant as  the  circuit  court,  had  at  first  jurisdiction  of  the  plaintiff,  and 
jurisdiction  of  the  cause  and  the  proceedings.  That  jurisdiction 
continued  to  and  including  the  pronouncing  of  tlie  first  sentence ; 
nay,  until  and  including  the  giving  of  the  order  vacating  that  sen- 
tence. If  it  be  admitted  that  at  the  instant  of  the  utterance  of  that 
order  jurisdiction  ceased,  as  is  claimed  by  the  plaintiff,  on  the 
strength  of  the  opinion  in  Ex  parte  Lange  {supra),  as  commented 
upon  Ex  parte  Parks  (93  U.  S.  R.  18),  and  that  all  subsequent  to 
that  was  corum  non  judice,  and  void;  still  it  was  so,  not  that  the 
court  never  had  jurisdiction,  but  that  the  last  act  was  in  excess  of 
its  jurisdiction.  Thus  in  the  opinion  {Ex  parte  Lange,  supra,  p. 
165)  it  was  said  that  the  facts  very  fairly  raised  the  question 
whether  the  circuit  court  in  the  sentence  which  it  pronounced,  and 
under  which  the  prisoner  was  held,  had  not  exceeded  its  powers. 
(See,  also,  p.  174.)  We  think,  that  the  w^hole  effect  of  the  opinion 
is,  not  that  the  court  had  no  jurisdiction,  no  power  over  the  pris- 
oner and  the  case,  but  that  it  had  no  authority  to  impose  further 
punishment. 

This  act  of  the  defendant  was  then  one  in  excess  of,  or  beyond 
the  jurisdiction  of  the  court.  And  though  when  courts  of  special 
and  limited  jurisdiction  exceed  their  powers,  the  whole  proceeding 
is  coram  non  judice,  and  void,  and  all  concerned  are  liable,  tliis  has 
never  been  carried  so  far  as  to  justify  an  action  against  a  judge  of  a 


LANGE  V.  BENEDICT  29 

superior  court,  or  one  of  general  jurisdiction,  for  an  act  done  by 
him  in  a  judicial  capacity.  {Yates  v.  Lansing,  supra;  Bradley  v. 
Fisher,  supra;  Randall  v.  Brigham,  7  Wall.  523.)^^ 

In  the  case  last  cited  it  is  said  of  judges  of  superior  courts: 
They  are  not  liable  to  civil  actions  for  their  judicial  acts,  even  when 
such  acts  are  in  excess  of  their  jurisdiction,  unless  perhaps  they  are 
done  maliciously  or  corruptly.  (Pp.  536,  537.)  And  in  the  other 
cases  a  distinction  is  observed  and  insisted  upon  between  excess  of 
jurisdiction  and  a  clear  absence  of  all  jurisdiction  over  the  subject- 
matter.  And  to  the  same  effect  is  this :  "For  English  judges,  when 
they  act  wholly  without  jurisdiction  *  *  *  have  no  privilege." 
(Per  Parke,  B ;  Calder  v.  Halket,  3  Moore  P.  C.  C.  28,  75.) 

Now  it  may  be  conceded  that  the  circuit  court  is  not  a  court  of 
general  jurisdiction;  that  in  a  sense  it  is  a  court  of  limited  and  spe- 
cial jurisdiction  (Kempe's  Lessee  v.  Kennedy,  5  Cranch  173)  ;  in- 
asmuch as  it  must  look  to  the  acts  of  congress  for  the  powers  con- 
ferred. But  it  is  not  an  inferior  court.  It  is  not  subordinate  to  all 
other  courts  in  the  same  line  of  judicial  function.  It  is  of  inter- 
mediate jurisdiction  between  the  inferior  and  the  Supreme  Courts. 
It  is  a  court  of  record ;  one  having  attributes  and  exercising  func- 
tions, independently  of  the  person  of  the  magistrate  designated  gen- 
erally to  hold  it;  per  Shaw,  C.  J.  (Ex  parte  Gladhill,  8  Mete.  168, 
170)  ;  it  proceeds  according  to  the  course  of  the  common  law ;  it 
has  power  to  render  final  judgments  and  decrees  which  bind  the 
persons  and  things  before  it,  conclusively,  in  criminal  as  well  as  civil 
cases,  unless  revised  on  error  or  appeal  (Grignon's  Lessee  v.  Astor, 
2  How.  (U.S.)  341;  see  Ex  parte  Tobias  Watkins,  3  Pet.  193). 
"Many  cases  are  found  wherein  it  is  stated  generally  that  when  an 


"In  Piper  v.  Pearson,  68  Mass.  120  (1854),  it  is  said,  per  Bigelow,  J.: 
"The  common  law  affords  to  all  inferior  tribunals  and  magistrates  complete 
protection  in  the  discharge  of  their  official  functions  so  long  as  they  act  within 
the  scope  of  their  jurisdiction,  however  false  and  erroneous  may  be  the  con- 
clusions and  judgments  at  which  they  arrive.  But  on  the  other  hand,  if  they 
act  without  any  jurisdiction  over  the  subject-matter;  or  if,  having  cognizance 
of  a  cause,  they  are  guilty  of  an  excess  of  jurisdiction;  they  are  liable  in 
damages  to  the  party  injured  by  such  unauthorized  acts.  In  all  cases  there- 
fore where  the  cause  of  action  against  a  judicial  officer,  exercising  only  a 
special  and  limited  authority,  is  founded  on  his  acts  done  colore  officii.^  the 
single  inquiry  is  whether  he  has  been  guilty  of  an  excess  of  jurisdiction." 
Accord:  Clarke  v.  May,  68  Mass.  410,  61  Am.  Dec.  470  (1854);  Miller  v. 
Searle,  2  W.  Bl.  1141  (1776)  ;  Tracy  v.  Williams,  4  Conn.  107,  10  Am.  Dec.  102 
(1821)  ;  Blood  V.  Sayre,  17  Vt.  609  (1843)  ;  Watcrville  v.  Barton,  64  Maine 
321  (1874);  Hanna  v.  Slevin,  8  Pa.  Super,  _Ct._50Q-  (1898)  semble;  Stephens 
v.  Wilson,  iisTCy.  27  (1903)  ;  Duffin  v.  Summerville,  9  Ala.  App.  573  (1913)- 
But  in  Thompson  v.  Jackson,  93  Iowa  376,  61  N.  W.  1004,  27  L.  R.  A.  92 
(1895),  the  rule  that  protects  superior  judges  exceeding  their  authority  and 
refuses  the  same  protection  to  inferior  judges  is  described  as  "unreasonable, 
unjust  and  illogical,"  and  in  other  jurisdictions  the  tendency  is  to  hold  that  a 
judge  of  an  inferior  court  acting  in  good  faith  without  malice  in  excess  of 
his  jurisdiction  ought  not  to  be  civilly  liable.  Brooks  v.  Mangan,  86  Mich. 
576,  49  N.  W.  633,  24  Am.  St.  J37  (1891)  ;  Bell  v.  McKinney,  63  Miss.  187 
(1885)  ;  Austin  v.  Vrooman,  128  N.  Y.  229,  28  N.  E.  477,  14  L.  R.  A.  138 
(1891)  ;  Robertson  v.  Parker,  99  Wis.  6^2,  7=^  N.  W.  423  (i8q8)  ;  Calhoun  v. 
Little,  106  Ga.  336,  32  S.  E.  86,  43  L.  R.  A.  630,  71  Am.  St.  254  (1898)  ;  Bow- 
man V.  Seaynan,  152  App.  Div.  (N.  Y.)  690  (1912). 


,^0  THE    COURT 

interior  court  exceeds  its  jurisdiction  its  proceedings  are  entirely 
void  and  atTord  no  protection  to  the  court,  the  i)arty,  or  the  officer 
who  executes  its  process.  I  apprehend  that  it  should  be  quahfied 
when  the  subject-matter  of  the  suit  is  within  the  jurisdiction  of  the 
court,  and  the  alleged  defect  of  jurisdiction  arises  from  some  other 
cause."  (jMarcy,  J.;  Savacool  v.  Boughton,  5  Wend.  172.)  How 
much  more  so  when  the  court  is  not  inferior? 

For  these  reasons  we  are  of  the  opinion  that  the  defendant  is 
protected  by  his  judicial  character  from  the  action  brought  by  the 
plaintiff.  We  have  not  gone  into  a  written  consideration  of  the 
matters  urged  by  the  learned  and  zealous  counsel  for  the  plaintiff  in 
his  very  elaborate  and  exhaustive  brief  and  printed  argviment.  We 
have  read  them  with  great  interest  and  benefit.  To  follow  them  in 
an  opinion,  and  to  comment  upon  all  the  cases  cited  and  positions 
taken,  would  be  to  write  a  treatise  upon  this  subject.  That  would  be 
no  good  reason  why  they  should  not  be  followed  and  discussed,  if 
the  requirements  of  the  case  demanded  it.  The  case  turns  upon  a 
question  more  easily  stated  than  it  is  determined:  Was  the  act  of 
the  defendant  done  as  a  judge?  Our  best  reflections  upon  it,  aided 
by  the  reasonings  and  conclusions  of  many  more  cases  than  w-e  have 
cited,  has  brought  us  to  the  conclusion  that  as  he  had  jurisdiction  of 
the  person  and  of  the  subject-matter,  and  as  his  act  was  not  with- 
out the  inception  of  jurisdiction,  but  was  "^ne~  no  more  than  in 
excess  of  or  beyond  jurisdiction,  tlie  act  Avas  judicial.  We  are  not 
unmindful  of  the  considerations  of  the  protection  of  the  liberty  of 
the  person,  and  of  the  staying  of  a  tendenc}^  to  arbitrary  exercise  of 
power,  urged  with  so  much  eloquence  by  the  learned  and  accom- 
plished counsel  for  the  appellant.  Nor  are  v.e  of  the  mind  of  the 
court  in  2  Mod.  (218,  220),  that  "these  are  mighty  words  in  sound, 
but  nothing  to  the  matter."  They  are  to  the  matter,  and  not  out  of 
place  in  such  a  discussion  as  this.  Nor  have  we  been  disposed  to 
outweigh  those  considerations,  wath  that  other  class,  which  sets 
forth  the  need  of  judicial  independence,  and  of  its  freedom  from 
vexation  on  account  of  official  action,  and  of  the  interest  that  the 
public  have  therein.  (See  Bradley  v.  Fisher,  supra;  Tajfee  v. 
Doivns,  in  note  to  Colder  v.  Halket,  3  Moore  P.  C.  C.  28,  41,  51,  52.) 
These  are  not  antagonistic  principles ;  they  are  simply  countervail- 
ing. As  with  all  other  rules  which  act  in  the  affairs  of  men,  prepon- 
derance may  not  be  fondl}^  given  to  one  to  the  disregard  of  the 
other ;  each  should  have  its  due  weight  yielded  to  it,  for  thus  only  is 
a  safe  equipoise  reached. 

We  have  arrived  at  our  decision  upon  w^hat  we  hold  to  be  long 
and  well-established  principles  applied  to  the  peculiar  facts  of  this 
interesting  case. 

The  judgment  of  the  general  term  should  be  affirmed. 

All  concur,  except  Andrews,  J.,  absent. 

Judgment  affirmed. "*- 


'Accord:    Boss  v.  Ritienhonse,  2  Pall.  (Pa.)   160  (1792),  s.  c.  i  Yeates 
_  Plielph  V.  Sill,  I  JJay   (ConnJ   315    (  i<So4)  ;   Yates  v.  Lansing,  9  Johns. 
'•  Y.)  395  (1811)  ;  Dnswell  v.  Impey,  i  B.  &  C.  163  (1823)  ;  Garnett  v.  Fcr- 
rand,  6  B.  &  C.  611    (1827)  ;  Tompkins  v.  Sands,  8  Wend.   (N.  Y.)  462,  24 


LORD  V.  VEAZIE  31 

NATHANIEL  LORD  v.  JOHN  W.  VEAZIE. 

Supreme  Court  of  the  United  States,  1850. 

8//0K'.  ({/.  S.)  251. 

This  case  was  brought  up  by  writ  of  error  from  the  Circuit  Court 
of  the  United  States  for  the  District  of  Maine. 

It  appeared  that  in  1842  the  Bangor  and  Piscataquis  Canal  and 
Railroad  Company  executed  a  deed  to  the  City  Bank  at  Boston  by 
which  the  bank  claimed  the  entire  property  of  the  company.  By 
an  act  passed  in  1847  the  company  was  reorganized  and  the  bank 
claimed  to  be  sole  proprietors  under  the  new  charter.  John  W. 
Veazie,  a  shareholder  in  the  original  company,  claimed  that  control 
was  granted  to  the  stockholders.  In  August,  1848,  Veazie  and  Lord 
executed  an  instrument  purporting  to  be  a  conveyance  from  Veazie 
to  Lord  of  250  shares  of  the  company  which  Veazie  covenanted  to 
warrant  and  defend,  and  in  September,  1848,  Lord  brought  this  ac- 
tion of  covenant  and  a  statement  of  facts  agreed  upon  under  which 
the  opinion  of  the  court  was  to  be  taken.  In  October,  1848,  judg- 
ment pro  forma  was  given  for  defendant  at  the  request  of  the  par- 
ties in  order  that  the  question  might  be  brought  before  this  court. 
Mr.  Moor  on  his  own  account  as  counsel  for  the  City  Bank  moved 
to  dismiss  the  appeal  on  the  ground  that  it  was  a  fictitious  case  con- 
trived to  settle  legal  questions  upon  which  he,  Moor,  and  the  City 
Bank  had  a  large  amount  of  property  depending.  A  number  of  affi- 
davits were  filed  in  support  of  and  against  the  motion."" 

Taney,  C.  J. :  The  court  is  satisfied,  upon  examining  the  record 
in  this  case,  and  the  affidavits  filed  in  tlie  motion  to  dismiss,  that  the 
contract  set  out  in  the  pleadings  was  made  for  the  purpose  of  insti- 
tuting this  suit,  and  that  there  is  no  real  dispute  between  the  plain- 
tiff and  defendant.  On  the  contrary,  it  is  evident  that  their  interest 
in  the  question  brought  here  for  decision  is  one  and  the  same,  and 
not  adverse ;  and  that  in  these  proceedings  the  plaintiff  and  defend- 
ant are  attempting  to  procure  the  opinion  of  this  court  upon  a  ques- 
tion of  law,  in  the  decision  of  which  they  have  a  common  interest 
opposed  to  that  of  other  persons,  who  are  not  parties  to  this  suit, 
who  had  no  knov/ledge  of  it  while  it  was  pending  in  the  circuit 


Am.  Dec.  46  (1832)  ;  Dicas  v.  Brougham,  i  M.  &  Rob.  309  (1833)  ;  Morrison 
V.  McDonald,  21  Maine  850  (1842)  ;  Stone  v.  Graves,  8  Mo.  148  (1843)  ;  Bailey 
V.  Wiggins,  5  Harr.  (Del.)  462,  60  Am.  Dec.  650  (1854)  ;  Burnham  v.  Stevens, 
33  N.  H.  247  (1856)  ;  Lancaster  v.  Lane,  19  111.  242  (1857)  ;  Way  v.  Townsend, 
4  Allen  (Mass.)'  114  (1862)  ;  Scott  v.  Stansfield,  L.  R.  3  Exch.  220  (1868)  ; 
Pap  pa  V.  Rose,  L.  R.  7  C.  P.  32  (1871)  ;  Bnsleed  v.  Parsons,  54  Ala.  393,  25 
Am.  Rep.  688  (1875)  ;  s.  c.  25  Am.  Rep.  688,  note;  Jones  v.  Brown,  54  Iowa 
74,  6  N.  W.  140,  37  Am.  Rep.  185  (1880)  ;  Grove  v.  VanDuyn,  44  N.  J.  L.  654, 
43  Am.  Rep.  412  (1882)  ;  Rudd  v.  Darling,  64  Vt.  456,  25  Atl.  479  (1892)  ; 
Marks  V  .Sullivan,  9  Utah  12,  33  Pac.  224  (1893)  ;  Webb  v.  Fisher,  109  Tenn. 
701,  72  S.  W.  no,  60  L.  R.  A.  791,  97  Am.  St.  863  (1902)  ;  Kriigel  v.  Murphy, 
126  S.  W.  343  (Tex.  1910)  ;  AlrAia  v.  Johnson,  231  U.  S.  106  (1913)- 

"  The    statement   of    facts    is   abridged   and   the   arguments    of    counsel 
omitted. 


32  Tin;    COURT 

court,  and  no  opportunity  of  being  heard  there  in  defense  of  their 
rights.  And  their  conduct  is  the  more  objectionable,  because  they 
have  brought  up  the  cjuestion  upon  a  statement  of  facts  agreed  on 
between  themselves,  without  the  knowledge  of  the  parties  with 
whom  they  were  in  truth  in  dispute,  and  upon  a  judgment  pro  forma 
entered  by  their  mutual  consent,  without  any  actual  judicial  decision 
by  the  court.  It  is  a  question,  too,  in  which  it  appears  that  property 
to  a  very  large  amount  is  involved,  the  right  to  which  depends  on 
its  decision. 

It  is  proper  to  say  that  the  counsel  who  argued  here  the  motion 
to  dismiss,  in  behalf  of  the  parties  to  the  suit,  stand  entirely  ac- 
quitted of  any  participation  in  the  purposes  for  which  these  pro- 
ceedings were  instituted;  and  indeed  could  have  had  none,  as  they 
were  not  counsel  in  the  circuit  court,  and  had  no  concern  with  the 
case  until  after  it  came  before  this  court.  And  we  are  bound  to 
presume  that  the  counsel  who  conducted  the  case  in  the  court  below 
were  equally  uninformed  of  the  design  and  object  of  these  parties; 
and  that  they  would  not  knowingly  have  represented  to  the  court 
that  a  feigned  controversy  was  a  real  one. 

It  is  the  office  of  courts  of  justice  to  decide  the  rights  of  persons 
and  of  property,  when  the  persons  interested  can  not  adjust  them 
by  agreement  between  themselves, — and  to  do  this  upon  full  hear- 
ing of  both  parties.  And  any  attempt,  by  a  mere  colorable  dispute, 
to  obtain  the  opinion  of  the  court  upon  a  question  of  law  which  a 
party  desires  to  know  for  his  own  interest  or  his  own  purpose,  when 
there  is  no  real  and  substantial  controversy  between  those  who  ap- 
pear, as  adverse  parties  to  the  suit,  is  an  abuse  which  the  courts  of 
justice  have  always  reprehended,  and  treated  as  a  punishable  con- 
tempt of  court. 

The  suit  is  spoken  of,  in  the  affidavits  filed  in  support  of  it,  as 
an  amicable  action,  and  the  proceeding  defended  on  that  ground. 
But  an  amicable  action,  in  the  sense  in  which  these  words  are  used 
in  courts  of  justice,  presupposes  that  there  is  a  real  dispute  between 
the  parties  concerning  some  matter  of  right.  And  in  a  case  of  this 
kind  it  sometimes  happens,  that,  for  the  purpose  of  obtaining  a  deci- 
sion of  the  controversy,  without  incurring  needless  expense  and 
trouble,  they  agree  to  conduct  the  suit  in  an  amicable  manner,  that 
is  to  say,  that  they  will  not  embarrass  each  other  with  unnecessary 
forms  of  technicalities,  and  will  mutually  admit  facts  which  they 
know  to  be  true,  and  without  requiring  proof,  and  will  bring  the 
point  in  dispute  before  the  court  for  decision,  without  subjecting 
each  other  to  unnecessary  expense  or  delay.  But  there  must  be  an 
actual  controversy,  and  adverse  interests.  The  amity  consists  in  the 
manner  in  which  it  is  brought  to  issue  before  the  court.  And  such 
amicable  actions,  so  far  from  being  objects  of  censure,  are  always 
approved  and  encouraged,  because  they  facilitate  greatly  the  admin- 
istration of  justice  between  the  parties.''*  The  objection  in  the  case 
before  us  is,  not  that  the  proceedings  were  amicable,  but  that  there  is 


^Dubuque  &  P.  R.  Co.  v.  Litchfield,  23  How.  (U.  S.)  66,  16  L.  ed.  500 
(1859). 


LORD  V.  VEAZIE  33 

no  real  conflict  of  interest  between  them ;  that  the  plaintiff  and  de- 
fendant have  the  same  interest,  and  that  interest  adverse  and  in  con- 
flict with  the  interest  of  third  persons,  whose  rights  would  be  seri- 
ously affected  if  the  question  of  law  was  decided  in  the  manner  that 
both  of  the  parties  to  this  suit  desire  it  to  be. 

A  judgment  entered  under  such  circumstances,  and  for  such  pur- 
poses, is  a  mere  form.  The  whole  proceedings  was  in  contempt  of 
the  court,  and  highly  reprehensible,  and  the  learned  district  judge 
who  was  then  holding  the  circuit  court, undoubtedly  suffered  the  judg- 
ment pro  forma  to  be  entered  under  the  impression  that  there  was 
in  fact  a  controversy  between  the  plaintiff  and  defendant,  and  that 
they  were  proceeding  to  obtain  a  decision  upon  a  disputed  question 
of  law,  in  which  they  had  adverse  interests.  A  judgment  in  form, 
thus  procured,  in  the  eye  of  the  law  is  no  judgment  of  the  court. 
It  is  a  nullity,  and  no  writ  of  error  will  He  upon  it.  This  writ  is, 
therefore,  dismissed.^^ 


^^  There  must  be  a  real  controversy  presented  to  the  court.  Abstract  or 
fictitious  questions  will  not  be  decided.  Coxe  v.  Phillips,  Lee  (Tenn.)  237 
(1736)  ;  Da  Costa  v.  Jones,  Cowp.  729  (1778)  ;  In  re  Elsau,  3  L.  J.  (O.  S.) 
K.  B.  75  (1824)  ;  Glasgow  N.  Co.  v.  Iron  Ore  Co.,  L.  R.  (1910)  App.  Cas.  293; 
Smith  V.  Ciidworth,  24  Pick.  (Mass.)  196  (1837)  ;  Brcivington  v.  Lozve,  i 
Ind.  21,  48  Am.  Rep.  349  ( 1848)  ;  Berks  v.  Jones.  21  Pa.  413  ( 181:^)  ;  Willard's 
Appeal,  65  Pa.  St.  265  (1870)  ;  Murphy  v.  Railroad,  no  Mass.  465  (1872)  f 
Liille  V.  Ihorne,  93  'JSl .  Car.  69  (1885)  ;  Lincoln  v.  Aldrich,  141  Mass.  342,  5. 
N.  E.  517  (1886)  ;  Patter's  Estate.  4  Pa.  D.  R.  ^20  Ci8q^)  ;  Scott  v.  Sheehan, 
145  Cal.  691,  79  Pac.  353  (1905).  In  Mills  v.  Green,  159  U.  S.  651,  40  L.  ed. 
293  (1895),  it  is  said,  by  Gray,  J.: 

"The  duty  of  this  court,  as  of  every  other  judicial  tribunal,  is  to  decide 
actual  controversies  by  a  judgment  which  can  be  carried  into  effect,  and  not 
to  give  opinions  upon  moot  questions  or  abstract  propositions,  or  to  declare 
principles  or  rules  of  law  which  can  not  affect  the  matter  in  issue  in  the 
case  before  it.  It  necessarily  follows  that  when,  pending  an  appeal  from  the 
judgment  of  a  lower  court,  and  without  fault  of  the  defendant,  an  event 
occurs  which  renders  it  impossible  for  this  court,  if  it  should  decide  the  case 
in  favor  of  the  plaintiff,  to  grant  him  any  effectual  relief  whatever,  the  court 
will  not  proceed  to  a  formal  judgment,  but  will  dismiss  the  appeal."  Accord: 
Wilson  &  Co.  V.  Russell,  40  Iowa  697  (1875)  ;  People  v.  Troy,  82  N.  Y.  575 
(1880)  ;  State  v.  Porter,  58  Iowa  19,  11  N.  W.  514  (18S2)  ;  Cheong  Ah  Moy 
v.  United  States,  113  U.  S.  216,  28  L.  ed.  983  (1884)  ;  Flanagan  v.  Central 
Lunatic  Asylum,  79  Va.  554  (1884);  Chicago,  R.  I.  &  P.  R.  Co.  v.  Dey,  76 
Iowa  278  (1888);  People  v.  Squire,  no  N.  Y.  666  (1888);  Gloucester  v. 
Greene,  45  N.  J.  Eq.  747,  18  Atl.  81  (1889)  ;  State  v.  Board  of  Comrs.  Grant 
County,  153  Ind.  302  (1899)  ;  Watkins  v.  Huff,  94  Tex.  631  (iQoi)  ;  Tampa 
Gas  Co.  V.  Tampa,  44  Fia.  813,  2?>  So.  465  (1902)  ;  Jones  v.  Montague,  194 
U.  S.  147,  48  L.  ed.  913  (1904)  ;  Hotel  Co.  v.  Merchants  Ice  Co.,  41  Wash. 
620,  84  Pac.  402  (1906)  ;  McDaniel  v.  Htirt,  88  Miss.  769,  92  Miss.  197,  41 
So.  381  (1906)  ;  Southern  P.  T.  Co.  v.  Interstate  Commerce  Comm.,  219  U.  S. 
498  (loio)  :  Reichard's  License,  4.S  Pa.  Super_.Ct.  606  (1911)  ;  Comm.  v. 
Cairns.  46  Pa.  Super.  Ct.  06  (lOiiT 

In  Brozvn  v.  Leeson,  2  H.  Bl.  43  (1792),  an  action  was  brought  on  a  wager 
to  determine  the  number  of  ways  of  throwing  seven  and  eleven  with  two  dice. 
Lord  Loughborough  struck  the  case  off  the  list,  and  was  sustained  b}'  the 
court  in  banc. 

In  Faust  v.  Cairns,  242  Pa.  15  (1913),  an  appeal  was  taken  from  an  order 
refusing  an  mj unction  to  restram  the  board  of  health  from  maintaining  a 
quarantine.  The  quarantine  was  removed  three  months  before  the  appeal 
was  argued.   Appeal  dismissed. 

3 — Civ.  Proc. 


CHAPTER   II. 

Parties. 

SECTION  I.     IN  GENERAL. 

"In  life,  liberty  and  estate,  every  man  who  hath  not  forfeited 
them,  hath  a  property  and  right  which  the  law  allows  him  to  defend  ; 
and  if  it  be  violated,  it  gives  an  action  to  redress  the  wrong,  and  to 
punish  the  wrong  doer."    Thomas  v.  Sorrell,  Vaughan  380  (1668).^ 

"The  word  party  is  unquestionably  a  technical  word  and  has  a 
precise  meaning  in  legal  parlance.  By  it  is  understood  he  or  they 
by  or  against  whom  a  suit  is  brought,  whether  at  law  or  in  equity  ; 
the  party  plaintiff  or  defendant,  whether  composed  of  one  or  more 
individuals,  and  whetlier  natural  or  legal  persons ;  they  are  parties 
in  the  writ,  and  parties  on  the  record,  and  all  others  who  may  be 
affected  by  the  writ  indirectly  or  consequentially  are  persons  inter- 
ested, but  not  parties."  Per  Parker,  C.  J.,  in  Merchants'  Bank  v. 
Cook,  4  Pick.  405  (1826). 


MARY  J.  ASHBY  v.  JOSEPH  S.  ASHBY. 
X  Supreme  Court  of  Louisiana,  1887. 

39  La.  Ann.  105. 

Appeal  from  the  Civil  District  Court  for  the  parish  of  Orleans. 

Todd,  J. :  This  is  a  suit  instituted  by  plaintiff,  claiming  to  be  a 
judgment  creditor  of  the  defendant  Joseph  H.  Ashby,  to  annul  a 
mortgage  executed  by  him  in  favor  of  his  children — co-defendants 
— which  is.  charged  to  be  fraudulent  and  intended  to  secure  an  un- 
just claim  against  him  in  their  favor  to  the  prejudice  of  the  plain- 
tiff's rights.  The  defendant  excepted  on  the  ground  that  the  petition 
disclosed  no  cause  of  action. 

From  a  judgment  in  favor  of  the  plaintiff  annulling  the  mort- 
gage assailed,  the  defendants  have  taken  this  appeal. 

It  appears  from  the  pleadings  and  record : 

That  the  plaintiff  has  no  moneyed  judgment  against  the  defend- 
ant Joseph  H.  Ashby,  on  the  faith  of  which  she  seeks  the  annull- 
ment  of  the  mortgage.  This  judgment,  which  is  referred  to  in  the 
petition,  is  not  a  judgment  in  favor  of  the  plaintiff,  but  one  in  favor 
of  her  children,  to  whom  she  was  at  one  time  tutrix. ^ 

^"In  this  state  any  person  of  sound  mind,  of  lawful  age  and  under  no 
restraint  or  legal  disability,  has  the  legal  capacity  to  sue,  although  it  may 
ultimately  appear  that  he  has  no  cause  of  action."  Hunt  v.  Monroe,  32  Utah 
428  (1907). 

•  A  woman  appointed  to  the  office  of  tutor,  by  the  civil  law,  is  one  who  has 
the  care  of  the  person  and  property  of  a  minor. 

35 


36  PARTIES 

It  further  aiipcars  that,  when  this  suit  of  nulhty  was  instituted, 
these  children  had  attained  their  majority,  and  one  of  them  had  mar- 
ried, had  children  and  died. 

It  is  not  alleged  or  proved  that  the  plaintiff  ever  acquired  from 
her  children  this  judgment  or  any  right  thereto,  and  the  parties 
owning  the  judgment  are  not  parties  to  the  suit,  or  in  any  matter 
represented  tlierein,  but  the  plaintiff  sues  alone  and  in  her  personal 
capacity. 

It  follows,  therefore,  that  plaintiff  has  instituted  and  prosecuted 
a  suit  in  which  she  has  no  personal  interest  whatever,  and  in  Avhich 
she  does  not  represent  the  real  parties  in  interest. 

/\n  action  can  only  be  brought  by  one  having  a  real  and  actual 
interest  which  he  pursues.  C.  P.,  art.  15;  Corral  &  Co.  v.  Towboat 
Co.,  37  Ann.  803.^ 

Judgment  reversed. 


JOHN  McELHANON  v.  JOHN  McELHANON 
Assignee,  Etc.,  for  the  Use  of  Thomas  J.  Le  Compte. 

Supreme  Court  of  Illinois,  1872. 

63  ///.  457.  /^ 

Writ  of  error  to  the  Circuit  Court  of  Washington  County. 
McAllister,  J :    John  McElhanon  instituted  a  suit  in  chancery 
against  James  Hughes,  and  applied  for  an  injunction.    He  was  re- 

'  "The  rule,  I  think,  must  be  regarded  as  fundamental,  that  no  person  can 
maintain  an  action  respecting  a  subject-matter,  in  respect  to  which  he  has  no 
interest  right  or  duty,  either  personal  or  fiduciary."  Per  Van  Fleet,  V.  C,  in 
Baxter' Exr.  V.  Baxter,  43  N.  J.  Eq.  82,  10  Atl.  114  (1887).  Accord:  Miirray 
V  Webster,  5  N.  H.  391  (1831)  ;  Qajuphell  v  __GaIbreaih,  5  Watt3_iTaJ_423 
( 1836)  ;  Fiilham  v.  McCarthy,  i  H.  L.  C.  703  ( 1848)  ;  Dix  v.  Mercantile  Ins. 
Co.,  22  111.  272  (1859);  Attorney-General  v.  Telegraph  Co.,  30  Bevan  287 
(1861)  ;  Niederhans  v.  Heldt,  27  Ind.  480  (1867)  ;  J  (inns  v  Gordon.  124  Pa. 
263,  16  Atl.  862  (1889)  ;  Brock  v.  Rogers,  184  Mass.  54S,  t>9  in-  i^-  334  (1904)  ; 
"Kvng  V.  Tyler,  6  Pennew.  (Del.)  287  (1907)  ;  Clark  v.  Anderson,  103  Mame 
134  (1907). 

If  however,  an  interest  in  the  plaintiff  is  conceded,  his  motive  in  suing 
is  immaterial.  ^[asely.^PiJtsburg,  i37_Pa.  548  (18903  ;  Brockman  v.  Creston, 
79  Iowa  587  {i^oYTEggersv.  Newark,  77^1-  L-  198  (1908). 

A  plaintiff  must  show  some  injury  peculiar  to  himself  beyond  that  suf- 
fered by  the  public  at  large.  Winterbottom  v.  Lord  Derby,  L.  R.  (1866)  2 
Exch.  316.  And,  ordinarily,  he  is  not  authorized  to  bring  an  individual  action 
to  redress  some  wrong  against  the  community,  Doolittle  v.  Broome  County 
Supervisors,  18  N.  Y.  155  (1858)  ;  Buck  Mountain  Coal  Co.  v.  Lehigh  Navi- 
gation Co.,  \o  Pa.  01  (1865)  ;  Kennedy  v.  Consumers  Gas  Co.,  142  Alass.  91 
{T^^JX^eorgeTo^n  v.  Alexandria  Canal  Co.,  12  Pet.  (U.  S.)  91  (1838).  But 
such  authority  may  be  conferred  by  legislation.  Hatvthorn  v.  Natural  Car- 
bonic Gas  Co.,  194  N.  Y.  326  (1909)  ;  and  citizens  and  tax  payers  may  main- 
tain a  bill  in  equity  to  restrain  public  officers  from  acts  in  violation  of  the 
law  and  constitution.  2uil'ple  v.  Pittsburg,  212  Pa.  ^5^  ( J 905)  ;  Kircher  v. 
Pederson,  117  Wis.  68  (1903 ) .  A  civil~action  "can  notbe  maintained  in  the 
name  of  the  state  to  redress  a  purelv  private  wrong.  Attorney-General  v. 
Salem,  103  Mass.  138  (1869)  ;  People  v.  Booth,  32  N.  Y.  397  (1865)  ;  State  v. 
Parkville  &  G.  R.  Co.,  32  Mo.  496  (1862). 


STEAMBOAT  BURNS  37 

quired  to  give  a  bond  to  Hughes  in  the  penal  sum  of  $500,  with 
James  M.  McElhanon  as  his  security.  The  bond  was  given,  and  John 
McElhanon,  averring  that  he  is  the  assignee  of  Hughes  in  bank- 
ruptcy, brings  debt  upon  that  bond,  against  himself  and  surety  for 
the  use  of  Thomas  J.  Le  Comte.  The  default  of  defendant  below 
was  entered  and  plaintiff's  damages  assessed  at  $50,  whereupon 
judgment  was  rendered  in  favor  of  plaintiff,  for  debt,  $500  to  be 
discharged  upon  payment  of  the  damages.  The  case  was  brought 
to  this  court  by  writ  of  error,  and  the  principal  error  assigned  is  the 
insufficiency  of  the  declaration. 

Chitty  says  that  "it  is,  an  answer  to  an  action  that  a  party  is  le- 
gall:^  interested  in  each  side  of  the  question.    A  party  can  not  be^ 
botli  plaintiitandjkjjgjadanj ln~an"ACti_Qji7^   i  Chitty,  PI.  40.  ~1 

"^  '  This  rule  will  operate'"  altliough  the  party  appears  on  one  side 
in  his  personal  and  on  tJie  other  in  his  official  character.  Pearson  v. 
Nesbitt,  I  Dev.  315,  5  ib.  288. 

The  judgment  of  the  court  belov/  is  reversed.* 


STEAMBOAT  BURNS. 

"/  Supreme  Court  of  the  United  States,  1869. 

9  Wall.  (U.  S.)  237. 

These  were  two  cases  brought  before  the  court  by  what  pur- 
ported to  be  writs  of  error  to  the  Supreme  Court  of  Missouri.  The 
writ  in  tlie  first  case  referred  to  a  judgment  in  that  court  in  a  suit 
"between  the  steamboat  Burns,  her  tackle,  etc.,  appellant,  and  James 


*At  law  the  same  person  can  not  be  both  plaintiff  and  defendant  in  the 
same  suit.  Mainwaring  v.  Newman,  2  Bos.  &  P.  120  (1800)  ;  Holmes  v.  Hig- 
gins,  I  B.  &  C.  74  (1822)  ;  Eastman  v.  Wright,  23  Mass.  196  (1826)  ;  Portland 
Bank  V.  Hyde,  11  Maine  196  (1834)  ;  Chandler  v.  Shehan,  7  Ala.  251  (1845)  ; 
Mahan  v.  Sherman,  7  Blackf.  (Ind.)  378  (1845);  Trustees  of  Methodist 
Church  V.  Stezvart,  27  Barb.  (N.  Y.)  553  (1858)  ;  Price  i.  Spencer  7  Phda^  (Pa.) 
179  (1870)  ;  Brown  v.  Mann,  71  Cal.  192,  12  Pac.  51  (1886)  ;  Wilson  v.  Bene- 
dict, 90  Mo.  208,  2  S.  W.  283  (1886)  ;  Byrne  v.  Byrne,  94  Cal.  576  (1892)  ; 
Szveetland  v.  Porter,  43  W.  Va.  189  (1897)  ;  Oliver  v.  Oliver,  178  111.  527,  53 
N.  E.  303  (1899)  ;  Tavlor  v.  Thompson,  176  N.  Y.  168,  68  N.  E.  240  (1903)  ; 
Medlin  v.  Simpson,  144  N.  Car.  397  (1907)-  The  remedy  is  in  equity.  Cole  v. 
Reynolds,  18  N.  Y.  74  (1858)  ;  Price  v.  Spencer  gVh\\2i.  (Pa.)  281  Q873)  ;  Coop- 
er  V.  Nelson,  38  Iowa  440  ( 1874) .  TfiFcase  of  firms  having  common  members  is 
now  generally  covered  by  statutes,  e.  g.,  Pa.  act,  of  April  14,  1838,  P.  L.  457; 
Hall  V.  hnann.  34  Pa.  ^-^i  (i8=;q)  :  and  in  England  by  the  rules  of  court  under 
the  Judicature  Act  of  1873,  Order  48a,  rule  10. 

It  has  been  held  no  bar  to  a  recovery  that  one  of  several  defendants  has 
become  possessed  of  a  right  of  action  prosecuted  agaitisthim  and  his  co- 
defendants,  unless  his  name  appears  on  record  both  as  plaintiff  and  defendant. 
Blanchard  v.  Ely,  21  Wend.  (N.  Y.)  342  (1839).  See  also  Pringle  v.  Pringle, 
130  Pa.  565  (1890). 

The  authorities  differ  as  to  whether  a  plaintiff  can  summon  himself  as 
garnishee.  Compare  Graigher  v.  Notnagel,  i  Peters  C.  C.  (U.  S.)  245  (1816)  ; 
Cphh  V  Nnnemaker.  78  Pa.  50.1  (1875)  ;  Lyman  v.  Wood,  42  Vt.  113  (1869)  ; 
Harris  v.  Ludlam,  2  H.  Bl.  3^2  (1794),  with  Belknap  v.  Gihhens,  54  Mass. 
471  (1847)  ;  Hoag  v.  Hoag,  55  N.  H.  172  (1875). 


38  TARTIES 

Reynolds,  and  James  Aiken,  resi)ondcnts  and  appellees,"  in  which 
"a  manifest  error  hath  hap[)encd,  to  the  great  damage  of  the  said 
steamboat,  her  tackle,  etc.,  as  by  her  complaint  ap])ears."   The  cita- 
tion made  the  same  recital.   The  writ  and  citation  in  the  second  case 
varied  from  this  only  in  the  names  of  the  defendants  in  error. ° 
-^^         Miller,  ].:    It  is  believed  to  be  the  first  time  that  anything  but 
\  a  human  being,  or  an  aggregation  of  human  beings,  called  a  corpora- 
/tlon  or  association,  has  attempted  to  bring  a  writ  of  error  or  appeal 
in  this  court. 

It  is  said  in  support  of  the  writ  that  the  proceeding  below  was 
in  roll  against  the  steamboat  by  name,  and  that  as  it  was  so  con- 
ducted through  all  the  state  courts  it  should  be  so  here. 

There  is  notliing  in  tlie  essential  nature  of  proceedings  in  rem 
which  justifies  or  requires  this.  Whenever  the  res  is  seized  in  ad- 
miralty proceedings  proper,  or  in  revenue  or  in  other  proceedings 
partaking  of  that  character,  the  property  is  condemned  and  sold, 
and  with  the  distribution  of  the  proceeds  the  case  ends,  unless  some 
one  appears  in  court  as  claimant  either  of  the  res  or  its  proceeds.® 
When  a  claimant  appears  he  becomes  a  party  to  the  proceedings, 
and  may  defend,  take  an  appeal,  or  writ  of  error,  or  adopt  any  other 
proceeding  that  a  party  properly  before  the  court  may  be  entitled  to. 
It  is  true  that  in  placing  such  cases  on  the  dockets  of  our  courts, 
and  in  the  reports  of  our  decisions,  the  name  of  the  vessel  or  thing 
seized  is  often  retained;  but  in  all  cases  where  any  defensive  action 
is  taken,  some  person  must  appear  and  claim  an  interest  or  a  right 
to  be  heard  on  account  of  his  relation  to  the  property. 
">  If  any  person  or  corporation  whom  this  court  can  recognize  as  a 
I  legal  entity,  capable  of  sustaining  a  suit  in  this  court,  has  an  inter- 
est in  such  a  controversy,  that  party  must  connect  himself  with  the 
case  in  such  a  manner  as  to  enable  himself  to  assert  his  rights  here. 
It  can  not  be  done  in  the  name  of  a  steamboat.'^ 


°  Part  of  the  statement  of  facts  and  opinion  of  the  court  are  omitted. 

"Scott  V.  Shearman,  2  W.  Bl.  977  (1775)  ;  State  v.  One  Bottle  of  Brandv, 
43  Yt.  297  (1871). 

'  The  parties  to  an  action  must  have  legal  entities  either  as  real  persons 
or  as  artificial  persons  authorized  by  law  to  sue  or  be  sued.  White  v.  Road 
District,  9  Iowa  202  (1859)  ;  Steamboat  Pcmhinaw  v.  Wilson,  11  Iowa  479 
(1861)  ;  Mexican  Mill  v.  Jellow  Jacket  M.  Co.,  4  Nev.  40,  97  Am.  Dec.  510 
(1868)  ;  Western  and  Atlantic  R.  Co.  v.  Dalton  Marble  Works,  122  Ga.  774, 
50  S.  E.  978  (1905)  ;  Nelson  v.  Atlantic  Coast  Line  Relief  Department,  147 
N.  Car.  103  (1908)  ;  Hill  v.  Armour  Fertilizer  Works,  80  S.  E.  294  (Ga.  Aop. 
1913).  Compare  Steamboat  Kentucky  v.  Hine,  1  Greene  (Iowa)  379  (1848)  ; 
Doe  V.  Penfield,  19  Johns.  N.  Y.  308  (1812)  ;  Clark  Bro.  v.  Wychc,  126  Ga. 
24  (1906). 

Parties  to  an  action  must  be  designated  by  name  not  merely  by  descrip- 
tion. Kountzv.  Brown,  16  B.  Mon.  (Ky.)  577  (1855).  Thus,  a  suit  against  an 
"Estate"  is  not  a  suit  with  a  real  defendant.  Estate  of  Columbus  v.  Monti,  6 
Minn.  568  (1861)  ;  Knox  v.  Greenfields'  Estate,  7  Ga.  App.  305  (1910).  At  the 
common  law  the  true  Christian  name  of  the  party  was  required.  Shadgett  v. 
Clipson,  8  East.  328  (1807)  ;  Gardner  v.  Kraft,  52  How.  (N.  Y.)  499  (1877)  ; 
Anderson  v. //orw, 23  Abbotts  N.  Cas.  (N.  Y.)  475  (18S9);  Parks  v.  Tolman, 
113  Mo.  App.  14  (1905).  A  mere  misnomer  is  not  fatal  but  may  be  cured  by 
amendment.    Horbach  v.  Knox.  6  Pa.  xjj   (1847);   Welch  v.  Hull,  72,  Mich. 

47  (ir- 


In  some  jurisdictions  where  the  plaintiflF  is  ignorant  of  the  defendants' 


KARGES  FURNITURE  CO.  V.  AMALGAMATED,   &C.,  UNION  39 

An  examination  of  the  records  in  these  cases  shows  that  Adolph 
Heinecke  did  in  the  inferior  court  claim  to  be  the  owner,  and  de- 
fended the  suit  in  the  name  of  the  steamboat.  He  Hkewise  made 
affidavit  that  he  was  the  owner,  and  gave  bond  to  enable  him  to 
appeal  to  the  Supreme  Court  of  that  state.  But  instead  of  taking  the 
appeal  in  his  own  name  he  took  it  in  the  name  of  the  steamboat.  We 
are  of  opinion  that  by  a  liberal  construction  of  the  record  he  may  be 
so  far  regarded  as  claimant  and  party  to  the  record  as  to  enable  him 
to  bring  a  writ  of  error  to  this  court  in  his  own  name  if  he  shall  be 
so  advised.   The  present  writs  are  dismissed. 


A 


KARGES    FURNITURE   CO.   v.    AAIALGAMATED   WOOD- 
WORKERS LOCAL  UNION,  No.  131.  ^ 

us, 

Supreme  Court  of  Indiana,  1905. 

Suit  by  the  Karges  Furniture  Company  against  the  Amalga- 
mated  Woodworkers  Local  Union  Number  131  and  others.  From 
a  decree  for  plaintiff  against  certain  defendants,  plaintiff  appeals.^ 

Hadley,  J. :  Appellant  brought  this  suit  against  the  appellees, 
the  Amalgamated  Woodworkers  Union  No.  131  of  Evansville,  an 
unincorporated  labor  organization,  and  its  members,  to  enjoin  them, 
such  members  being  on  a  strike,  from  picketing,  intimidating,  and 
otherwise  interfering  w4th  the  plaintiif's  employes  and  business. 
The  complaint,  in  two  paragraphs,  was  answered  by  a  general 
denial.  There  was  a  trial,  special  findings,  and  injunction  awarded 
against  fourteen  of  the  appellees,  and  finding  and  decree  in  favor  oP 
the  remaining  appellees,  including  said  amalgamated  woodworkers 
union.  "-^ 

The  first  question  to  be  considered  is :  Can  an  action  be  main- 
tained against  an  unincorporated  society  of  association?  "Private 
corporations,"  says  Field,  J.,  in  Pembina,  etc.,  Mining  Co.  v.  Penn- 
sylvania (1888),  125  U.  S.  181,  189,  8  Sup.  Ct.  737,  31  L.  ed.  650, 
"are  merely  associations  of  individuals  united  for  a  special  purpose, 
and  permitted  to  do  business  under  a  particular  name,  and  have  a 


name  he  ma}^  designate  the  defendant  b}^  a  fictitious  name.  In  New  York  a 
description  identifying  the  person  intended  must  be  added.  New  York  Code 
of  Civil  Procedure,  §  451;  Simon  v.  Vndcrzvood,  61  Misc.  (N.  Y.)  369 
(1908)  ;  The  California  Code  Civil  Procedure,  §  474,  requires  the  record  to 
be  amended  by  inserting  the  true  names  when  discovered.  Alameda  County  v. 
Crocker,  125  Cal.  loi  (1899)  ;  Moore  v.  Lewis,  76  Mich.  300  (1889)  ;  Gillian 
v.  McDowall,  66  Neb.  814  (1902). 

Persons  suing  or  sued  in  a  representative  capacity  are  distinct  persons 
and  strangers  to  any  right  or  liabiUty  they  may  have  as  individuals.  Leonard 
V.  Pierce,  182  N.  Y.  431  (1905).  But  a  description  of  the  character  in  which  a 
party  sues  or  is  sued  must  be  treated  as  surplusage  when  the  facts  establish  a 
right  or  liability  independent  of  the  description.  Hampton  V.  Foster,  I2j  Fed. 
468  (1904)  ;  Filson  V.  Dunbar.  26  Pa.  47=;  (i&'^t).  Compare  Clifford  v.  Pru- 
dential  Insurance  Co.,  161  Pa.  2^7  CiSoj."). 

^  ^OnTy  so  much  of  the  case  is  given  as  relates  to  the  question  of  procedure. 


40  TARTIES 

succession  of  members  without  dissolution."  In  England  corpora- 
tions exist  only  hy  virtue  of  letters  patent  issued  by  permission  of 
the  crown,  and  in  this  state  corporations  can  be  created  only  by 
special  permission  of  the  state  expressed  in  legislative  enactment. 
Corporations  may  in  their  corporate  name  sue  and  be  sued,  and  hold 
title  to  property.  The  interests  of  tlieir  several  members  are  repre- 
sented by  shares,  which  may  be  sold  and  transferred  to  a  stranger 
without  affecting  a  dissolution  of  iJie  status  of  the  corporate  body. 
A  fundamental  purpose  for  the  creation  of  corporations  is  to  sub- 
serve public  welfare  and  convenience  by  bestowing  the  character  of 
individuality  upon  a  combination  of  capital  and  individuals,  for  the 
accomplishment  of  such  things  as  may  not  be  so  well  or  rea4ily 
achieved  by  a  single  person,  and  that  may  not  be  ended  by  death, 
or  the  withdrawal  of  a  part  of  their  members ;  and  such  body  being 
created  by  authority  of  a  statute,  and  endowed  with  certain  rights 
and  obligations,  is  recognized  by  the  law  as  an  artificial  person  pos- 
sessed of  the  right  to  sue  and  be  sued. 

On  the  other  hand,  in  tlie  absence  of  an  enabling  statute  defining 
the  rights  and  liabilities  of  the  members,  societies,  associations, 
partnerships,  and  other  bodies,  combined  under  their  own  rule,  for 
their  own  private  benefit,  and  without  any  express  sanction  of  law, 
are  not,  in  the  collective  capacity  and  name,  recognized  at  common 
law  as  havirig  any  legal  existence  distinct  from  their  members,  hence 
no  power  to  sue  orbe  sued  in  the  company  name.  Such  unincor- 
porated associafions,  so  far  as  their  rights  and  liabilities  are  con- 
.  cerned,  are  rated  as  partnerships,  and  to  enforce  a  right  either  for  or 
(  against  them,  as  in  partnerships,  the  names  of  all  the  individual 
I  members  must  be  set  forth  either  as  plaintiffs  or  defendants.^ 

We  have  no  statute  abrogating  the  rule  at  common  law ;  hence 
it  must  be  held  that  this  rule  is  still  in  force  in  this  state,  and,_re- 
gardless  of  the  eyideijce.,,  the  court  committed  no  error  in  denying 
"an  Tfijunction  against  the  appellee,  the  Amalgamated  Woodworkers 
Local  Union  No.  131.^° 

Affirmed. 


^  Hays  V.  Lanier,  3  Blackf.  (Ind.)  322  (1833)  ;  Hughes  v.  Walker, 
4  Blackf.  (Ind.)  50  (1835)  ;  Holland  v.  Butler,  5  Blackf.  (Ind.)  255  (1839)  ; 
Livingston  v.  Harvey,  10  Ind.  218  (1858)  ;  Adams  Express  Co.  v.  Hill,  43  Ind. 
157  (1873)  ;  Pollock  V.  Dunning,  54  Ind.  115  (1876)  ;  22  Enc.  PI.  and  Pr.  230. 
While  voluntary  associations  have  frequentl)^  been  described  as  partnerships, 
they  are  not  partnerships  in  the  true  sense  of  that  term,  since  there  exists  no 
authority  in  a  single  member  to  bind  the  others  by  his  individual  act,  and  the 
death  or  retirement  of  a  member  does  not  dissolve  the  society.  Dicey  on 
Parties  (2d  ed.)   149;  4  Cyc.  301;  Ash  v.  Guie,  97  Pa.  493^  39  Am.  Rep.  818 

(1881).  " — \ ~7' 

"  At  common  law  a  voluntary,  unincorporated  association  being  a  mere 
aggregation  of  individuals,  can  not  sue  or  be  sued  in  the  name  of  the  associa- 
tion. Lloyd  V.  Loaring,  6  Ves.  yjz  (1802)  ;  Pipe  v.  Bateman,  i  Iowa  369 
(1855)  ;  Marsh  v.  Astoria  Lodge,  27  111.  421  (1862) ;  Detroit  S.  B.  v.  Detroit 
Agitations  Verein,  44  Mich.  313,  6  N.  W.  675,  38  Am.  Rep.  270  (1880)  ;  Bar- 
hour  v.  Albany  Lodge,  72>  Ga.  474  (1884)  ;  St.  Paul's  Typothetae  v.  St.  Paul's 
Bookbinders  Union,  94  Minn.  351  (1905)  ;  Mais.ch  v.  Order  of  Americus,  22i 
Pa.,  St.  199  (1909)  ;  Partners  Mutual  v.  Rescr,  43  Ind.  App.  634  (1908); 
O'kourkFw.  KetTey^P.  Co.,  135  S.  W.  loii  (1911  Mo.  App.)  ;  Hanley  v.  Elm 
Grove  M.  T.  Co.,  129  X.  \V.  807  (Iowa  191 1)  ;  Home  Benefit  Assn.  v.  West- 


WILSON   V.   LOUISIANA  PURCHASE  EXPOSITION    COMMISSION        4I 


WILSON    V.    LOUISIANA    PURCHASE    EXPOSITION 
COMMISSION. 


/ 


Supreme  Court  of  Iowa,  1907. 
133  Iowa  586. 


This  was  a  suit  brought  by  the  plaintiff  for  a  writ  of  mandamus 
to  compel  the  commission  to  pay  him  the  sum  of  $200  v/hich  he 
claimed  to  be  due  from  the  State  of  Iowa  under  an  alleged  contract 
with  the  commission  by  which  he  was  engaged  to  work  for  the  hpr- 
ticultural  department.    The  executive  committee  of  the  commission 
had  disallowed  his  bill.    The  answer  alleged  that  the  suit  was  m ) 
effect  against  the  State  of  Iowa  and  also  put  in  issue  the  materialS 
averments  of  the  petition.    The  court  below  dismissed  the  petition  L_ 
and  plaintiff  appealed. ^^ 

Sherwin,  J. :  The  appellant  makes  but  one  point  in  his  brief 
and  argument  of  this  case,  which  is  that  the  court  erred  in  refusing 
to  submit  the  issues  involved  to  a  jury  for  determination.  On  the 
other  hand,  the  appellees  contend  that  the  suit  can  not  be  main- 
tained, because  it  is  in  effect  a  suit  against  the  state,  and  because  the 
state  has  never  consented  thereto.  We  think  it  must  be  conceded 
that,  under  tlie  allegation  of  the  petition,  the  defendants  in  this  case 
are  nominal  only.  The  Louisiana  Purchase  Exposition  Commission 
was  a  creature  of  the  state,  created  for  the  specific  purpose  of  rep- 
resenting the  state  and  its  interests  at  the  exposition  bearing  its^ 
name.  All  expenses  incurred  by  it  in  the  execution  of  its  delegated  j 
powers  were  payable  from  the  funds  of  the  state  set  apart  by  legis-  \ 
lative  authority  for  that  express  purpose.  The  commission  was  \ 
clearly  but  an  agent  of  the  state  through  whom  the  public  funds  were 
to  be  disbursed,  and  this  disbursement  was  authorized  by  la\y  only 
upon  the  exercise  of  the  discretion  and  judgment  of  the  commission. 
While  the  state  is  not  named  as  a  party  in  the  action,  it  is  quite  clear 
to  us  that  it  is  in  fact  the  actual  party  in  interest.  If  the  writ  prayed 
for  were  to  be  issued,  it  would  compel  the  defendant  to  make  a  draft 


er,  146  S.  W.  1022  (Tex.  1912)  ;  Francis  v.  Perry,  82  Misc.  (N.  Y.)  271 
(1913)  ;  Kimball  v.  Lower  Cohmibia  Relief  Assn.,  135  Pac.  877  (Ore.  IQ13)  ; 
Caine  v.  Armenia  Lodge,  77  S.  E.  184  (Ga.  1913)-  "At  law,  if  the  objection  is/ 
properly  taken,  every  member  of  an  unincorporated  association  must  be 
joined  as  a  party  defendant.  In  equity,  if  the  members  are  numerous,  a  num- 
ber of  members  may  be  made  parties  defendant  as  representatives  of  the 
class."  Pickett  v.  Walsh,  192  Mass.  572  ( 1906)  ;  Mcu.v  v.  Malthy,  2  Swanst. 
277  (1818)  ;  Snow  v.  Wheeler,  113  Mass.  179  (1873)  ;  Piatt  v.  Colvin,  50  Ohio 
St.  703  (1893),  735;  N.  Y.  Code  Civ.  Proc,  §  1919;  Ostrom  v.  Greene,  161 
N.  Y.  353,  55  N.  E.  919  (1900);  Taff  Vale  R.  Co.  v.  Amalgamated  Soc, 
L.  R.  (1901);  App.  Cas.  426;  Pearson  v.  Andcrhnrg,  28  Utah  495  (1905); 
Wolfe  v.  Limestone  Council,  27,3,  Pa.  3.S7  (1912).  By  statute,  in  some  jurisdic- 
tions, an  unincoporated  society  known  by  some  distinguishing  name,  may  sue 
or  be  sued  by  such  name.  22  Enc.  PI.  &  Pr.  235,  245;  Hiith  v.  Humboldt 
Stamr.i,  61  Conn.  227  (1891)  ;  Ex  parte  Hill,  51  So.  786  (Ala.  1910). 
**  The  statement  of  facts  is  abridged. 


42  PARTIES 

)upon  state  funds ;  in  other  words,  the  effect  thereof  would  be  to 
compel  the  state  itself  to  pay  the  plaintiff's  claim,  which  is  an  un- 
liquidated demand  for  which  no  specific  provision  has  been  made 
from  state  funds.  It  is  fundamental  that  a  state  can  not  be  sued  in 
its  own  courts  witliout  its  consent,  and  it  is  a  further  rule  that  a 
litiji^ant  will  not  be  permitted  to  evade  the  general  rule  by  bringing 
action  against  the  servants  or  agents  of  the  state  to  enforce  satisfac- 
tion for  claims.  Cunningham  v.  Macon,  etc.,  R.  R.  Co-,  109  U.  S. 
446  (3  Sup.  Ct.  292,  2y  il.  ed.  992)  ;  In  re  Ayres,  123  U.  S.  443  (8 
Sup.  Ct.  164,  31  L.  ed.  216)  ;  Aplin  v.  Board  of  Supervisors  of 
Grand  Traverse  County,  73  Mich.  182  (41  N.  W.  223,  16  Am.  St. 
Rep.  576)  ;  People  v.  Didaney,  96  111.  503 ;  Cornmonwealth  v.  Wick- 
er sham,  go  Pa.  311 ;  Weston  v.  Dame,  51  Maine  461. 

Under  the  rule  that  a  state  can  not  be  sued  in  its  ov/n  courts  with- 
out its  consent,  it  necessarily  follows  that  a  writ  of  mandamus  will 
not  ordinarily  issue  to  compel  state  officers  or  agents  to  do  an  act 
involving  discretionary  or  judicial  determination  of  the  question. 
Nor  will  such  w^it  issue  to  compel  the  state  to  execute  a  contract 
made  by  it.  Nor  will  the  writ  issue  to  compel  the  allowance  of  a 
rejected  or  disputed  claim.  Payne  v.  Board  of  Wagonroad  Com- 
missioners, 4  Idaho  384  (39  Pac.  548)  ;  State  v.  M  err  ell,  43  Neb. 
575  (61  N.  W.  754)  ;  State  v.  Commissioners,  26  Ohio  St.  364.  It 
is  made  to  appear  from  the  allegations  of  the  petition  herein  that  the 
)plaintiff's  claim  for  services  was  to  be  audited  and  allowed  before  a 
voucher  w^as  issued  therefor  by  the  executive  committee  of  the 
defendant;  and,  under  the  rule  of  the  cases  heretofore  cited,  and 
many  others  which  might  be  cited,  a  writ  of  mandamus  will  not 
issue  to  compel  an  officer  or  tribunal  to  do  an  act  involving  discre- 
tionary or  judicial  determination.  This  branch  of  the  case  has  not 
been  argued  by  the  appellant,  and  we  need  give  it  no  further  con- 
sideration. For  the  reasons  thus  briefly  stated,  there  was  no  error 
in  dismissing  the  plaintiff's  petition,  and  we  need  not  determine 
whether  the  plaintiff  was  entitled  to  a  trial  by  a  jury  if  the  court  had 
jurisdiction  of  the  case.^- 

Affirmed. 


"Accord:  Young  v.  The  Scotia,  L.  R.  (1903)  A.  C.  501 ;  Kiersted  v.  Peo- 
ple, I  Abb.  Pr.  (N.  Y.)  385  (1855)  ;  Seifs  v.  MesserscJwiitt,  117  N.  Y.  App. 
Div.  401  (1907);  Kansas  v.  Appleton,  73  Kans.  160  (1906);  Nash  v. 
Conuitomvealth,  174  Mass.  335  (1899)  ;  Hodqdon  v.  Haverhill,  193  Mass.  406 
(1907);  Alabama  Industrial  School  v.  Addler,  144  Ala.  555  (1905);  Union 
Trust  Co.  V.  California,  154  Cal.  716  (1908)  ;  Thomas  v.  State,  16  Idaho  81 
(1909)  ;  Kansas  v.  United  States,  204  U.  S.  331  (1907)  ;  Statham  v.  Watham 
andthe  Gaekwar  of  Baroda,'L.R.  (1912)  Prob.  Div.  92;  Porto  Rico  v.  Ramos, 
232  U.  S.  627  (1914).  For  cases  where  the  plaintiff  was  by  statute  permitted 
to  sue  the  state,  see  Russ  v.  Commonzi'ealth,  210  Pa.  544  (1905)  ;  Nus.^bamn  v. 
New  York,  119  App.  Div.  (N'.  Y.)  755  (1907T 

A  foreign  sovereign  or  state  can  not  be  made  a  defendant  without  his, 
or  its,  consent.  Mighell  v.  Sultan  of  Jahore,  L.  R.  (1894)  i  Q.  B.  D.  149; 
The  Parliament  Beige,  L.  R.  (1880)  5  Prob.  Division  197;  Strousbcrg  v. 
Costa  Rico,  44  L.  T.  (N.  S.)  199  (1880)  ;  Long  v.  The  Tampico,  16  Fed.  491 
(1883)  ;  Mason  v.  Inter  Colonial  Railroad  nf  Canada,  197  Mass.  349  (1908). 
But  a  sovereign  or  state  may  sue.  Dela field  v.  Illinois,  2  Hill  (N.  Y.)  159 
(1841)  ;  Honduras  v.  Soto,  112  N.  Y.  310  (1889)  ;  State  v.  Ohio  Oil  Co.,  150 
Ind.  21   (1897)  ;  and  then  may  be  subjected  to  a  counter  claim  in  mitigation 


CLAY  V.  OXFORD  43 

CLAY  V.    OXFORD.  V 

Court  of  Exchecquer,  1866. 
L.  R.  (1866)  2  Exch.  53. 

This  action  was  commenced  on  the  loth  of  May,  in  the  name  of 
John  Clay,  as  plaintiff.  It  was  afterwards  discovered  that  John 
Clay  had  died  before  the  date  of  the  writ,  and  on  the  14th  of  June 
a  summons  was  taken  out  to  substitute  the  names  of  his  executrix 
and  executors  as  plaintiffs.  This  summons  was  abandoned;  but  on 
the  7th  of  November,  another  summons  to  the  same  effect  was  taken 
out  before  Martin,  B.,  who  made  the  order  prayed.  It  was  desired 
to  have  the  action  continued,  in  order  that  some  depositions  which 
had  been  taken  before  the  discovery  of  John  Clay's  death  might  b 
read  in  the  cause.^^ 

J.  A.  Russell  having  obtained  a  rule  nisi  to  rescind  this  order, 

Jones,  Q.  C,  showed  cause. — The  amendment  asked  is  not  be- 
yond what  might  have  been  made  at  common  law  in  cases  where,  as 
in  this  case,  a  peculiar  reason  of  convenience  operates  in  favor  of 
continuing  the  existing  suit. 

J.  A.  Russell,  in  support  of  the  rule,  was  not  called  upon. 

Bramvvell,  B.  :  This  is  not  a  case  where  it  can  be  said  that 
persons,  not  formally  entitled  to  be  parties,  have  brought  an  action 
to  try  certain  matters  perfectly  well  known  to  both  sides,  which  is 
the  explanation  of  Blake  v.  Done,  7  H.  &  N.  465,  31  L.  J.  Ex.  100, 
and  La  Banca  Nazionale  v.  Hamburger,  2  H.  &  C.  330.  But  here 
the  plaintiff  is  altogether  wrong,  or  rather  there  is  no  plaintiff;  the 
man  in  whose  name  the  action  was  brought  was  dead.  It  can  not  be 
said  that  this  is  an  amendment  "necessary  for  tlie  purpose  of  de- 
termining in  the  existing  suit  the  real  question  in  controversy  be- 
tween the  parties,"  nor  is  this  an  application  made  between  the  par- 
ties to  the  suit ;  for  there  is  no  plaintiff,  and,  therefore,  no  existing 
suit,  and  no  question  in  controversy  between  the  parties.  If  we 
could  see  some  person  suing  who  had  a  beneficial  interest  in  the 
claim  made,  though  not  legally  entitled  to  sue,  the  case  would  be 
within  the  principle  of  the  authorities  cited.  But  the  power  of 
amendment  is  limited  to  cases  where  there  was  originally  a  party 
suing,  possessed,  though  with  a  variety  in  legal  description,  of  the 
same  interest  with  the  party  to  be  substituted.^* 

Rule  absolute. 


of  the  relief  claimed  by  the  plaintiff.  South  African  Republic  v.  La  Campagne 
Franco-Beige,  L.  R.  (1898)   i  Ch.  Div.  190. 

"Concurring  opinions  of  Kelly,  C.  B.,  Chamrell,  B.  and  Pigott,  B.  are 
omitted.  In  England  now  under  the  rules  of  court,  order  16,  rule  2,  where  an 
action,  through  "a  bona  fide  mistake,  is  commenced  in  the  name  of  the  wrong 
person  as  plaintiff,  the  court  may  substitute  a  new  plaintiff.  Hughes  v.  Pump 
House  Hotel  Co.,  L.  R.  (1902)  2  K.  B.  485.  Upon  this  principle  an  executor 
was  substituted  for  a  plaintiff  dead  when  the  suit  was  brought  in  Ram  v. 
Tinn.  19  Western  Canada  L.  R.  529  (1911). 

"Accord:  Doe  v.  Butler,  3  Wend.  (N.  Y.)  149  (1829)  ;  Hurst  v.  Fisher, 
I  W.  &  S.  438  (1841)  ;  Alexander  &  Bros.  v.  Davidson,  2  McM.  (S.  Car.)  49 


44  PARTIES 


y 


KENYON    v.    SAUNDERS. 

Supreme  Court  of  Rhode  Island,  1894. 

18  R.  I.  590." 

Stiness,  J. :  Susan  C.  Kenyon  died  in  August,  1893,  leaving  a 
will,  from  the  probate  of  which  her  husband,  George  N.  Kenyon, 
appealed.  At  the  time  of  taking  the  appeal  he  was  serving  a  sen- 
tence of  fiTte'en"years  "imprisonment  in  the  state  prison  for  the  crime 
of  manslaughter,  imposed  by  this  court  at  the  March  term,  1893, 
which  sentence  is  still  in  force.  A  motion  to  dismiss  the  appeal  was 
granted  by  the  common  pleas  division  on  the  ground :  First,  that 
said  George  N.  Kenyon  was  incapacitated,  by  reason  of  his  sen- 
tence and  imprisonment  to  take  the  appeal  or  to  sign  and  seal  the 
appeal  bond  required  by  law. 

Undoubtedly  under  the  common  law  of  England  a  person  con- 
victed of  a  felony  could  not  maintain  an  action.  This  rule  was 
founded  upon  the  reason  that  as  the  conviction  worked  a  forfeiture 
of  goods  to  the  crown,  he  had  no  longer  any  property  to  sue  for.  But 
under  our  law,  Public  Stat.  R.  I.  ch.  248,  sec.  34,  no  conviction  or 
sentence  for  an  offense  whatsoever  works  a  forfeiture  of  estate.  The 
reason  for  the  commion-law  rule  does  not  here  exist,  and  an  enforce- 
ment of  it  might  practically  work  a  forfeiture  of  estate.  Indeed, 
this  case  is  a  plain  example  of  the  possibility.  Here,  assuming  the 
appellant's  interest  in  the  estate  and  the  invalidity"  of  tlie  will,  he  is 
the  party  to  take  an  appeal,  and  it  must  be  taken  within  forty  days 
from  the  probate.  If  it  should  be  held  that  his  conviction  deprives 
him  of  his  right  to  appeal,  then  he  would  thereby  also  be  deprived 
I  of  the  power  ever  to  enforce  his  right  to  the  property  itself.  Not- 
withstanding the  difficulties  which  may  attend  cases  of  this  kind, 
such  a  rule  would  be  contrary  to  tlie  spirit  of  the  statute  and  unsup- 
ported by  the  reason  upon  which  it  was  originally  based.  A  convict 
is  neither  civilly  dead,  nor  deprived  of  his  rights  of  property;" and, 
If  this  be  so,  he  should  be  entitled  to  enforce  such  right  when  it  is 
necessary  to  do  so.^® 

Reversed. 


(1841)  ;  Bollinger  v.  Choiitcan,  20  Mo.  89  (1854)  ;  Wolf  v.  Brown,  142  Mo. 
612  (i8q7):  Kountz  v.  National  T.  Co.,  io7  Pa.  St.  ^a8^47  Atl.  350  (1900), 
and  see  Lormg  v.  Folger,  73  Mass.  505  (1856)  ;  Winship  v.  Conner,  42  N.  H. 
341  (1861)  ;  Watt  V.  Brookover,  35  W.  Va.  323,  13  S.  E.  1007,  29  Am.  St. 
811  (1891).  As  to  whether  the  rule  applies  to  nominal  plaintiffs,  compare 
Lewis  V.  Austin,  144  Mass.  383,  11  N.  E.  538  (1887)  ;  Denton  v.  Stephens,  32 
Miss.  194  (1855)   with  Karrick  v.  Wetmore,  22  App.  D.  C.  487  (1903). 

At  common  law  the  death  of  either  party  to  a  suit  before  verdict  and 
judgment  abated  the  action,  but  by  statutes  it  is  now  provided  that  if  the 
cause  of  action  survives,  the  suit  shall  not  abate  but  may  be  continued  by  or 
against  the  representatives  of  the  deceased.  5  Enc.  PI.  &  Pr.  786;  i  Cyc.  47 
and  cases  cited.  As  to  the  survival  of  the  cause  of  action,  see  Street's  Foun- 
dation of  Legal  Liability,  vol.  3,  ch.  6.  Hayden  v.  Vreeland,  37  N.  J.  L.  Z72, 
18  Am.  Rep.  723  (1875). 

"A  part  only  of  the  opinion  of  the  court  is  printed. 

""Besides  men  attainted  in  a  praemunire,  every  person  that  is  attainted 
of  high  treason,  petit  treason,  or  felony,  is  disabled  to  bring  any  action ;  for 


MAC  REA  V.   KANSAS  CITY  PIANO  CO.  45 


J.  D.  MacRAE  and  L.  S.  NAFTZEGER  v.  THE  KANSAS 
CITY  PIANO  COMPANY. 

Supreme  Court  of  Kansas,  1904. 

69  Kans.  457. 

Cunningham,  J. :  The  Kansas  City  Piano  Company  brought 
its  action  in  replevin  against  J.  D.  MacRae  to  recover  the  possession 
of  a  piano.  A  redeUvery  bond  was  given  by  MacRae,  with  L.  S. 
Naftzger,  one  of  the  plaintiffs  in  error,  as  surety,  and  the  instru- 
ment retained.  The  piano  company  had  judgment  for  the  recovery 
of  the  possession  of  it  and,  upon  its  inability  to  obtain  it  or  Mac- 
Rae's  failure  to  deliver  it,  for  the  recovery  of  the  sum  of  $200.  To 
reverse  that  judgment  MacRae  brought  proceedings  in  error  in  this 
court,  but  it  was  affirmed.^"     {MacRae  v.  Piano  Co.,  64  Kans.  580.) 

After  the  final  determination  of  that  action  the  piano  company 
caused  garnishment  summons  to  be  issued  and  served  on  plaintiff 
in  error  Naftzger.  In  this  garnishment  proceeding  MacRae  filed 
his  answer  setting  out  the  reasons  why  the  funds  in  the  hands  of 
Naftzger  belonging  to  him  should  not  be  subjected  to  the  payment 
of  the  above  money  judgment  against  him.  The  first  reason,  briefly 
summarized,  was  that,  after  the  commencement  of  the  action  and 
prior  to  the  rendition  of  the  judgment,  the  piano  company,  which 
was  a  Missouri  corporation,  had  been  dissolved  in  accordance  with 
the  law  of  its  domicil;  that  more  than  one  year  had  elapsed  since 
its  dissolution,  and  the  action  had  not  been  revived  in  the  name  of 
the  real  parties  in  interest  or  the  successors  in  interest  of  the  com- 
pany, or  in  the  name  of  any  one  authorized  further  to  prosecute  the 
case.  He  set  out  the  statute  of  the  State  of  Missouri  in  force  at  the 
time  of  the  dissolution  of  the  corporation,  which,  in  so  far  as  it  re- 
lates to  the  persons  who  are  authorized  to  carry  on  pending  litiga- 


he  is  extra  legem  posiius,  and  is  accounted  in  law  civiliter  mortuns."  Coke 
on  Littelton  130  a.  By  the  act  of  33  and  34  Vict.  ch.  23  ( 1870)  ;  forfeitures  ^ 
for  treason  and  felony  are  abolished  but  a  convict  is  declared  incapable  of  \ 
bringing  a  suit  at  law  or  in  equity  and  the  Crown  may  appoint  an  adminis- 
trator of  the  convict's  property.  Carr  v.  Anderson,  L.  R.  (1903)  i  Ch.  D.  90. 
The  American  cases  are  generally  in  accord  with  the  principal  case. 
Cannon  v.  Windsor,  i  Houst.  (Del.)  143  (1850)  ;  Willingham  v.  King,  23 
Fla.  478  (1887)  ;  Dade  Coal  Co.  v.  Haslett,  83  Ga.  549  (1889)  ;  San  Antonio 
R.  Co.  V.  Gonzales,  72  Pac.  213  (Tex.  1903).  In  Kansas  an  action  for  the 
recovery  of  property  belonging  to  a  convict  must  be  brought  by  his  trustee. 
New  V.  Smith,  84  Pac.  1030  (Kans.  1906).  Under  a  statute  suspending  civil 
rights  during  the  term  of  imprisonment  an  escaped  convict  can  not  sue. 
Beck  V.  Beck,  36  Miss.  J2  (1858).  Otherwise  where  he  escapes  into  another 
state,  Wilson  v.  King,  59  Ark.  :^2  (1894).  The  fact  that  the  civil  rights  of  a 
convict  are  suspended  will  not  prevent  him  from  being  sued.  Coppin  v.  Gun- 
ner, 2  Ld.  Ravm.  1572  (1730);  Ramsdcn  v.  Macdonald,  i  Wils.  217  (1748)  ; 
Morris  v.  Wdlsh,  14  Abb.  Pr.  (N.  Y.)  387  (1862)  ;  Bonnell  v.  Railroad  Co., 
12  Hun  (N.  Y.)  218  (1877)  ;  Broivn  v.  Mann,  68  Cal.  517  (1886)  ;  Gray  v. 
Gray,  104  Mo.  App.  520  (1904). 

As  to  civil  death  see  Plainer  v.  SJierzvood,  6  Johns.  Ch.    (N.  Y.)    118 
(1822)  ;  Avery  v.  Everett,  no  N.  Y.  317  (1888). 

"  Part  of  the  opinion  of  the  court  is  omitted. 


46  PARTIES 

tion  on  behalf  of  the  stoekholders  thereof,  is  substantially  tlie  same 
as  the  Kansas  statute  (Gen.  Stat.  1901,  par.  1312).  This  provides 
that  the  directors  or  managers  of  a  dissolved  corporation  shall  be 
trustees  for  the  creditors  and  stockholders  thereof,  and  as  svich  may 
maintain  iudicial  proceedings  for  the  purpose  of  collecting  debts 
due  to  such  corporation.  The  Missouri  statute  specifically  provides 
that  such  proceedings  shall  be  "by  the  name  of  the  trustees  of  such 
corporation,  describing  it  by  its  corporate  name." 

No  issue  was  taken  upon  the  truth  of  these  answers  by  any  plead- 
ing by  the  piano  company.  The  court,  however,  proceeded  to  render 
judgment  directing  payment  of  the  money  in  the  hands  of  Naftzger 
into  court  to  be  distributed  in  a  manner  that  would  protect  him,  and 
from  that  judgment  this  proceeding  in  error  was  brought  by  Mac- 
Rae  and  Naftzger. 

The  first  defense  seems  quite  sufficient.  The  dissolution  of  a  cor- 
poration operates,  as  to  it,  the  same  as  the  death  of  an  individual ; 
all  its  powers,  prerogatives  and  authority — its  life — ceased,  and  all 
legal  proceedings  then  pending  were  at  once  suspended.  At  the 
common  law  this  termination  of  corporate  powers  became  so  radical 
that  a  corporate  debtor  was  entirely  discharged  of  his  obligation, 
and  all  action  by  or  against  it  were  at  once  and  forever  abated ;  not 
even  an  execution  on  a  judgment  theretofore  obtained  could  issue. 
(9  A.  &  E.  Encyc.  of  Law  (2d  ed.,  603;  10  Cyc.  1310).  It  is 
only  in  virtue  of  some  statute  authorizing  it  or  some  principle  of 
equity  requiring  it  that  these  results  may  be  avoided,  or  that  pending 
proceedings  may  be  further  prosecuted,  or  judgments  already  ren- 
dered enforced.  It  is  not  necessary  now  to  decide  whether  the  bar 
of  the  statute  had  run  upon  a  proceeding  to  revive  this  action  in  the 
name  of  the  parties  who,  the  statute  says,  may  further  prosecute  it. 
It  is  sufficient  to  say  that  after  the  dissolution  of  the  corporation 
such  substitution  under  authority  of  such  statute  and  in  pursuance 
of  its  terms,  must  be  had  in  order  that  the  action  may  proceed.  It 
could  no  longer  be  maintained  in  the  name  of  the  dissolved  corpora- 
tion. (Paola  Town  Co.  v.  Kriitz,  22  Kans.  725 ;  Eagle  Chair  Co.  v. 
Kelsey,22,  Kans.  632.)  The  defendants  could  raise  this  question.  They 
could  well  say  that  there  was  no  one  authorized  to  receive  the  fruits 
of  this  action,  that  had  there  been  the  money  judgment  could  have 
been  avoided  by  turning  over  the  replevied  property  to  the  persons 
authorized  to  receive  it.  In  face  of  the  undenied  facts  pleaded 
relative  to  the  dissolution  of  the  company  and  the  failure  to  substi- 
tute the  parties  whom  the  statute  authorizes  to  carry  on  the  litiga- 
tion, we  are  of  the  opinion  that  the  court  erred  in  proceeding  with 
the  case  without  such  substitution.^* 

Judgment  reversed. 

"Accord:  CommercialBankv.  Lockii'ood,2Ua.rr.  (Del.)  8  (1835)  ■,Bonaffe 
V.  Fowler,  7  Paige  Ch.  (N.  Y.)  576  (1839)  ;  Miami  Exporting  Co.  v.  Gano, 
13  Ohio  269  (1844)  ;  Greeley  v.  Smith,  3  Story  (U.  S.)  657  (1845)  ;  Faaners 
&ALMank  v.  Little,  8  W.  &  S.  (Pa.)  207  (1844)  ;  Saltmar.<;h  v.  P.  &  M.  Bank,  14 
ATir668  (1848)  ;  Hightower  v.  Thornton,  8  Ga.  486,  52  Am.  Dec.  412  (1850)  ; 
Carey  v.  Giles,  10  Ga.  9  (1851)  ;  Rmlding  Association  v.  Anderson,  7  Phila. 
(Paj_l26(i868)  ;  National  Bank  v.  Colby,  21  Wall.  (88  U.  S.)  609,  22  L.  ed. 
^7(1^4jn^eifler  v.  Houesdale  &  D.  P.  R.  Co..  i  Pa.  C.  C.  64  (1884)  ; 


CHADSEY  V.  LEWIS  47 

SECTION  2.     REMEDIAL  INTEREST. 

CHADSEY  V.   LEWIS. 

/    i 
/     \ 

Supreme  Court  of  Illinois,  1844. 
6  ///.  I53-" 

Treat,  J. :  This  was  an  action  brought  by  Chadsey,  as  admin- 
istrator of  Ohver,  against  William  Lewis.  The  declaration  was  in 
debt  on  a  bond,  made  b}^  Lewis  to  Oliver,  and  conditioned  for  the 
payment  of  five  hundred  dollars.  The  defendant  pleaded  two  pleas 
in  bar.  First,  payment;  second,  that  Oliver,  in  his  life-time,  made  a 
voluntary  gift  of  the  bond  to  Mary  Lewis  and  Margaret  Lewis,  and 
delivered  the  same  for  their  use  and  benefit,  whereby  the  property 
became  vested  in  them.  The  court  overruled  a  demurrer  to  this  plea, 
and  rendered  judgment  for  the  defendant.  The  administrator  prose- 
cutes a  writ  of  error. 

The  chief  point  in  the  case  is,  as  to  the  validity  of  the  second 
plea.  Without  inquiring  whether  the  facts  alleged  in  the  plea  con- 
stitute such  a  gift  of  the  bond,  as  a  court  of  equity  will  protect  and 
enforce  when  its  aid  is  sought,  it  is  very  clear  that  they  constitute 
no  legal  defense  to  this  action.  This  is  an  action  at  law,  and  it  is 
only  necessary  to  ascertain  who  has  the  legal  interest  in  the  bond. 
The  demurrer  only  admits  such  facts  as  are  well  pleaded.  The  plea 
does  not  allege  an  assignment  of  the  bond.  Under  our  statute,  the 
legal  interest  can  only  be  transferred  by  indorsement  in  writing.^" 
A  mere  delivery  does  not  pass  such  an  interest.  An  action  can  only 
be  maintained  in  the  name  of  the  person  who  has  the  legal  interest. 
Kyle  V.  Thompson,  2  Scam.  432;  Campbell  v.  Humphries,  2  Scam. 

478- 

The  defendant  failing  to  allege  an  assignment  of  the  bond,  the 
inference  is  unavoidable,  that  there  was  none,  and  that  Oliver  never 
parted  with  the  legal  interest.  At  his  decease,  as  a  matter  of  course, 
that  "interest  descended  to  his  personal  representative,  in  Vi-hose 
name  alone  an  action  must  be  brought  to  recover  the  money.  Chad- 

American  Ex.  Bank  v.  Mitchell,  179  111.  App.  612  (1913)-  "But  courts  of 
equity  regard  a  business  corporation  as  holding  the  legal  title  to  its  prop- 
erty in  trust  for  its  stockholders  and  creditors.  Equity  treats  its  property 
as  appropriated  and  devoted  to  certain  purposes  to  which  it  is  to  be  applied, 
though  the  existence  of  the  corporation  itself  is  terminated  and  legal  reme- 
dies against  it  are  extinguished."  Nelson  v.  Hubbard,  96  Ala.  238,  li  So. 
428,  17  L.  R.  A.  375  (1891)  ;  Mumma  v.  Potomac  Co.,  8  Pet.  (U.  S.)  281,  8 
L.  ed.  945  (1834)  ;  Thornton  v.  Marginal  Freight  Co.,  123  Mass.  32  (1877)  > 
Broughton  V.  Pensacola,  93  U.  S.  266,  23  L.  ed.  896  (1876)  ;  Kelly  v.  Rochelle, 
93  S.  W.  164  (Tex.  1906).  By  statute  the  legal  existence  of  a  corporation  is 
frequently  extended  for  the  purpose  of  winding  up  its  affairs.  Lindeman  v. 
Rusk,  125  Wis.  310,  104  N.  W.  119  (1905)  ;  Castle's  Admr.  v.  Acrogen  Coal 
Co.,  145  Ky.  591  (1911)  ;  Myers  v.  Montgomery,  130  N.  Y.  S.  133  (1911); 
Harris-Woodbury  Co.  v.  Coffin,  179  Fed.  257  (aflfd.  187  Fed.  1005)  (1910)  ; 
Newhall  v.  Western  Zinc  Mining  Co.,  164  Cal.  380  (1912)  ;  Brandon  v.  Ump- 
qua  L.  Co.,  166  Cal.  322  (1913). 

"  The  statement  of  facts  and  arguments  of  counsel  are  omitted. 

^''  See  4  111.  Stat.  Ann.  4363,  §  7621  ;  2  Kent's  Comm.  439. 


48  PARTIES 

sey,  in  whom  the  legal  interest  is  thus  vested,  institutes  an  action  on 
the  bond,  and  the  obligor  does  not  deny  that  interest,  but  insists  as  a 
;  defense  that  third  persons  have  an  equitable  interest  in  the  obliga- 
[  tion.  Is  this  any  answer  in  law  to  the  action  ?  This  question  was, 
in  principle,  settled  by  this  court,  in  the  case  of  McHcnry  v.  Ridge- 
lew  2  Scam.  309.  In  that  case,  an  action  was  brought  in  the  name  of 
Ridgeley,  on  a  note  assigned  to  him  as  cashier.  A  plea  that  the  note 
was  assigned  to  Ridgeley  as  the  agent  of  the  bank;  that  he  never 
had  any  interest  in  the  note ;  and  that  the  legal  and  beneficial  interest 
therein,  w'as  in  the  bank,  was  held  by  the  court  to  constitute  no  de- 
fense to  the  action.  In  that  case,  the  legal  interest  was  in  the  plain- 
tift',  and  the  defendant  was  not  permitted  to  defeat  a  recovery,  by 
showing  that  the  note  was  held  for  the  benefit  of  others.  In  the 
present  case,  the  legal  interest  of  the  administrator  is  not  questioned, 
and  the  only  defense  interposed  by  the  obligor  is,  that  third  persons 
are  beneficially  interested  in  the  bond.  This  is  no  reason  why  he 
should  not  perform  his  obligation.  The  suit  is  in  the  name  of  the 
proper  person,  and  it  makes  no  difference  to  the  defendant  for  whose 
benefit  it  is  brought.  As  was  said  in  the  case  of  McHenry  v.  Ridge- 
ley, the  court  will  not  inquire  whether  the  plaintiff  sues  for  himself, 
or  as  trustee  for  some  other  person.  It  is  sufficient  that  he  has  the 
legal  interest.  For  aught  the  record  shows,  this  suit  may  be  prose- 
cuted for  the  benefit  of  the  donees  of  the  bond.  Whether  it  is  or  not, 
the  rights  of  the  defendant  are  not  to  be  affected  by  the  recovery. 
jAdmitting  the  truth  of  the  plea  to  the  fullest  extent,  it  show^s  but 
[this,  that  the  plaintiff  has  the  legal,  and  the  donees  the  equitable 
jesfate.  Tn  a  court  of  law,  which  of  these  interests  is  to  prevail? 
'3Tost  assuredly  the  legal  one.  This  view  is  conclusive  on  the  de- 
fendant. The  court  of  law,  having  jurisdiction  of  the  case,  should 
proceed  to  try  it  according  to  its  rules,  leaving  to  those  claiming  the 
beneficial  interest  in  the  subject-matter  to  invoke  the  aid  of  equity. 
If  the  Lewises  are  in  fact  the  donees  of  the  bond,  the  administrator 
holds  it  as  trustee  for  them,  and  if  he  refuses  to  account  to  them,  a 
court  of  equity  will  compel  him  to  execute  the  trust.  It  may  be  a 
serious  question  whether  there  w-as  a  valid  gift  of  the  bond,  impor- 
tant alike  to  the  interests  of  the  estate,  and  the  donees.  That  ques- 
tion ought  certainly  not  to  be  determined  in  this  collateral  manner, 
in  a  proceeding  to  which  the  donees  are  not  parties,  and,  of  course, 
not  bound  by  any  adjudication  v/hich  may  be  made.  In  this  con- 
flict between  the  legal  and  the  equitable  interests,  a  court  of  equity 
is  peculiarly  the  appropriate  tribunal  to  adjust  the  rights  of  the 
parties.  The  defendant  is  not  interested  in  that  adjustment,  it  being 
a  matter  exclusively  between  the  administrator  and  the  donees. 

We  think,  therefore,  that  the  circuit  court  erred  in  deciding  the 
plea  to  be  valid,  and  its  judgment  is  reversed  with  costs,  and  the 
cause  remanded  for  further  proceedings,  consistent  with  this 
opinion.-^ 

Judgment  reversed. 

^  See  also,  Bauerman  v.  Radcnins,  7  Term  Rep.  663  (1798)  ;  Skinner  v. 
Somes,  14  Mass.  107  (1817)  ;  Matlack  v.  Henderson,  13  N.  J.  L.  263  (1832)  ; 
Garlands  v.  Jacobs,  2  Leigh  (Va.)  651  (1830)  ;  Hcald  v.  IVarren,  22  Vt.  409 


■  -S^' 


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c-i^^  a-««^4.^ 


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CLARKSON   V.   DODDRIDGE  49 

CLARKSONS  v.  DODDRIDGE. 

Supreme  Court  of  Appeals  of  Virginia,  1857. 

14  Gratt.   (Va.)  42. 

This  is  an  action  of  debt  brought  in  the  name  of  Doddridge  and 
Miller  against  D.  J.  W.  and  John  N.  Clarkson,  on  three  bonds  for 
the  sum  of  four  thousand  seven  hundred  and  twenty  dollars  and 
sixty-six,  and  two-thirds  cents  each,  dated  December  25,  1851,  and 
payable  nine,  eighteen  and  twenty-four  months  after  date.  The 
obligees  in  whose  names  the  action  is  brought,  are  styled  "commis- 
sioners" in  the  bonds;  and  the  said  sum  of  money  is  therein  de- 
scribed, respectively  as  the  "  'first,'  'second'  and  'third'  payment  on 
salt  property  of  the  late  Charles  G.  Reynolds,  sold  to  D.  J.  W.  Clark- 
son  this  day."  The  defendants  tendered  a  special  plea  in  bar,  aver- 
ing,  in  effect,  therein,  that  the  said  bonds  were  executed  to  the  plain- 
tiffs as  commissioners  appointed  in  a  chancery  suit  to  sell  certain 
lands;  that  before  the  said  action  was  commenced,  the  said  plain- 
tiffs Avere  superseded  by  the  appointment  of  other  commissioners  in 
the  said  suit,  to  wit,  Quarrier  and  Gillison;  and  that  thereby  the 
right  of  action  on  the  said  bonds  was  taken  from  the  said  plaintiffs, 
and  vested  and  now  remains  in  said  Quarrier  and  Gillison.  To  this 
plea  the  plaintiffs  objected;  and  the  objection  was  sustained  by  the 
court;  "being  of  opinion  that  the  plea  aforesaid  does  not  present  a 
good  and  sufficient  bar  to  the  action  brought  in  this  case  in  the  name 
of  Doddridge  and  Miller,  to  recover  the  sums  secured  to  be  paid  by 
the  several  writings  obligatory  upon  which  it  is  founded;  and  that 
the  present  commissioners  have  a  right  to  sue  upon  said  bonds  in  the 
name  of  said  Miller  and  Doddridge."  To  this  opinion  the  defend- 
ants excepted.  Judgment  was  rendered  for  the  plaintiff  for  debt, 
interest  and  costs.  "That  judgment  is  now  before  this  court  for  revi- 
sion on  a  writ  of  supersedeas.-- 

MoNCURE,  J. :  The  only  error  assigned  in  the  judgment  is  in  the 
rejection  of  the  special  plea.  Did  the  court  err  in  rejecting  it?  Was 
the  action  properly  brought  in  the  names  of  the  commissioners  to 
whom  the  bonds  were  payable  ?  Or  ought  it  to  have  been  brought  in 
the  names  of  the  new  and  substituted  commissioners  ? 

It  is  a  general  rule,  that  an  action  on  a  contract  must  be  brought 
in  the  name  of  the  party  in  whom  the  legal  interest  in  such  contract 
^iJ'vest^d.  The  legislature  alone  has  power  to  make  an  exception  to 
this  rule. 

In  the  case  under  consideration,  the  bonds  are  payable  to  Miller 
and  Doddridge,  the  old  commissioners,  in  whom,  therefore,  by  the 

(1850);  Bentley  v.  Standard  Fire  Insurance  Co.,  40  W.  Va.  729  (1895); 
Martel  v.  Desjardin,  93  Maine  413,  45  Atl.  522  (1899)  ;  Sentinel  Printing  Co. 
y,  Long_,^  Pa.  Super.  Ct.  608  (iqo.t)  :  Hozves  v.  Sco'ti,  22^  ra.  7  (,  1909;  ; 
Gilra;y  v.  MetropoTitan  N.  Bank,  113  IW.  App.  485  (1904)  ;  Dicey  on  Parties 
(2d  ed.)  68;  i  Chitty  on  Pleading  (7th  ed.)  17. 

"  The  statement  o£  facts  is  from  the  opinion  of  the  court,  part  of  which 
is  omitted. 

4 — Civ  Proc. 


50  .PARTIES 

very  terms  of  the  bonds,  and  according  to  the  general  rule  of  law 
before  stated,  the  legal  interest  in,  and  right  of  action  on,  the  bonds 
were  vested.  There  is  no  law  in  existence  which  divests  this  legal 
interest  and  right  of  action.  The  court  of  chancery,  it  is  true,  was 
authorized  by  law  to  substitute  new,  in  place  of  tlie  old,  commis- 
sioners. But  the  effect  of  such  substitution  was  not  to  transfer  the 
legal  interest  in  the  bonds  from  the  old  to  the  new  commissioners. 
It  only  authorized  the  new  commissioners,  upon  giving  the  security 
^required  by  law,  to  collect  the  bonds;  and  to  bring  suit,  if  necessary 
'for  the  recovery  thereof,  in  the  names  of  the  old  commissioners. 
The  right  of  the  new  commissioners  to  receive  the  money,  does  not 
imply  a  right  to  bring  an  action  therefor  in  their  own  names.  A  per- 
son may  have  a  right  to  receive  money,  without  any  corresponding 
right  to  bring  an  action  for  it  in  his  own  name.  This  happens  when- 
ever a  chose  in  action,  not  negotiable  by  the  law  merchant,  and  not 
coming  under  the  provisions  in  the  Code,  ch.  144,  §  14,  is  assigned.^^ 
Tlie  assignee  has  a  right  to  receive  the  money,  but  not  to  bring  an 
action  therefor  in  his  own  name.  He  has,  however,  an  ample  rem- 
edy. He  has  a  right  to  bring  an  action  at  law  in  the  name  of  his 
assignor ;  and  he  will  be  regarded,  even  by  a  court  of  law,  as  the 
substantial  plaintiff  in  the  action.  The  court  will  protect  his  rights, 
and  will  not  permit  the  nominal  plaintiff  to  receive  the  money,  nor  to 
release  the  debt,  nor  to  dismiss  the  action.  The  same  principle  ap- 
plies to  this  case.  The  circuit  court  was  therefore  right  in  saying 
that  the  present  commissioners  have  a  right  to  sue  upon  the  bonds 
in  die  name  of  Miller  and  Doddridge,  the  obligees. 

But  it  was  argued,  that  even  if  they  had  a  right  to  bring  such  a 
suit,  it  ought  to  appear  that  the  suit  was  brought  by  them  or  for 
their  use ;  and  that  as  the  declaration  does  not  show  that  the  suit  was 
so  brought,  the  fact,  if  it  had  been  so,  should  have  been  replied  to  the 
plea.  It  is  usual,  when  an  action  is  brought  in  the  name  of  one 
person  for  the  use  of  another,  to  state  the  fact  in  the  body  of  the 
declaration,  or  by  an  endorsement  thereon  or  on  the  w^rit.  And  it 
is  useful  and  convenient  to  do  so,  to  give  notice  to  the  defendant  of 
the  right  of  the  substantial  plaintiff,  and  to  enable  the  court  to 
protect  them  by  its  orders.  But  this  is  not  necessary.^*  The  state- 
ment is  no  material  part  of  llie  pleadings.  The  cause  of  action  is 
complete  without  it.  It  was,  therefore,  no  bar  to  the  action  in  this 
case  that  new  commissioners  had  been  substituted  to  the  place  of  the 
plaintiffs,  notwithstanding  it  may  not  appear  on  the  record  that  the 
suit  was  brought  by  the  former,  or  for  their  use.  The  defendants 
are  in  no  danger  of  being  compelled  to  pay  the  money  into  the  wrong 
hands.    They  have  an  ample  remedy  to  prevent  that ;  but  not  by  a 


^Skinner  v.  Somes,  14  Mass.  107   (1817)  ;  Pierce  v.   Talbot,  213  Mass. 

330  (1913)- 

"Accord:  Reigart  v.  Ellmaker,  6  S.  &  R.  CPa.")  44  (1820)  ;  American 
Mfg.  Co.  V.  Morgan  ^7X70^2$  Pa.  Super.  Ct.  I76_(i904)  ;  Wey  v.  Dooley, 
134  Til.  App7  244  (1967)  ;  Uowesv.  Scott,  224  Pa.  St.  7  (1909X;  Kelly  v. 
Greany,  216  Mass.  296  (1914).  The  holder  of  the  legal  title  is  called  the 
"legal",  or,  "nominal"  or  "record"  plaintiff;  the  beneficial  owner  the  "use", 
or,  the  "equitable"  or  the  "real"  plaintiff.   30  Cjx.  37. 


CLARKSON  V.  DODDRIDGE  $1 

plea  in  bar  of  the  action.  Their  remedy  is  by  motion.  If  they 
really  apprehend  that  the  action  vv^as  not  brought  by  or  for  the  use 
of  the  new  commissioners,  and  that  the  old  commissioners  are  fraud- 
ulently attempting  to  recover  and  collect  the  money  for  their  own 
use,  they  can,  by  motion,  obtain  a  rule  requiring  the  new  commis- 
sioners to  avow  and  prosecute,  or  to  disavow  and  dismiss  the  action. 
And  the  court,  if  it  have  cause  to  suspect  any  such  thing,  may  and 
ought,  ex  mero  motu,  to  award  such  a  rule.  The  action  was  no  doubt 
brought  by  and  for  the  use  of  the  new  commissioners.  The  fact  is 
plainly  inferable  from  the  opinion  of  the  court  expressed  in  the  bill 
of  exceptions.  It  also  appears,  from  an  exhibit  produced  and  read 
by  the  defendants  in  connection  with  their  plea,  that  the  new  com- 
missioners were  appointed  for  the  very  purpose  of  bringing  an 
action  on  the  bonds.  The  action  was  in  fact  brought  shortly  there- 
after. The  attorneys  who  brought  it,  and  the  new  commissioners, 
bear  the  same  surnames  (Ouarrier  and  Gillison)  and  may  be  the 
same  persons. 

I  am  of  opinion  that  there  is  no  error  in  the  judgment,  and  that 
it  be  affirmed.^^ 


=^  Winch  V.  Kceley,  i  Term  Rep.  619  (1787)  ;  Brandt  v.  Heatig,  2  Moore 
184  (1818)  ;  Smith  v.  Wooding,  20  Ala.  324  (1852)  ;  Foss  v.  Lowell  Five  Cents 
Sav.  Bank,  in  Mass.  285  (1873);  State  v.  Layman,  46  Md.  190  (1876); 
Sumer  v.  Sleeth,  87  111..  500  (1877)  ;  Richmond  &  D.  R.  Co.  v.  Bedell,  88  Ga. 
591   (1891)  ;  Bohanan  v.  Thomas,  49  So.  308  (Ala.  1909). 

At  the  common  law  the  nominal  plaintiff  was  looked  to  for  costs,  Evans 
V.  Rees,  1  Gale  &  Davidson's  Reports,  579  (1841)  ;  hence  the  use  plaintiff 
could  be  compelled  to  indemnify  the  nominal  plaintiff.  Wehb  v.  Steele,  13 
N.  H.  230  (1842)  ;  Henderson  v.  Webb,  8  111.  340  (1846).  Statutes  have  gen- 
erally imposed  costs  on  the  beneficial  party.  New  York  Code  Civil  Procedure, 
§  3247,  Slanson  v.  Watkins,  95  N.  Y.  639  (1884);  see  note  to  62  Lawyers 
Reports,  Annotated  617,  although  the  liability  may  be  cumulative,  Riiddell 
V.  Green,  104  Md.  371  (1906)  ;  Giffordv^Gifford,  27  Pa,^202  (1856),  A  suit 
can  not  be  maintained  by  a  legal ■"f)laintifragainst  the  objection  of  a  use 
plaintiff  having  the  entire  beneficial  interest.  S^rigss^^N.  Serf  ass  15  Penna. 
pis.  Rep.  748  (1906)  ;  but  upon  proper  indemnity  furnished,  the"beneficial 
party  may  use  the  name  of  the  person  having  the  legal  title  even  against  his 
will.  Ro'ckwood  V.  Broivn,  67  Mass.  261  (1854);  Shanks  v.  White,  36  Ga. 
432  (1867)  ;  Foss  V.  Lozvcll  Bank,  in  Mass.  285  (1873)  ;  Walker  v.  Brooks, 
125  Mass.  241  (1878)  ;  Coffev  v.  White.  14  W.  N.  C.  (Pa.)  108  (i883-X.  The 
device  of  suing  to  use  will  not  be  permitted  to  impair  the  rights  of  the  de- 
fendant, Harriman  v.  Hill,  14  Maine  127  (1837)  ;  Stone  v.  Hubbard,  7  Cush. 
(Mass.)  595  (1851).  So  also  the  use  plaintiff  will  be  protected  from  defenses 
arising  out  of  acts  of  the  plaintiff  after  notice  of  the  assignment;  Little  field 
v.  Story,  3  Johns.  (N.  Y.)  425  (1808)  ;  Wagner  v.  National  Life  Insurance 
Co.,  90  Fed.  394  (1898),  at  page  401.  Thus  a  retraxit  entered  by  the  nom- 
inal plaintiff  without  the  consent  of  the  beneficial  owner  is  unavailing. 
Sloan  V.  Summers,  14  N.  J.  L.  509  (1834).  But  the  defendant  may  avail  him- 
self of  all  prior  defenses  against  the  assignor.  Craighead  v.  Swarts.  219  Pa. 
149  (1907).  Partial  assignments  were  not  within  the  rule  permitting  assign- 
ees to  sue  at  common  law,  Mandcrville  v.  Welch,  5  Wheat.  (U.  S.)  277 
(1820)  ;  Fairaricves  v.  Lehigh  N.  Co..  2  Phila.  CPa.)  182  (i8=;6)  ;  Burnett  v. 
Crandall,  63  Mo.  410  (1876)  ;  Thiel  v.  Lumber  Company,  137  Wis.  272  (1908); 
in  equity  see  James  v.  Nezvton,  142  Mass.  366  (1886),  and  under  the  judi- 
cature act  of  1873  see  Foster  v.  Baker,  L.  R.  (1910),  2  K.  B.  Div.  636.  The 
right  of  an  assignee  of  a  chose  in  action  to  sue  at  law  in  the  name  of  his 
assignor  has  been  said  to  afford  an  adequate  remedy  so  as  to  preclude  a 


;i 


S2  PARTIES 


KITCHINS   V.   HARRALL. 

Supreme  Court  of  Mississippi,  1877. 

54  Miss.  474. 

Appeal  frorn_th£.Xllianr.eiyCQMf4;-Qf  Tipi)ah  County.  Hon.  A.  B. 
Fly,  chancellor. 

This  suit  was  to  subject  land,  a  bond  for  title  to  which  had  been 
given  by  Harrall  to  Kitchins,  to  the  payment  of  notes  for  the  pur- 
chase money,  executed  by  Kitchins  to  Harrall,  and  by  him  indorsed 
to  Pryor  Scally  and  William  Pollard. 

There  was  a  decree  for  the  plaintiff  and  Kitchins,  the  defendant, 
appealed.-*^ 

Campbell,  J. :  Harrall  exhibited  this  bill  for  the  use  of  Pryor 
Scally  and  William  Pollard.  Harrall  is  the  only  complainant,  and 
complains  for  the  use  and  benefit  of  the  persons  named,  who  are 
not  made  parties  to  the  bill.  The  prayer  of  the  bill  is  to  decree  pay- 
ment to  the  complainant  for  the  use  of  the  parlies  named.  We  are 
not  aware  of  any  authority  for  this  new  mode  of  instituting  a  suit 
Tn  chancer}-.-'"     Courts  oi  law  permit  the  holder  of  the  legal  title,  in 

suit  in  equity.   New  York  G.  Co.  v.  Memphis  W.  Co.,  107  U.  S.  205  (1882)  ; 
Walker  v.  Brooks,  125  Alass.  241   (1878). 

In  England  the  judicature  act  of  1873,  §§  25,  26,  provides  that  an  abso- 
lute assignment  by  writing  under  the  hand  of  the  assignor  of  any  debt  or 
legal  chose  in  action  of  which  express  notice  is  given  in  writing  to  the 
debtor,  shall  be  effectual  in  law  to  pass  the  legal  right  to  such  debt,  subject 
to  prior  equities,  and  all  legal  remedies  for  the  same.  If  an  assignment  does 
not  come  within  this  section  it  may  be  enforceable  as  an  equitable  assign- 
ment, and  one  seeking  to  recover  on  an  equitable  title  must  make  the  holder 
of  the  legal  title  a  party,  Allen  v.  Woods,  68  L.  T.  (N.  S.)  143  (1893); 
Ba-ci'den's  Patents  Syndicate  v.  Smith,  L.  R.  (1904)  2  Ch.  Div.  86.  An  appli- 
cation under  the  rules  of  court  (Order  16,  rule  2)  to  add  the  name  of  the 
assignor  as  plaintiff  will  only  be  granted  on  proof  of  his  consent  or  that  he 
has  been  notified  and  all  the  terms  necessary  for  his  protection  from  liability 
offered  to  him.    Tiirquand  v.  Fcaron,  L.  R.  (1879),  4  Q.  B.  Div.  280. 

*'  The  arguments  of  counsel  and  part  of  the  opinion  of  the  court  are 
omitted. 

^Accord:  Hammond  v.  Messenger,  9  Sim.  327  (1838)  ;  Frye  v.  Bank  of 
Illinois,  10  111.  2,22  (1848);  5d^eri  v._S:£iZi^i^j_Er£wst.  (Pa.)^ 53 1  (1868); 
Walker  v.  Brooks,  125  Mass.  241  (1878)  ;  Hart  v.  O'Brien,  16  VV.  Va.  791 
(1879);  Hayward  v.  Andrews,  106  U.  S.  672,  27  L.  ed.  271  (1882);  New 
York  Guar.  Co.  v.  Memphis  Water  Co.,  107  U.  S.  205,  27  L.  ed.  484  (1882)  ; 
Kellam  v.  Sayer,  30  W.  Va.  198,  3  S.  E.  589  (1887). 

(  While  at  law  he  alone  sues  in  whom  is  vested  the  legal  title,  in  equity  a 
person  beneficially  interested  may  and  generally  should  maintain  the  suit  in 
'his  own  name.  Btirlew  v.  Hillman,  16  N.  J.  Eq.  23  (1863);  Olds  v.  Cum- 
mings,  31  111.  188  (1863);  Field  v.  Maghee,  5  Paige  (N.  Y.)  539  (1863); 
Synith  v.  Brittenham,  109  111.  540  (1884)  ;  Fidelity  Co.  v.  Trust  Co.,  143  Fed. 
152  (1906).  But  in  some  instances  the  holder  of  the  legal  title  may  be  per- 
mitted to  sue  alone  in  equity,  as  where  a  trustee  sues  for  all  the  beneficiaries 
in  a  proceeding  that  does  not  affect  his  relations  with  them.  Kerrison  v. 
Stewart,  93  U.  S.  155,  23  L.  ed.  843  (1876)  ;  Ashton  v.  Atlantic  Bank,  85 
Mass.  217  (1861)  ;  Winslow  v.  Minnesota  R.  Co.,  4  Minn.  313  (i860)  ;Taven- 
ner  v.  Barrett,  21  W.  Va.  656  (1883)  ;  Vcttcrlein  v.  Barnes,  124  U.  S.  169, 
31  L.  ed.  400  (1888).  Compare  Tyson  v.  Applegate,  40  N.  J.  Eq.  305  (1885)  ; 
Gibson  v.  Ledwitch,  84  Kans.  505  (1911). 


SHERIDAN  V.   NEW  YORK  53 

certain  cases,  to  sue  for  the  use  of  the  beneficial  owner,  who  is  re- 
garded as  the  real  plaintiff.  TlTisJs__becaAise_the.Jbmefi£i^^ 
can  not  sue  in  a  court  of  law  in  his  o\vn  name;  and,  therefore,  the 
name  of  the  holder  of  the  legal  title  must  appear  as  nominal  plain- 
tiff. There  is  no  reason  for  any  such  rule  in  chancery  courts,  and  it 
has  never  obtained  recognition  by  them,  Coke  said,  Nihil  simiil 
inventum  est  et  perfectwn,  which  is  applicable  to  this  suit. 
Decree  reversed. 

New  York  Code  of  Civil  Procedure. 

§  449.  "Every  action  must  be  prosecuted  in  the  name  of  the  real 
party  in  interest  except  that  an  executor  or  administrator,  a  trustee 
of  an  express  trust,  or  a  person  expressly  authorized  by  statute,  rnay 
sue,  without  joining  with  him  the  person  for  whose  benefit  the  action 
is  prosecuted.  A  person,  with  whom  or  in  whose  name,  a  contract 
is  made  for  the  benefit  of  another  is  a  trustee  of  an  express  trust, 
within  the  meaning  of  this  section."  " 


SHERIDAN  V.  THE  MAYOR,  ALDERMEN  AND  COMMON- 
ALTY OF  THE  CITY  OF  NEW  YORK. 

Court  of  Appeals  of  New  York,  1876. 

68  A^.  Y.  so.'" 

Church,  Ch.  J. :  The  only  question  submitted  to  the  jury  was 
whether Jhe_piaintiff  was  _the  real  ^arty  in  interest.  A  written  assign- 
ment, properly  executed  and  acknowledged  before  a  proper  officer, 
was  produced'  in  terms  transferring  absolutely  for  a  valuable  con- 
sideration the  demand  iiTsmt  from  Morgan  Jones  to  the  plaintiff, 
aiKTproof  was  made  of  the  delivery  thereof  by  the  former  to  the 
latter.  As  to  these  facts  there  was  no  dispute,  nor  could  there  be 
any  dispute  that  the  plaintiff  held  the  legal  title  to  the  demand.  The 
learned  judge  submitted  the  question  to  the  jury  in  this  language: 
"If  you  believe  from  the  evidence  that  the  real  party  in  interest  in 
this  suit  is  Morgan  Jones  and  that  this  is  a  sham  transaction,  then  I 
think  the  plaintiff  should  be  defeated  in  the  action." 

Precisely  what  the  learned  judge  meant  by  a  sham  transaction, 
as  applied  to  the  transfer  of  the  demand,  is  not  very  apparent,  but  I 


^Montana  Code  of  Civil  Procedure,  §  570  (1908),  contains  identical  lan- 
guage. The  provision  that  actions  must  be  prosecuted  in  the  name  of  the 
"real  party  in  interest"  has  been  incorporated  in  the  codes  of  many 
states,  but  with  different  Hmitations.  See  for  examples  the  California  Code 
of  Civil  Procedure,  §  367;  Missouri  Code  Civil  Procedure,  §  540;  Gen- 
eral Code  of  Ohio  (1910),  §  11241;  Washington  Code  of  Civil  Procedure 
(Ballinger's  Statutes),  §  4824;  Oregon  Code  of  Civil  Procedure,  §  27; 
South  Carolina  Code  of  Civil  Procedure,  §  132;  Pomeroy's  Civil  Reme- 
dies (4tli  ed.),  §  62,  p.  87. 

""Arguments  of  counsel  and  part  of  the  opinion  are  omitted.  Reported 
below  in  8  Hun.  (N.  Y.)  424. 


54  TARTIES 

infer  from  this  and  other  parts  of  the  charge  that  he  intended  to 
charge,  that  ahhough  a  legal  title  to  the  claim  was  transferred  to 
the  plaintiff  and  the  assignment  was  valid  as  against  the  assignor, 
^  yet  if  the  jury  believed  that  the  transaction  was  colorable,  that  is, 
that  by  any  private  or  implied  understanding  the  transfer  was  not 
t  intended  as  bona  tide,  or  an  actual  and  real  sale  of  the  demand  as 
/  between  the  parties,  the  plaintiff  could  not  recover.     In  this,  with 
great  respect,  I  think  the  learned  judge  erred.   A  plaintiff  is  the  real 
party  in  interest  under  the  code,  if  he  has  a  vandtrafisfer  as  against 
~tTie  assignor,  and  holds  the  legal  title  to  the  demand.   The  defendant 
has  no  legal  interest  to  inquire  further.    A  payment  to,  or  recovery 
\    by,  an  assignee  occupying  this  position,  is  a  protection  to  the  defend- 
L    ant  against  any  claim  that  can  be  made  by  the  assignor.     In  this 
I  case,  from  the  undisputed  facts,  the  defendant  would  be  protected  if 
it  paid  to  the  assignee  or  if  a  recovery  was  had  against  it  by  him. 
No  question  was  made  and  none  submitted  to  the  jury  as  to  the 
execution  or  delivery  of  the  assignment,  and  conceding  that  the 
1  circumstances  were  such  as  to  justify  the  jury  in  finding  that  it  was 
/  colorable  as  between  the  parties,  yet  that  w^ould  constitute  no  de- 
I   fense  on  the  ground  that  the  plaintiff  was  not  the  real  party  in  inter- 
I   est.     Such  an  inquiry  might  become  material  if  the  rights  of  credit- 
'    ors  were  involved,  or  upon  the  right  of  interposing  some  defense 
or  counterclaim  against  the  assignor.    Nor  is  it  of  any  moment  that 
no  consideration  was  paid  for  the  demand  by  the  assignee.    The 
assignor  could  give  the  demand  to  the  plaintiff,  or  sell  it  to  him  for 
an  inadequate  consideration,  or  without  any  consideration.    It  is 
enough  if  the  plaintiff'  has  the  legal  title  to  the  demand,  and  the 
defendant  would  be  protected  in   a  payment  or  recovery  by  the 
assignee.    It  is  not  a  case  of  mala  fide  possession  which  the  defend- 
ant can  avail  itself  of,  as  if  a  thief  should  bring  an  action  upon  a 
promissory  note  which  he  had  stolen.    These  views  are  well  set- 
tled by  authority.    (44  N.  Y.  231 ;  61  N.  Y.  614;  2/  Barb.  178;  38 
Barb.  579;  29  N.  Y.  554;  15  Wend.  640.) 

As  before  remarked,  there  was  no  question  as  to  the  making 
and  delivery  of  the  assignment,  and  the  remarks  of  the  learned 
judges  at  general  term,  therefore,  as  to  when  and  under  what  cir- 
cumstances a  jury  is  or  is  not  justified  in  finding  contrary  to  the 
evidence  of  one  or  more  witnesses,  has  no  application  to  the  question 
involved  in  this  case,  viz. :  the  bona  fides  as  between  assignor  and 
assignee  of  the  transfer.  Suppose  after  the  trial  of  this  action  the 
assignor  had  commenced  an  action.  The  defendant,  by  proving  the 
making  and  delivery  of  the  assignment  to  the  plaintiff,  could  have 
defeated  the  action  on  the  ground  that  he  was  not  the  party  in  inter- 
est, and  I  apprehend  he  would  not  have  been  permited  to  show  that 
the  transfer  was  not  as  between  them  an  actual  bona  fide  sale,  and 
the  result  might  be  that,  although  the  defendant  justly  owed  the  debt, 
it  would  avoid  liability  because  no  one  had  a  right  to  prosecute.  The 
code  never  anticipated  such  a  result. 
Judgment  reversed.''^ 

*°  Accord:    Hays  v.  Hathorn,  74  N.  Y.  486   (1878);  Friedman  v.  Schiil- 
vian,  46  Misc.   (N.  Y.)    572   (1905);  Manlcy  v.  Park,  68  Kans.  400   (1904) 


TANDY  V.   WAESCH  55 

TANDY  V.  WAESCH. 

Supreme  Court  of  California,  1908. 

154  Cal  108. 

Hensiiaw,  J. :  Plaintiff  sued  to  recover  the  sum  of  one  thou- 
sand dollars,  paid  on  account  of  the  purchase  price  of  a  piece  of  land 
under  contract  with  defendant,  whereby  defendant  agreed  to  convey 
the  land  by  a  title  free  and  clear  of  all  encumbrances.  He  averred 
tliat  defendants'  title  was  encumbered  by  restrictions,  reservations 
and  covenants.^^ 

It  was  alleged  that  a  reasonable  time  had  been  given  to  remove 
these  encumbrances,  and  that  they  had  not  been  removed ;  and,  in- 
deed, upon  the  trial,  it  w^as  conceded  that  they  w^ere  still  in  exist- 
ence. Defendant  pleaded  by  answer  and  cross-complaint,  calling  in 
as  defendants  to  his  cross-complaint,  besides  the  plaintiff  Tandy, 
W.  M.  Garland  and  E.  T.  Ames.  Trial  was  had,  judgment  passed 
for  plaintiff  Tandy,  and  from  that  judgment  and  the  order  of  the 
court  denying  defendant's  motion  for  a  new  trial,  he  appeals.  _ 

His  principal  contention  upon  appeal  seems  to  be  that  as  it  was 
disclosed  and  known  to  him  that  Tandy  was  acting  as  agent,  and 
that  the  defendant  Garland  w^as  principal,  the  action  should  have 
been  brought  by  Garland,  and  can  not  be  maintained  in  the  name 
of  Tandy.  Tandy,  however,  was  a  proper  party  plaintiff.  To  the 
general  rule  laid  down  in  section  367  of  the  Code  of  Civil  Procedure, 
that  every  action  must  be  prosecuted  in  the  name  of  the  real  party 


overruling  Stezvart  v.  Price,  64  Kans.  191  (1902),  annotated  in  64  L.  R.  A. 
581  •  Cassidv  v.  Woodward,  77  Iowa  354  (1889)  ;  Abell  N.  B.  &  Co.  v.  Hiird, 
85  Iowa  559  (1892);  Leon  v.  Building  Assn.,  14  Ariz.  294  (1912).  Contra 
Robbins  v.  Deverill,  20  Wis.  142  (1865)  ;  Bostwick  v.  Bryant,  113  Ind.  448 
(1887);  Hoagland  v.  Van  Etten,  23  Nebr.  462  (1888);  Brown  v.  Ginn,  66 
Ohio  St.  316  (1902);  Guerney  v.  Moore,  131  Mo.  650  (1895);  Sunon  v. 
Trummer,  57  Ore.  153  (1910).  .       ,        ,  r        j 

In  California  "a  trustee  to  whom  a  chose  in  action  has  been  transterred 
for  collection  is,  in  contemplation  of  law,  so  far  the  owner  that  he  may  sue 
on  it  in  his  own  name."  Toby  v.  Oregon  P.  R.  Co.,  99  Cal.  491  (1893)  ;  Cor- 
telyou  V.  Jones,  132  Cal.  131  (1901).  The  amended  code  of  1901,  §  367. 
provided  that  a  person  to  whom  a  cause  of  action  has  been  assigned  merely 
for  collection  was  not  the  real  party  in  interest.  But  this  clause  fell  when 
the  act  adopting  the  amendments  was  held  unconstitutional.  Lewis  v.  Dunne, 
134  Cal.  291   (1901).  ^  1  ,         ,  •  . 

In  some  cases  it  has  been  held,  as  at  common  law,  that  the  assignment 
of  part  of  a  claim  does  not  permit  the  assignee  to  sue  in  his  own  name. 
Smith  V.  Atkinson,  18  Colo.  255  (1893)  Skobis  v.  Ferge,  102  Wis.  122  (1899)  ; 
In  others  the  assignee  mav  sue,  but  the  assignor  ought  to  be  joined.  Cham- 
bers V.  Lancaster^ \to  N.  Y.  342  (1899)  ;  Singleton  v.  O  Blenis,  12$  Ind.  151 
(1890)  ;  Dean  v.  St.  Paul  &  D.  R.  Co.,  53  Minn.  504  (1893). 

In  South  Carolina  it  has  been  said  that  the  code  "has  not  gone  to  the 
extent  of  making  things  legally  assignable  that  were  not  so  before,  but  it 
simply  declares  that  when  a  transfer  or  an  assignment  has  been  made, 
whicli  in  equity  has  the  effect  of  making  the  assignee  the  real  party  in  inter- 
est, that  then  "such  assignee  must  sue."  Cliilds  v.  Alexander,  22  S.  Car.  169 
(1884).   See  also,  Joseph  Dixon  Crucible  Co.  v.  Paul,  167  Fed.  784  (1909)- 

"  Part  of  the  opinion  omitted. 


56  PARTIES 

in  interest,  there  are  eertain  exceptions  spccilied  in  section  369  of  the 
Code  of  Civil  Procedure.  That  section  authorizes  the  trustee  of  an 
express  trust  to  sue  without  joining  the  beneficiary  and  declares  that 
a  person  with  whom,  or  in  whose  name  a  contract  is  made  for  the 
benefit  of  another,  is  a  trustee  of  an  express  trust  within  the  mean- 
ing of  this  section.  The  contract  having  been  made  in  Tandy's  name 
for  the  benefit  of  Garland,  Tandy  thus  became  the  trustee  of  an 
express  trust  and  entitled  to  maintain  tlie  action. 
Judgment  affirmed.^- 


ERVIN  V.  THE  STATE,  EX  REL.  WALLEY. 

Supreme  Court  of  Indiana,  1897. 

150  Ind.  332. 

]\IcCabe,  C.  J. :  The  appellee  sued  the  appellants  to  recover 
money  alleged  to  have  been  lost  by  William  A.  Walley,  the  relator's 
husband,  to  the  appellees  by  betting  on  a  game  called  faro,  under 
§§  6676,  6678  Burns'  Rev.  Stat.  1894  (4951,  4953,  Rev.  Stat.  1881). 
The  complaint  was  'in  five  paragraphs,  and  the  court  overruled  a 
several  demurrer  by  the  defendants  to  each  paragraph  for  want  of 
sufficient  facts,  and  that  the  plaintiff  had  no  capacity  to  sue. 

A  trial  of  the  issues  resulted  in  a  verdict  and  judgment  for 
$5,414.50  over  appellants'  several  and  joint  motions  for  a  new  trial. 
The  court  also  overruled  appellants'  motion  to  modify  the  judgment. 

The  errors  assigned  call  in  question  these  several  rulings,  and 
also  call  in  question  the  sufficiency  of  the  complaint. ^^ 

It  is  contended  that  the  demurrers  ought  to  have  been  sustained 
because  the  action  is  not  prosecuted  in  the  name  of  the  real  party  in 
interest,  namely,  Nellie  A.  Walley,  but  is  prosecuted  in  the  name  of 
the  state.  It  is  conceded  that  the  statute  on  which  the  action  is 
founded  authorizes  the  prosecution  of  the  action  in  the  name  of  the 
state  for  the  benefit  of  the  wife  of  the  loser,  under  certain  circum- 
stances, but  it  is  contended  that  such  statute  was  passed  prior  to  the 
code,  and  that  the  code  makes  a  different  provision  in  relation  thereto, 
and  must  be  deemed  the  last  expression  of  the  legislative  will,  and 
controlling  in  this  respect.  Conceding,  without  deciding,  that  such 
was  the  order  of  passage  of  the  two  statutes,  and  that  the  last  act 
would  have  the  effect  to  modifv  the  first  in  so  far  as  inconsistent 


"Accord:  Considerant  v.  Brisbane,  22  N.  Y.  389  (iS^o)  •,Seymo'.ir  v. 
Smith,  114  N.  Y.  481  (1889)  ;  Citizens  Bank  v.  Corkings,  g.  S.  Dak.  614 
(1897)  ;  Fidelity  &  C.  Co.  v.  Ballard,  105  Ky.  253  (1899)  ;  Leach  v.  Hill,  106 
Iowa  171  (1898)  ;  Davidge  v.  Trust  Co.,  136  App.  Div.  (N.  Y.)  78  (1909)  ; 
Middleton  v.  Wohglemuth,  141  App.  Div.  (N.  Y.)  678  (1910)  ;  Goodfellow  v. 
First  National  Bank,  71  Wash.  554  (1913).  See  also  Mitchell  v.  St.  Mary, 
148  Ind.  Ill  (1897)  ;  Williams  v.  Julapa  Co.,  3  Alaska  222  (1906)  ;  Koch  v. 
Story,  47  Colo.  335  (1910)  ;  Portoghese  v.  Illinois  Surety  Co.,  81  Misc.  (N. 
Y.)  211   (1913)  ;  30  Cyc.  56. 

"  Only  as  much  of  the  opinion  as  relates  to  the  question  of  parties  is 
printed.    The  judgment  was  reversed  on  other  grounds. 


FARNI  V.   TESSON  57 

therewith,  we  do  not  think  that  there  was  any  such  inconsistency. 
Section  251,  Burns'  Rev.  Stat.  1894  (251,  Rev.  Stat.  1881),  pro- 
vides that:  "Every  action  must  be  prosecuted  in  the  name  of  the 
real  party  in  interest,  except  as  otherwise  provided  in  the  next  sec- 
tion." The  next  section  provides  that:  "An  executor,  adminis- 
trator, a  trustee  of  an  express  trust,  or  a  person  expressly  author- 
ized by  statute,  may  sue,  without  joining  with  him  the  person  for 
whose  benefit  the  action  is  prosecuted."  The  state  is  authorized 
by  the  statute  in  question  to  sue  for  the  benefit  of  another,  and  the 
state  is  within  the  meaning  of  the  last  section  of  the  code,  if  the 
word  "person"  as  used  therein,  may  be  held  to  include  the  state. 

Among  the  rules  for  the  construction  of  the  code,  it  is  provided 
in  §  1309,  Burns'  Rev.  Stat.  1894  (1285,  Rev.  Stat.  1881),  that: 
"The  word  'person'  extends  to  bodies  politic  and  corporate."  Web- 
ster defines  the  words  "body  politic"  to  be  "The  collective  body  of 
a  nation  or  state  as  politically  organized,  or  as  exercising  political 
functions ;  also  a  corporation." 

Therefore,  we  hold  that  the  code  does  not  require  tlie  action  to 
be  brought  in  the  name  of  the  real  party  in  interest,  where,  as  here, 
a  person,  the  state,  is  expressly  authorized  by  statute  to  sue  without 
joining  the  person  for  whose  benefit  the  action  is  prosecuted.^* 


\ 


SECTION  3.     JOINDER  OF  PARTIES. 

(a)  Plaintiffs. 

FARNI  V.  TESSON. 

Supreme  Court  of  the  United  States,  1861. 

66  U.  S.  309. 

Error  to  the  Circuit  Court  of  the  United  States  for  the  North- 
ern District  of  Illinois. 

Tesson  &  Dangen  recovered  a  judgment  against  Bontcum  and 
Carrey  in  the  Circuit  Court  of  Peoria  County,  Illinois,  on  the  12th 
of  September,  1857,  for  $8,000.  On  the  same  day  an  execution  was 
issued  directed  to  Woodford  County,  and  a  levy  was  soon  after 
made  on  real  and  personal  property.  Bontcum  and  Carrey  filed  a 
bill  on  the  eqtiity  side  of  the  court  for  an  injunction  to  stop  further 
proceedings  under  the  judgment;  and  the  injunction  was  directed 
to  issue  according  to  the  prayer  of  the  bill,  "upon  the  complainants 
entering  into  bond  in  the  penal  sum  of  sixteen  thousand  dollars  with 
Christian  Farni  and  Peter  Farni,  conditioned  according  to  law." 
A  bond  was  accordingly  executed,  in  which  the  two  Farnis  with 
Bontcum  and  Carrey  were  the  obligors,  and  Tesson,  Dangen,  Tuber, 
Gareshe  and  Miner  the  obligees.    This  bond,  it  was  conceded,  was 


^*  Atkinson  V.  Cawlcy,  112  Ga.  485   (1900);  Swift  v.  Ellsworth,  10  Ind. 
205   (1858). 


58  PARTIES 

not  framed  in  accordance  with  the  order  of  the  court,  but  upon  its 
being  filed  the  injunction  was  issued.  Afterwards  the  plaintiffs,  per- 
ceiving the  insufficiency  of  their  bond,  had  a  new  one  executed,  to 
which  tlie  parties  vv^ere  the  same  as  to  the  former  one;  but  the  con- 
ditions were  different.  In  October,  1858,  the  injunction  was  dis- 
solved, and  after  some  time  the  bill  was  dismissed.  At  December 
term,  1858,  Tesson  brought  suit  on  the  second  injunction  bond 
against  Christian  and  Peter  Farni  in  tlie  Circuit  Court  of  the  United 
States  for  the  Northern  District  of  Illinois.  The  suit  was  brought  in 
his  own  name  as  surviving  partner  of  the  firm  of  Tesson  &  Dangen, 
omitting  as  plaintiffs  the  other  three  obligees  to  whom  the  bond  had 
been  given,  and  making  only  two  of  the  four  obligors  who  executed 
it  defendants.  To  avoid  the  objection  of  nonjoinder  of  the  other 
obligees  the  plaintiff  averred  that  he  was  the  only  one  interested  in 
the  judgment  enjoined;  that  Miner,  one  of  the  obligees,  w^as  the 
sheriff  who  held  the  execution  enjoined,  and  the  other  obligees  were 
merely  the  agents  or  trustees  of  Tesson. 

There  was  a  trial  and  a  verdict,  and  judgment  for  the  plaintiff. 
Before  signing  the  bill  of  exceptions  the  judge  put  on  record  a  writ- 
ten explanation  to  the  effect  that  the  objection  to  the  nonjoinder  of 
the  proper  parties,  though  made  by  the  defendants  on  the  trial,  had 
been  understood  by  the  court  to  have  been  waived,  and  was  only 
pressed  upon  a  motion  made  to  arrest  judgment,  when  it  was  over- 
ruled as  merely  technical.  This  overruled  objection  is  the  only 
matter  in  the  record  to  which  the  opinion  of  the  Supreme  Court  was 
addressed,  and  it  has  seemed  necessary  to  state  only  such  of  the 
facts  as  form  a  necessary  introduction  to  that  opinion.  The  defend- 
ants sued  out  this  writ  of  error.'' 

Grier,  J. :  The  bond  being  set  forth  at  length  in  the  declaration, 
precluded  the  necessity  of  oyer,  but  did  not  relieve  the  pleader  from 
the  mistake  patent  in  his  plea.  He  sues  on  a  several  covenant  to  pay 
a  sum  of  money  to  A,  and  shows  a  covenant  to  pay  A,  B  and  C 
jointly.  If  one  of  the  joint  covenantees  be  dead,  a  suggestion  of 
that  fact  is  sufficient  to  show  a  right  to  sue  in  the  names  of  the  sur- 
vivors. If,  by  the  condition,  the  money  to  be  recovered  be  not  for 
the  joint  benefit  of  all,  the  suggestion  of  that  fact  can  not  alter  the 
obligation ;  but  will  show  only  that,  though  all  the  parties  to  it  should 
join  in  the  suit,  and  show  a  legal  title  to  recover,  the  judgment  will 
be  for  the  use  of  the  party  named  in  the  condition,  and  equitably  en- 
titled to  the  money.  The  true  reason  for  the  course  pursued  by  the 
pleader  in  this  case,  though  not  alleged  in  the  pleading,  was,  perhaps, 
to  give  jurisdiction  to  the  Circuit  Court  of  the  United  States,  by 
omitting  the  names  of  obligees  v/ho  are  citizens  of  Illinois.  But  it  is 
admitted  that  such  a  reason,  even  if  alleged  in  the  pleading,  would 
not  have  cured  the  omission. 

It  is  an  elemental  principle  of  the  common  law,  that  where  a  con- 
tract is  joint  and  not  several,  all  the  joint  obligees  who  are  alive  must 
be  joined  as  plaintiffs,  and  that  the  defendant  can  object  to  a  non- 


"The  statement  of  facts  is  slightly  abridged  and  the  arguments  of  coun- 
sel and  a  portion  of  the  opinion  omitted. 


FARNI  V.  TESSON  59 

joinder  of  plaintiffs,  not  only  by  demurrer,  but  in  arrest  of  judgment 
under  the  plea  of  the  general  issue. 

When  there  are  several  covenants  by  the  obligors,  as,  for  in- 
stance, to  "pay  $300  to  A  and  B,  viz. :  to  A  $ioo,  and  B  $200,"  no 
doubt  each  may  sue  alone  on  his  several  covenant.^®  The  true  rule, 
as  stated  by  Baron  Parke,  is,  that  "a  covenant  may  be  construed  to 
be  joint  or  several,  according  to  the  interests  of  the  parties  appearing 
upon  the  face  of  the  obligation,  if  tlie  v^ords  are  capable  of  such  a 
construction ;  but  it  will  not  be  construed  to  be  several,  by  reason  of 
several  interests,  if  it  be  expressly  joint."  In  this  case,  the  covenant 
is  joint,  and  will  admit  of  no  construction.  The  condition  annexed 
can  not  affect  the  plain  words  of  the  obligation. 

It  has  not  been  denied  on  the  argument  that  such  is  the  estab- 
lished rule  of  the  law  and  such  the  plain  construction  of  tlie  bond; 
but  it  is  insisted,  that  the  court  should  disregard  it  as  merely  a  tech- 
nical rule,  which  does  not  affect  the  merits  of  tlie  controversy.  The 
same  reason  would  require  the  court  to  reject  all  rules  of  pleading. 
These  rules  are  founded  on  sound  reason,  and  long  experience  of 
their  benefits.^'' 


^^  Dicey  on  Parties  (2d  ed.)  112,  and  see  Withers  v.  Bircham,  3  B.  &  C.  254 
(1824)  ;  Emery  v.  Hitchcock,  12  Wend.  (N.  Y.)  156  (1834)  ;  Keightley  v. 
Watson,  3  Exch.  716  (1849)  ;  Capen  v.  Barrows,  67  Mass.  376  (1854)  ;  Atlanta 
R.  Co.  V.  Thomas,  60  Fla.  412,  53  So.  510  (1910). 

''  When  a  contract,  whether  by  specialty  or  parol,  is  made  with  several 
persons,  if  their  legal  interest  is  joint,  they  must,  if  living,  join  in  an  action 
in  form  ex  contractu  for  the  breach  thereof,  i  Chitty  on  Pleading  (2d  ed.)/<^ 
9;  Slingsby's  Case,  5  Co.  i8b  (i597)  ;  Cahell  v.  Vaiighan,  l  Wm.  Saund. 
291  (1669)  ;  Eccleston  v.  Clipsam,  i  Wm.  Saund.  153  (1669)  ;  Vaux  v.  Vatix, 
Style  203  (1649)  ;  Anderson  v.  Martindale,  i  East  497  (1801)  ;  Sweigart  v. 
Berk,  8  S.  &  R-  (Pa.)  308  (1822)  ;  Petrie  v.  Bury,  3  B.  &.  C.  353  T1824)  ; 
yfansel  v.  Morris,  i  Blackf.  (Ind.)  307  (1824)  ;  Halliday  v.  Doggett,  6  Pick. 
(Mass.)  359  (1828)  ;  Ehle  v.  Purdy,  6  Wend.  (N.  Y.)  629  (1831)  ;  Hatsall 
V.  Griffith,  4  T>tw.  487  (1834)  ;  Suy dam's  Admr.  v.  Combs,  15  N.  J.  L.  133 
(1835)  ;  Archer  v.  Bogue,  4  111.  526  (1842)  ;  Wctherell  v.  Langston,  i  Exch. 
634  (1847)  ;  ^larys  v.  Anderson,  24_Pa.  272  (18=;=;)  ;  Phillips  v.  Henshazc,  5 
Cal.  509  (1855);  Calvert  v.  Bradley,  16  How.  (U.  S.)  580,  14  L.  ed.  1066 
(1853)  ;  Snefl  v.  DeLaiid,  43  111.  323  (1867)  ;  Titusv^Railroad,  5  Phila.  (Pa.) 
360  (1864)  ;  Dewey  v.  Carey,  60  Mo.  224  ( 1875  f\~l}d  aster  son  v.  Phinizy,  56 
Ala.  336  (1876)  ;  Seymour  v.  Western  R.  Co.,  106  U.  S.  320,  27  L.  ed.  103 
(1880)  ;  Oshorn  v.  Martha's  Vineyard  Railroad  Co.,  140  Mass.  549  (1886)  ; 
Reynolds'  Admr.  v.  Grier,  7  Houst.  (Del.)  329  (1886)  ;  Sandusky  v.  Oil  Co., 
63  W.  Va.  260  (1907)  ;  International  Hotel  Co.  v.  Flynn,  238  111.  636  (1909)  ; 
Weinfield  v.  Bergner,  114  N.  Y.  S.  284  (1909)  ;  McGaraj^_Ak ej^  22b  Pa.  St.  ^  -ii^u^  PA'^ 
228  (1910)  ;  Silver  v.  Graves,  210  Mass.  26  (i9irn  "        ■ "" 

On  the  death  of  a  joint  promisee  the  cause  of  action  passes  to  the  sur- 
vivors who  must  all  join  in  the  suit,  but  the  personal  representatives  of  the 
deceased  obligee  are  not  joined  as  parties.  Smith  v.  Franklin,  i  Mass.  480 
(1805);  Vanderhenvel  v.  Storrs,  3  Conn.  203  (1819)  ;  Roane  v.  Lafferty,  5 
Ark.  465  (1843)  ;  Jackson  v.  People,  6  Mich.  154  (1858)  ;  Doss  v.  Craig,  i 
Colo.  177  (1869)  ;  Donnell  v.  Manson,  109  Mass.  576  (1872)  ;  Thomas  v. 
Green  County,  159  Fed.  339  (1908).  On  the  death  of  the  last  survivor  the 
right  of  action  passes  to  his  personal  representatives.  Bebee's  admr.  v.  Mil- 
ler, Minor  (Ala.)  364  (1824). 

A  contract  can  not  be  so  framed  at  common  law,  as  to  give  the  prom- 
isees the  right  to  sue  on  it  both  jointly  and  separately.  Eveleth  v.  Sawyer,  96 
Maine  227,  52  Atl.  639  (1902);  Bradburne  v.  Bot field,  14  M.  &  W.  559 
(1845)  ;  Dicey  on  Parties  (2d  ed.)  iii. 


6o  PARTIES 

It  is  no  wrong  or  hardship  to  suitors  who  come  to  the  courts  for 
a  remedy,  to  be  required  to  do  it  in  the  mode  estabhshed  by  the  law. 
State  legislatures  may  substitute,  by  codes,  the  whims  of  sciolists 
and  inventors  for  the  experience  and  wisdom  of  ages ;  but  the  suc- 
cess of  these  experiments  is  not  such  as  to  allure  the  court  to  fol- 
low their  example.  If  any  one  should  be  curious  on  this  subject,  the 
cases  of  Random  v.  Tohy  (ii  How.  517),  of  Bennet  v.  Butterworth 
(11  How.  667),  of  McFaul  v.  Ramsey  (20  How.  523),  and  Green  v. 
Custard  (23  How.  484),  may  be  consulted. 

The  judgment  of  the  circuit  court  is  therefore  reversed,  with 
costs. 


JOHN  MOORE  V.  A.  C.  TERHUNE.  -^ 

Appellate  Court  of  Illinois,  Fourth  District,  191  i. 

161  ///.  App.  155. 

Duncan,  J. :  This  was  an  appeal  from  a  justice  of  the  peace 
court,  and  on  a  trial  before  the  county  court  without  a  jury,  judg- 
ment was  rendered  in  favor  of  defendants  in  error  and  against 
A.  C.  Terhune,  plaintiff  in  error,  for  $12  as  damages  and  for  $15 
as  attorney  fees  and  for  costs  of  suit. 

The  record  shows  that  John  Moore  and  Charley  Cockrum  be- 
gan this  suit  jointly  against  the  defendant  to  recover  for  wages  due 
them  on  an  alleged  contract  to  plaster  a  house  for  plaintiff  in  error. 
Before  the  trial  in  the  county  court  Charley  Cockrum  died,  and  his 
death  being  suggested  on  the  record,  B.  R.  Cockrum,  as  his  admin- 
istrator, was  substituted  as  party  plaintiff,  and  the  suit  proceeded  to 
judgment  with  Moore  and  said  administrator  as  joint  plaintiffs. 

The  theory  for  joining  Moore  and  Cockrum  as  plaintiffs  seems 
to  have  been  grounded  on  the  supposition  that  they  were  partners  in 
this  contract  of  employment.  The  evidence  for  plaintiffs  only  tends 
to  prove  that  Moore  and  Cockrum  were  each  separately  hired  by 
the  defendant  at  $1.50  per  day  and  that  they  worked  four  days  each. 
No  joint  interest  of  any  kind  in  the  $12,  for  which  judgment  was 
rendered,  is  shown  by  this  record.  The  only  evidence  tending  to 
show  a  joint  right  to  sue  is  one  statement  of  Mr.  Moore  in  his  evi- 
dence that  "We  were  sorter  partners."  This  was  stated  in  answer 
to  the  court's  question :  "Were  you  and  Mr.  Cockrum  partners  in 
this  w^ork?"  All  the  other  evidence  as  to  their  employments  shows 
separate  contracts,  and  that  there  was  no  partnership  between  them. 
It  is  elementary  that  an  action  at  law  can  only  be  maintained  by  the 
party  or  parties  in  whom  the  legal  title  exists,  and  no  party  should 
be  joined  as  plaintiff  who  has  not  a  joint  interest  with  the  other 
plaintiffs  in  the  subject  of  litigation  in  actions  ex  contractu.  Dix  v- 
Mercantile  Ins.  Co.,  2.2  111.  272;  Frye  v.  Bank  of  III,  5  Gilm.  332. 
If  they  had  been  partners,  on  the  deatli  of  Cockrum,  Moore,  the  sur- 
viving partner,  would  have  taken  the  exclusive  title  to  this  debt  and 
all  other  assets  for  the  payment  of  partnership  debts,  and  the  right 


I  MC  NULTY  V.  o'dONNELL  6i 

to  sue  for  same  would  have  devolved  upon  him.  Miller  v.  Jones,  39 
111.  54;  Finnegan  v.  Allen,  60  111.  App.  354. 

It  is  clear  that  if  defendants  in  error  have  any  right  of  action 
against  the  plaintiff  in  error,  they  must  maintain  separate  suits 
against  him.  For  the  errors  indicated  in  the  foregoing,  the  judg- 
ment is  reversed  and  the  cause  remanded. 

Reversed  and  remanded. ^^ 


McNULTY  V.  O'DONNELL.  .^ 

Superior  Court  of  Pennsylvania,  1905. 
27  Superior  Court  Reports  93. 

Appeal,  No.  184,  Oct.  T.,  1904,  by  defendant,  from  order  of 
C.  P.  Potter  Co.,  June  T.,  1903,  No.  284,  refusing  motion  in  arrest 
of  judgment  in  case  of  Mike  McNulty  and  Thomas  Moran  for  use 
of  Mike  McNulty  and  John  Mawn  for  use  of  Mike  McNulty  i. 
Thomas  O'Donnell. 

Porter,  J. :  The  record  clearly  establishes  that  the  beneficial 
plaintiff,  McNulty,  seeks  to  recover  in  a  single  action,  brought  in 
the  name  of  three  legal  plaintiffs,  the  damages  alleged  to  have  arisen 
from  the  nonperformance  of  three  distinct  and  independent  con- 
tracts, each  one  of  which  was  entered  into  by  the  defendant  with  one 
of  the  legal  plaintiffs,  individually  and  severally.  The  defendant 
had  entered  into  three  several  contracts  for  the  purchase  of  apples 
from  McNulty,  T.  L.  Moran  and  John  Mawn,  respectively,  which 
contracts  were  wholly  disconnected,  the  respective  vendors  being 
interested  only  in  the  contract  for  the  sale  of  his  own  apples.  After 
the  alleged  default  of  the  defendant,  Moran  and  Mawn,  respectively, 
assigned  tlieir  claims  to  McNulty.  The  assignment  of  the  personal  0 
contracts  by  Moran  and  Mawn,  respectWet}%  *did  not  ^vest  in  theQ 
plaintiff"  the  ri.!^ht  to  proceed  for  a  nonperformance  of  those  con- 
tracts by  an  action  in  his  own  name,  lie  must  sue  in  that  of  his 
j^:']<^nor:. .Cimiuiings  v.  Lynn,  1  Dallas  444;  Guthrie  v.  White,  i 
Dallas  26S;  Robertson  v.  keed,  47  Pa.  115;  Chitty's  Pleading,  vol.- 


*' Accord:  Smith  and  Taylor  v.  Hunt,  2  Chitty  142  (1818).  Action  for 
work  and  labor.  The  defendant,  a  carrier,  engaged  the  two  plaintiffs  to 
assist  him  with  their  horses.  Each  had  three  horses  and  the  six  drew  the 
wagon.  Nonsuit.  Brand  v.  Boulcott,  3  B.  &  P.  235  (1802)  ;  Hall  v.  Leigh,  8 
Cranch  (U.  S.)  50,  3  L.  ed.  484  (1814)  ;  Withers  v.  Bircham,  3  B.  &  C.  254 
(1824)  ;  Gould  V.  Gould,  6  Wend.  (N.  Y.)  263  (1830)  ;  Carter  v.  Carter,  31 
Mass.  424  (1833)  ;  Seaton  v.  Booth,  4  Ad.  &  El.  528  (1836)  ;  Mvtinaer  v. 
Spritn^e^',  3  W.  &  S.^^o5_  (i8zi2')  ;  Hinman  v.  Hapgood,  i  Den.  (N.  Y.)  188 
(1845);  Ford  V.  Bronaugh,  11  B.  Mon.  (Ky.)  14  (1850);  Cleaves  v.  Lord, 
6g  Mass.  66  (1854)  ;  Masters  v.  Freeman,  17  Ohio  St.  323  (1867)  ;  Germania 
Fire  Ins.  Co.  v.  Hawks,  55  Ga.  674  (1876)  ;  Woodward  v.  Sherman,  52  N.  H. 
131  (1872);  Mining  Co.  v.  Bruce,  4  Colo.  293  (1878);  Cofran  v.  Shepard, 
148  Mass.  582,  20  N.  E.  181  (1889);  Starrett  v.  Gault,  165  111.  99  (1897); 
Mcintosh  V.  Zaring,  150  Ind.  301,  49  N.  E.  164  (1897)  ;  Brady  v.  Koonts,  145 
111.  App.  582  (1908)  ;  Atlanta  &  S.  A.  R.  Co.  v.  Thomas,  60  Fla.  412,  53  So. 
510  (1910). 


6-  PARTIES 

I,  ch.  I.  The  plaintiff  recognized  this  rule,  and  as  a  result  we  have 
in  this  case  three  le.ti^al  plaintiffs:  McNulty  in  his  own  right,  Moran 
to  the  use  of  McNulty  and  Mawn  to  the  use  of  McNulty.  The 
legal  plaintiff's  had  no  joint  right  under  any  one  of  the  contracts. 
Moran  and  Mawn  could  not  have  brought  a  joint  action  against  the 
defendants  upon  the  contracts  which  he  had  entered  into  with  them 
severally.  And  what  they  could  not  have  done  prior  to  the  assign- 
ment can  not  be  done  afterwards  by  their  assignee,  for  the  causes 
of  action  have  not  been  changed,  and  the  legal  plaintiff  in  any  suit 
,upon  either  of  tlie  contracts  must  still  remain  the  same.  Three 
legal  plaintiffs  can  not  maintain  a  joint  action  upon  three  uncon- 
nected contracts,  each  one  of  which  respectively  has  been  entered 
into  by  one  of  the  respective  legal  plaintiffs,  acting  severally.  The 
evidence  was  in  accord  with  the  pleadings  and  presented  nothing 
which  would  have  warranted  an  amendment  under  which  a  recov- 
ery might  have  been  sustained.  The  motion  in  arrest  of  judgment 
should  have  been  sustained:  Lockhart  v.  Power,  2  Watts  371. 
The  judgment  is  reversed. 


GALLATIN  &  W.  TURNPIKE  COMPANY  v.  FRY. 

Supreme  Court  of  Tennessee,  1889.  )( 

88  Tenn.  296. 

Snodgrass,  J. :  The  defendant  in  error  sued  the  turnpike  com- 
pany for  $2,000  damages  for  injuries  to  horses,  resulting  in  the  death 
of  one  of  them  and  destruction  of  a  separator,  alleged  to  have  been 
occasioned  by  defective  and  improperly  constructed  road.  The  de- 
fense was  "not  guilty"  and  w^ant  of  property  in  plaintiff.  There  was 
verdict  and  judgment  against  the  company,  and  it  appealed. 

On  the  trial  it  appeared  that  the  horse  killed  and  the  one  injured 
belonged,  at  the  time  of  the  accident,  to  plaintiff,  but  that  the  sep- 
arator had  been  bought  by  plaintiff  and  John  W.  Parker  from  the 
Aultman-Taylor  Company,  and  these  parties  had  given  their  notes 
for  it. 

It  also  appeared  that,  in  May,  1887  (the  accident  being  in  July 

■^  following,  plaintiff  and  Parker  had  mortgaged  it  to  the  Aultman- 

/  Taylor  Company.     It  was  intended,  on  a  fair  construction  of  the 

Smortgage,  that  the  mortgagors  were  to  retain  possession  and  use  the 

'property.    While  so  doing  it  was  destroyed,  or  so  wrecked  as  to  be 

entirely  ruined  in  this  accident. 

Upon  these  facts  the  defendant  insisted  that  the  legal  title  was  in 
the  Aultman-Taylor  Company,  and  it  alone  could  sue. 

We  think  this  contention  not  well  founded,  the  mortgagor  being 
lawfully  in  possession  until  default.  Jones  oh  Mortgages,  §  440; 
American  Decisions,  vol.  XVIII,  pp.  547  to  552,  cases  cited  in 
notes. 

The  defendant  next  objected  that  the  right  of  action  was  in 
Parker  and  Fry,  and  that  there  was  no  evidence  to  sustain  a  finding 


RHOADS  V.  BOOTH  63 

in  favor  of  Fry.  To  meet  this  objection  below,  and  which  is  now 
repeated  here,  plaintiff  undertook  to  show,  tliat,  while  nominally 
the  title  was  in  himself  and  Parker,  by  an  arrangement  between 
themselves,  it  was  really  in  plaintiff  alone.  But  plaintiff  distinctly 
swears  this  arrangement  was  after  the  accident.  There  was  no  evi- 
dence to  the  contrary. 

It  therefore  follows  that  there  was  no  evidence  to  sustain  the\ 
claim  of  plaintiff  to  sole  ownership  when  the  injury  occurred,_and  / 
the  judgment  must  be  reversed  and  case  remanded  for  a  new  trial.^*  \ 


RHOADS  V.  BOOTH.  . 

Supreme  Court  of  Iowa,  1863. 
14  Iowa  S75'° 

Wright,  J. :  Upon  the  information  of  defendant  the  plaintiffs 
in  this  action  (three  in  number,  but  not  partners),  were  arrested, 
tried  before  a  justice  of  the  peace  for  larceny,  and  after  due  exam- 
ination were  discharged.  They  thereupon  instituted  this  action  to 
recover  damages  for  an  alleged  malicious  prosecution.  On  the  trial, 
defendant,  among  others,  asked  these  instructions  : 

First.  The  damages  in  the  case,  if  any,  are  purely  personal,  that' 
is,  they  appertain  to  each  person  separately,  and  unless  some  co- 
interest  or  joint  interest  is  shown,  plaintiff  can  not  recover. 


**In  actions  ex  delicto  persons  having  a  joint  interest  may  sue  jointly 
for  their  joint  damage,  and  they  must  join  if  the  objection  is  made  by  plea 
or  answer.  Y.  B.  2  Rich.  Ill ;  M.  T.  42 ;  Winterstoke  Hundred's  Case,  3  Dyer 
370a •  Hiil  V.  Tucker,  i  Taunt.  7  (1S07)  ■,Foote  v.  Cohin,  3  Johns  (N.  Y.) 
215  3  Am.  Dec.  478  (1808)  ;  Pickering  v.  Pickering,  11  N.  H.  141  (1840)  ; 
Parker  v.  Parker,  83  Mass.  245  (1861)  ;  Reedcr  v.  Sayre,  70  N.  Y.  180,  26 
Am.  Rep.  567  (1877);  Little  v.  Harrington,  71  Mo.  390  (1880);  Farnuni  v. 
Ewell  59  Vt.  327,  ID  Atl.  527  (1887);  Sack  v.  Schimmel,  3  Fa  Super.  Ct. 
426  (1897)  ;  Armstrong  v.  Canady,  35  So.  I3«  (Aliss.  1903;  ;  hutler'v.  RoyH- 
ton,  117  Mo.  App.  462,  74  S.  W.  723  (1906)  ;  St.  Louis  R.  Co.  v.  Webb,  zb 
Okla.  235  (1912);  Moppar  v.  Wiltchik,  56  Misc.  (N.  Y.)  676  (1907)-  For 
the  recovery  of  propertv  all  must  join.  Hart  v.  Fitzgerald,  2  Mass.  509,  3 
Am.  Dec.  75  (1807)  ;  Ellis  v.  Culver,  2  Harr.  (Del.)  129  (1836)  ;  Rcinheimer 
V.  P/^^»»>/7'7n^3i  35  Pa  /|37!  rT86n'>  ;  Bray  v.  Raymond,  166  Mass.  146,  44  N.  E. 
'131   (1896);  McCabe  v.  Transportation  Co.,  131  Mo.  App.  531   (1908). 

Persons  with  separate  interests  and,  therefore,  having  the  right  to  sue 
severally  may,  if  thev  have  sustained  joint  damage,  join  in  an  action  ex 
delicto.  Coryton  v.  L'ithebv,  2  Saund.  115  (1671);  Weller  v.  Baker,  2  Wils. 
C.  P.  414  (1769)  ;  Cook  V.  Batchelor,  3  B.  &  P.  150  (1802)  ;  Schuylkill  N._ 
Co.  V.  Farr,  4  W.  &  S.  (PaJ,  362  (1842)  ;  Le  Fann  v.  Malconison,  i  H.  L. 
Cas.  637^^848)  ;  IVhite  vTBascomb,  28  Vt.  268  (1856)  ;  Cleveland  v.  Grand 
Trunk  R.  Co.,  42  Vt.  449  (1869)  ;  Hays  v.  Farzvell,  53  Kans.  78,  35  Pac.  794 
(1894)  ;  Mclntire  v.  Westmoreland  Coal  Co.,  i>8  Pa.  108,  11  Atl.  8o8n  (1888)  ; 
Eddv  V.  Lafayette,  49  ted.  8o>,  i  L.  L.  A.  441   { iHgj)'. 

^•Part  of  the  opinion  holding  that  the  objection  may  be  taken  at  any 
stage  of  the  case  is  omitted.  Iowa  is  a  code  state,  but  the  common  law  rule 
is  well  summarized  in  this  case. 


64  TAUTIES 

Second.  If  a  man  commit  a  trespass  and  kill  a  horse,  which 
belongs  to  A  and  B  jointly,  then  they  can  sue  and  recover  in  a  joint 
action.  But  if  he,  by  the  same  act,  kills  two  horses,  one  belonging 
to  A  and  the  other  to  B,  they  could  not,  in  a  joint  action,  recover 
the  value  of  the  horses.  So  in  this  action  plaintiffs  can  only  recover 
such  damages  as  tliey  have  jointly  sustained. 

By  these  and  other  instructions  of  a  like  import,  defendant 
claimed  the  rule  to  be,  that  plaintiffs  could  not  maintain  this  action 
unless  they  had  a  joint  interest  in  the  damages  claimed,  or  the  judg- 
ment to  be  recovered.  These  were  all  refused,  and  such  refusal  is 
now  assigned  for  error. 

The  instructions  should  have  been  given.  As  a  rule  it  is  only 
when  two  or  more  persons  are  jointly  entitled  to,  or  have  a  joint  in- 
terest in,  the  property  affected,  or  the  damages  to  be  recovered,  that 
they  can  unite  in  an  action.  Therefore  several  parties  can  not  sue 
jointly  for  injuries  to  the  personT^s Tor  "sTariderj^a^^ttery,  or  f ajse 
imprisonment.  For  words  spoken  of  parties  in  their  joint  trade,  or 
for  slander  of  title,  they  may  sue  jointly;  but  not  so  when  two  or 
more  sue  for  slanderous  words,  which,  though  spoken  of  all,  apply 
to  them  all  separately;  or  in  a  case  of  false  imprisonment,  or  a  ma- 
licious prosecution,  when  each,  as  individuals,  are  imprisoned  or 
prosecuted.  The  principle  underlying  is,  that  it  is  not  the  act  but  the 
consequences  which  are  looked  at.  Thus,  if  two  persons  are  in- 
jured by  the  same  stroke,  the  act  is  one,  but  it  is  the  consequence  of 
that  act,  and  not  the  act  itself,  which  is  redressed,  and  therefore  the 
injury  is  several.  There  can  not  be  a  joint  action,  because  one  does 
not  share  in  the  suffering  of  the  other,  i  Ch.  PL,  64;  2  Saunders, 
116,  117;  2  Bouv.  Inst.,  p.  171. 

Reversed.*^ 


y 


"* Accord:  Ainsivorth  v.  Allen,  Kerb}^  (Conn.)  145  (1786);  Lcavet  v. 
Sherman,  i  Root  (Conn.)  159  (1790).  But  expenses  jointly  incurred  have 
been  recoverd  in  a  joint  action.  Barrett  v.  Collins,  10  Moo.  C.  P.  446  (1825)  ; 
Pcchell  V.  Watson,  8  M.  &  W.  691  (1841).  See  also,  Story  v.  Richardson,  6 
Bingh.  N.  Cas.  123  (1839);  Gazynski  v.  Colbiirn,  11  Cush.  10  (1853); 
Bunker  v.  Tufts,  S5  Maine  180  (1867)  :  Stepanck  v.  Kiila,  36  Iowa  563  (1873)  ; 
Columbia  D.  B.  Co.  v.  Geisse,  38  N.  J.  L.  39  (1875)  ;  Robinett  v.  McDonald, 
65  Cal.  611  (1884)  ;  Fonche  v.  Brower,  74  Ga.  251  (1884)  ;  Booth  v.  Briscoe, 
L.  R.  (1877),  2  Q.  B.  Div.  496;  .S"^  Louis  R.  Co.  v.  Dickerson,  29  Okla.  386 
(1911)  ;  Jefferson  Fertilizer  Co.  v.  Rich,  182  Ala.  633  (1913)- 

The  common  law  before  the  judicature  act  of  1873  is,  in  Hanuay  v. 
Smnrtlnvaite,  L.  R.  (1893)  2  Q.  B.  Div.  412,  summarized  by  Lord  Justice 
Bowen  as  follows :  "The  rule  was  that,  in  the  case  of  contract,  all  persons 
with  whom  the  contract  sued  on  was  made  had  to  join  as  plaintiffs,  and  no 
person  could  join  himself  as  plaintiff  in  an  action  for  breach  of  a  contract 
made  by  the  defendant  with  another  person.  With  regard  to  torts,  I  think 
the  law  may  be  properly  summed  up  as  follows:  persons  who  had  a  joint 
interest  were  bound  to  sue  jointly,  while  persons  who  had  several  interests 
were  bound  to  sue  separately ;  but  where  persons,  although  they  might  have 
several  interests,  had  sustained  joint  damage,  they  might  sue  jointly  also." 

As  to  the  pleading  of  misjoinder  and  nonjoinder  of  plaintiffs,  see  Ames 
Cases  on  Pleading  (2d  ed.)  pages  133  to  143. 


BARNIER  V.  BARNIER  65 

BARNIER  V.  BARNIER. 

High  Court  of  Justice  for  Ontario,  1892. 

23  Ontario  Rep.  280. 

Ferguson,  J. :  The  action  is  for  the  possession  of  the  easterly 
one-third  of  lot  number  three  in  the  second  concession  of  the  town- 
ship of  Dover.  The  trial  took  place  at  Chatham  upon  admissions 
made  in  open  court  and  without  any  other  evidence  being  given. 
There  are  admissions  in  writing,  signed  by  counsel,  which  were  put 
in.  These,  however,  do  not  differ  from  the  plain  admissions  made 
at  the  bar. 

The  facts,  then,  on  which  judgment  has  to  be  given  are  as 
follows : 

The  land  came  by  devise  from  an  owner  of  it  to  eight  persons 
as  tenants  in  common.  This  tenancy  in  common  was  expectant 
"upon  the  termination  of  a  life  estate  in  the  whole,  by  the  same  will 
given  to  the  widow  of  the  testator.  This  widow  has  died,  and  the 
tenancy  in  common  is  now  a  tenancy  in  possession.  The  plaintiff 
(not  being  one  of  the  eight  tenants  in  common  who  took  under  the 
devise)  purchased,  and  has  had  conveyed  to  him,  five  undivided 
one-eighth  shares  of  the  land,  one  of  such  shares  being  the  share  of 
the  defendant,  who  was  one  of  the  original  eight  tenants  In  common. 
Tlie'  conveyance  of  this  share  was  one  made  directly  from  the  de- 
fendant to  the  plaintiff. 

The  title  of  the  plaintiff  then  is,  and  is  admitted  to  be,  a  good 
title  to  five  undivided  one-eighth  shares  in  the  land,  all  the  shares 
being  equal.  The  defendant  has  now  no  title  to  the  land  or  any  of 
the  shares  in  it.  He  does  not  profess  to  have  really  any  title  to  the 
land  or  any  part  of  it.  It  is  admitted  that  he  has  not.  His  position 
is  simply  this :  He  was  in  possession  as  tenant  under  a  lease  from 
his  mother,  the  widow  of  the  testator,  who  had  the  life  estate,  and 
after  her  death  he  remained  in  possession  and  is  still  in  possession. 
Upon  being  asked  by  the  plaintiff  to  give  the  possession  to  him,  he 
answered  by  saying:  "take  possession  of  your  five  one-eight  parts, 
and  I  will  continue  in  possession  of  the  other  three  one-eighth  parts"  ; 
and  he  confines  his  defense  to  such  three  one-eighth  parts.  The  de- 
fendant has  not  disputed,  and  does  not  now  disptite,  the  right  of  the 
plaintiff  to  possession  as  for  and  in  respect  of  the  five  undivided  one- 
eighth  parts  or  shares  to  which  the  plaintiff  has  title ;  and  the  ques- 
tion is  as  to  whether  or  not  the  plaintiff  can  recover  from  the  de- 
fendant for  the  whole  or  more  than  in  respect  of  the  five-eighth 
parts. 

The  Judicature  Act  has  not,  as  I  understand,  made  any  material 
change  in  the  principles  that  govern  the  rights  of  the  parties  in  an 
action  for  the  recovery  of  the  possession  of  land;  although  it  very 
greatly  changed  the  practice  in  such  actions. 

In  the  case  Doe  d  Hellyer  v.  King,  6  Ex.  at  p.  795,  Baron  Piatt 
is  reported  to  have  said:  "Now,  a  tenant  in  common  is  the  owner  of 

5 — Crv.  Proc. 


66  TARTIES 

the  whole  estate  in  common  with  his  co-tenants ;  therefore,  as  soon 
as  he  has  proved  his  risjht  to  the  possession  in  common  with  others, 
and  that  the  defendant,  having  no  such  right,  is  a  wrongdoer  as 
against  him,  he  is,  in  my  opinion,  entitled  to  a  general  verdict,  for 
tlic  purpose  of  recovering  possession  of  the  whole."  This  way  of 
considering  such  a  case  seems  very  reasonable  and  forcible;  but  the 
learned  Baron  was  the  dissenting  judge.  The  opinion  of  the  other 
two  eminent  judges  was  the  opposite  of  this;  and  the  language  of 
their  judgments  (especially  that  of  Baron  Alderson),  leaves  no 
doubt  that  the  opinion  was  that  tenants  in  common  who  sue  in 
ejectment  can  recover  (even  from  a  trespasser),  only  in  respect  of 
the  shares  to  which  they  prove  title. 

In  the  case  Denne  d.  Mozvyer  v.  Judge,  ii  East  288,  there  had 
been  live  trustees  for  sale,  whose  title  was  joint.  A  conveyance  had 
been  executed  apparently  by  the  five,  but  the  signatures  of  only  three 
were  proved ;  it  was  received  as  a  deed  of  the  three.  The  court 
said  this  had  the  effect  of  severing  tlie  joint  estate,  and  of  convey- 
ing three-fifths  of  it  to  be  held  in  common  with  the  two  remaining 
parts.  The  plaintiff's  in  ejectment  were  depending  on  this  title.  A 
verdict  was  had  for  the  whole.  A  rule  nisi  was  obtained  to  enter  a 
nonsuit  or  confine  the  verdict  to  the  three-fifths.  A  verdict  for  the 
three-fifths  was  ordered. 

Both  these  cases  are  referred  to  with  approval,  and,  as  I  think, 
followed  in  the  cases  Lyster  v.  Kirkpatrick  and  Lyster  v.  Ramage, 
26  U.  C.  R.  217  and  233,  respectively.  In  each  of  these  cases  the 
recovery  w'as  for  two  undivided  third  parts  of  the  estate. 

I  do  not  see  that  what  was  decided  in  the  case  Doe  d.  Lulliam  v. 
Fenn,  3  Camp.  190,  as  against  the  decision  above  referred  to.  Even 
if  this  were  otherwise,  the  latter  decisions  should  govern. 

I  may  say  that  I  have  made  very  considerable  search  and  perused 
a  large  number  of  cases  for  authority  supporting  the  view  stated  by 
Baron  Piatt,  the  dissenting  judge  in  Doe  d.  Hellyer  v.  King,  but  I 
can  not  say  that  I  have  found  any,  and  none  was  referred  to  on  the 
argument.  If  I  did  not  consider  that  the  authorities  bind  me  to  do 
otherwise,  I  should  incline  to  adopt  the  reasoning  of  Baron  Piatt  in 
that  case.  But  I  think  I  can  not  do  anything  other  than  say  that 
the  present  plaintiff  (though  the  defendant  has  no  title  at  all)  can 
recover  possession  only  in  respect  of  the  five  midivided  one-eighth 
shares  of  the  land.  These  are  the  shares  and  the  only  ones  to  which 
he  has  shown  title.  This  possession  the  plaintiff  might  have  had 
(according  to  the  admissions)  without  litigation  before  this  action; 
but,  in  my  view,  the  defendant  deserves  little,  if  any,  consideration. 
Although  there  are  some  cases  looking  in  that  direction,  I  am  not,  I 
think,  bound  to  decide  anything  in  his  favor. 

There  will  be  judgment  for  the  plaintiff  for  the  five-eighths  un- 
divided, without  any  costs  to  either  party.*- 


" Accord:  Dewey  v.  Brown,  2  Pick.  (Mass.)  387  (1824);  Mohcrly  v. 
Bruner,  59  Pa.  481  (1868)  ;  Kirk  v.  Bozding,  20  Nebr.  260,  29  N.  W.  928 
(1886);  Butrick  V.  Tilton,  141  Mass.  93,  6  N.  E.  563  (1886);  Harrelson  v. 
Sarvis,  39  S.  Car.  14,  17  S.  E.  358  (1892)  ;  King  v.  Hyatt,  51  Kans.  504,  32 
Pac.   1105,  37  Am.  St.  304  (1893);  Skinner  v.  Odetihach,  81   Hun   (N.  Y.) 


INGHAM  LBR.   CO.  V.  INGERSOLL  6/ 

INGHAM  LUMBER  CO.  v.  INGERSOLL.  . 

Supreme  Court  of  Arkansas,  1910. 
93  Ark.  447-'" 

Frauenthal,  J. :  This  was  an  action  instituted  by  Ingersoll  & 
Company,  the  plaintiffs  below,  against  the  Ingham  Lumber  Com- 
pany, to  recover  damages  for  an  alleged  breach  of  contract.  The 
plaintiffs  were  a  partnership,  composed  of  J.  W.  Ingersoll  and  J.  H. 
Cobb,  and  the  firm  business  was  actively  managed  by  said  Ingersoll.' 
On  February  21,  1908,  the  plaintiffs  instituted  this  suit,  and  on  April 
8,  1908,  the  said  J.  H.  Cobb  appeared  before  the  clerk  of  the  court  in 

315  (1894)  ;  Marshall  v.  Palmer,  91  Va.  344,  21  S.  E.  672,  50  Am.  St.  838 
(1895);  Baber  v.  Henderson,  156  Mo.  566,  57  S.  W.  719,  79  Am.  St.  540 
(1900)  ;  Williams  v.  Coal  Creek  Co.,  115  Tenn.  578,  93  S.  W.  572,  6  L.  R. 
A.  (N.  S.)  710,  112  Am.  St.  878  (1906),  5  Ann.  Cas.  824.  Contra:  Clark  v. 
Vaughan,  3  Conn.  191  (1819)  ;  Robinson  V.  Roberts,  31  Conn.  145  (1862); 
Hibbard  v.  Foster,  24  Vt.  542  (1852)  ;  Williams  v.  Sutton,  43  Cal.  65  (1872)  ; 
Truehart  v.  McMichael,  46  Tex.  222  (1876)  ;  Neivman  v.  Bank  of  California, 
80  Cal.  368,  22  Pac.  261,  5  L.  R.  A.  467,  13  Am.  St.  169  (1889)  ;  Mays  v.  Wit- 
kowski,  46  La.  Ann.  1475,  16  So.  478,  (1894)  ;  Mather  v.  Dunn,  11  S.  Dak. 
196,  76  N.  W.  922,  74  Am.  St.  788  (1898)  ;  Winborne  v.  Elizabeth  City  Lum- 
ber Co.,  130  N.  Car.  32  (1902)  ;  Field  v.  Tanner,  32  Colo.  278,  75  Pac.  916 
(1904);  Lamb  v.  Lamb,  139  Mich.  166,  102  N.  W.  645  (1905);  Bergere  v. 
Chavois,  14  N.  Mex.  352  (1908);  Lecroix  v.  Malone,  IS7  Ala.  434  (190S)  ; 
Craver  v.  Mossbach,  57  Wash.  662  (1910)  ;  Hooper  v.  Bankhead,  54  So. 
549  (Ala.  1911). 

At  common  law,  the  title  of  tenant  in  common  being  several,  they  were 
required  to  sue  severally  in  real  actions.  White  v.  Pickering^rz  S^^.  (Pa.^ 
435  (1816)  ;  Decker  v.  Livingston,  15  Johns.  (.iN.'Y.)  479~Ti8i8)  ;  Rand  v. 
Dodge,  12  N.  H.  67  (1841)  ;  Throckmorton  v.  Burr,  5  Cal.  400  (1855).  This 
rule  has  been  changed  in  many  jurisdictions.  Porter  v.  Beeiler,  17  Barb. 
(N.  Y.)  149  (1853);  Hasbrouck  v.  Buncc,  62  N.  Y.  475  (1875);  Den  v. 
Brands,  15  N.  J.  L.  465  (1836)  ;  Wheat  v.  Morris,  21  D.  C.  11  (1892)  ;  Pa. 
Act  of  April  13,  1807,  4  Sm.  L.  476;  Commissioners  v.  Coleman,  108  111.  591 
(1884).  In  personal  actions  tenants  in  common  may  join,  and  according  to 
some  authorities,  must  join,  when  the  injur\'  is  to  the  common  estate,  whether 
ex  contractu  or  ex  delicto.  Bac.  Abr.,  tit.  Joint  Tenants,  K;  38  Cyc.  120;  Hill 
V.  Gibbs,  5  Hill  (N.  Y.)  56  (1843)  ;  May  v.  Parker,  12  Pick.  (Mass.)  34 
(1831)  ;  Suydam's  Admr.  v.  Combs,  15  N.  J.  L.  133  (1835)  ;  Bullock  v.  Hay- 
ward,  92  Mass.  460  (1865)  ;  Dubois  v.  Glaub,  52  Pa.  238  (1866)  ;  Kimball  v. 
Sumner,  62  Maine  305  (1873)  ;  Fell  v.  B^ennett_j  no  Pa.  181, _5  Atl.  17 
(1885)  ;  Clapp  V.  Pawtucket  Inst.^l^s'V^^ A^  (1887)  ;  Lottisville,  N.  A.  & 
C.  R.  Co.  V.  Hart,  119  Ind.  273,  21  N.  E.  753,  4  L.  R.  A.  549  (1889)  ;  Jackson 
V.  Moore,  94  App.  Div.  (N.  Y.)  504  (1904)  ;  Lumerate  v.  5"^  Louis  R.  Co., 
130  S.  W.  448  (Mo.  App.  1910)  ;  Fuhrman  v.  Interin  Warehouse  Co.,  64  Wash. 
159,  116  Pac.  666  (1911)  ;  Hughes  v.  Mendoza,  156  S.  W.  328  (Tex.  1913).  For 
an  injury  to  his  several  interest,  a  tenant  in  common  may  maintain  a  several 
action.  Hall  v.  Leigh,  8  Cranch.  (U.  S.)  50,  3  L.  ed.  484  (1814)  ;  Cook  v. 
Brightly,  46  Pa,  439  (186^  ;  Stall  v.  Wilbur,  77  N.  Y.  158  (1879)  ;  McGhee 
V.  Alexander,  104  ATa.  116  (1893)  ;  Roberts  v.  Holland,  L.  R.  (1893),  i  Q.  B. 
665;  Boley  v.  Allred,  25  Utah  402,  71  Pac.  869  (1903).  In  Jefferson  Fertilizer 
Co.  V.  Rich,  182  Ala.  633  (1913),  where  the  maintenance  of  a  fertilizer  plant 
constituted  a  nuisance,  it  was  held  that  tenants  in  common  suing  jointly 
could  recover  damages  which  occurred  to  them  jointly  as  owners  of  the 
property,  but  could  not  recover  for  personal  injuries  suffered  by  each  on  ac- 
count of  the  nuisance. 

"  The  arguments  of  counsel  and  part  of  the  opinion  are  omitted. 


68  PARTIES 

vacation  and  filed  a  written  statement  dismissing  the  suit  at  the 
phiintilT's  cost.  Thereafter,  at  the  April  term  of  tlie  court,  the  said 
J.  W.  Injjerstill  tiled  a  motion  to  reinstate  the  suit.  In  this  motion 
he  stated  that  he  had  the  entire  management  of  the  partnership  busi- 
ness, and  that  Cobb  had  only  a  nominal  interest  therein,  and  had 
advised  and  consented  to  the  institution  of  the  suit,  that  thereafter 
he  had  consi^ircd  and  colluded  with  the  defendant  to  defraud  tlie 
said  Ingersoll  by  dismissing  the  action.  The  motion  was  supported  by 
aftidavits,  and  resisted  by  the  defendant.  After  hearing  the  motion, 
the  court  reinstated  the  suit.  To  this  action  of  the  court  the  said 
J.  H.  Cobb  made  no  objecion,  and  saved  no  exception,  and  does  not 
in  this  court  enter  any  complaint.  The  lower  court  was  not  asked 
to  require  the  said  Ingersoll  to  indemnify  said  Cobb  against  any 
cost,  or  to  permit  tlie  said  Cobb  to  withdraw  from  the  suit  as  a 
party  plaintiff  or  to  be  made  a  party  defendant.  Thereupon  the  de- 
fendant filed  its  answer ;  and  upon  a  trial  of  the  cause  a  verdict  was 
returned  in  favor  of  plaintiffs  for  $290  damages.  The  defendant 
prosecutes  this  appeal. 

It  is  urged  by  the  defendant  that  the  court  erred  in  not  permit- 
ting tlie  plaintiff,  J.  H.  Cobb,  to  dismiss  the  suit  and  in  ordering  the 
action  to  be  reinstated  on  the  motion  of  the  plaintiff,  J.  W.  Ingersoll. 
The  claim  herein  sued  on  grew  out  of  a  contract  made  with  the 
partnership,  and  therefore  was  a  partnership  asset.  All  the  partners 
had  an  interest  in  the  subject-matter  of  the  suit,  and  accordingly 
were  proper  and  necessary  parties  to  the  action.  Kirby's  Digest, 
sec.  6065 ;  5  Encyc.  PI.  &  Pr.  854;  30  Cyc.  561 ;  Summers  v.  Heard, 
66  Ark.  550;  Hot  Springs  Rd.  Co.  v.  Tyler,  36  Ark.  205;  Matthews 
V.  Paine,  47  Ark.  54;  Coleman  v.  Fisher,  67  Ark.  27. 

The  partnership  contract  was  a  joint  contract,  and  therefore  all 
partners  at  the  time  the  contract  was  made  were  jointly  interested 
therein.   According  to  the  common-law  procedure,  where  one  of  the 
)  several  owners  of  a  joint  interest  refused  to  join  as  plaintiff,  the 
/  other   owners  were   permitted  to   use   his   name   as  a   co-plaintiff. 
'  Gray  v.  Wilson,  Meigs  (Tenn.),  394;  SjudgMJ  /•  Berk,  8  Serg.  &^ 
R.  ("Pa.)  308.,^ One  of  two  or  more  co-plaintiffs  has  no  right  to  dis-' 
miss  an  action  against  the  objection  of  the  others  unless  it  can  be 
shown  that  the  prosecution  of  the  suit  would  result  injuriously  to 
him.    In  the  event  he  might  be  injured  by  the  prosecution  of  the  suit, 
upon  his  being  indemnified  against  loss,  the  court  will  permit  the 
action  to  proceed.   Where  one  partner  is  unwilling  to  join  in  a  suit 
I  to  enforce  a  partnership  claim,  the  other  co-partners  have  a  right 
I  to  use  his  name  upon  indemnifying  him  against  loss,  if  indemnity  is 
Idemanded.    5  Encyc.  PI.  &  Pr.  856.   And  in  its  sound  discretion  the 
\court  has  a  right  to  prevent  the  dismissal  of  a  suit  by  one  partner 
where  it  appears  that  the  dismissal  will  result  in  an  injury  to  the 
other  partners,     i  Bates  on  Partnership,  383;  14  Cyc.  399;  Cunning- 
ham v.  Carpenter,  10  Ala.  109;  Loring  v.  Brackett,  3  Pick.  (Mass.) 
403 ;  Daniel  v.  Daniel,  9  B.  Mon.  195.'** 

""When  the  IcRal  interest  in  a  cause  of  action,  whether  it  arises  out  of 
tontract  or  is  ex  delicto,  is  joint,  residing  in  several  persons,  all  who  are 
living  must  join  in  the  action  founded  on  it.   One  or  more  of  the  parties  may 


INGHAM  LBR.   CO.  V.  INGERSOLL  69 

By  our  code  (Kirby's  Digest,  6007)  it  is  provided  that:  "Of  the 
parties  to  the  action,  those  who  are  united  in  interest  must  be  joined 
as  plaintiffs ;  but  when,  for  any  cause,  it  may  be  necessary  for  the 
purpose  of  justice,  a  person  who  should  have  been  joined  as  plain- 
tiff may  be  made  defendant,  the  reason  therefor  being  stated  in  the 
complaint."  Under  this  provision,  where  a  partner  refuses  to  join 
in  an  action  to  recover  a  claim  of  the  firm,  he  may  be  made  a  party 
defendant.     5  Encyc.  PI.  &  Pr.  856.*^ 

In  the  case  at  bar  the  claim  sued  on  was  founded  upon  a  con- 
tract made  with  the  partnership,  and  all  the  partners  joined  in  the 
institution  of  the  suit.  Thereafter,  one  of  the  partners  sought  to  dis- 
miss the  suit  to  the  injury  of  the  other  partner.  It  was  claimed  by 
the  other  partner  tliat  he  conspired  wrongfully  with  the  defendant 
to  defeat  him  of  his  rights.  Upon  the  hearing  the  court  refused 
to  dismiss  the  action.  The  unwilling  partner  did  not  except  to  the 
ruling  of  tlie  court.  He  did  not  ask  to  be  indemnified  against  costs 
or  loss.  The  defendant  now  is  the  only  party  who  complains  of 
this  action  of  the  court.  We  do  not  think  that  the  court  abused  its 
discretion  or  erred  in  reinstating  the  cause. 

Affirmed. 

New  York  Code  of  Civil  Procedure. 

§  446.  All  persons  having  an  interest  in  the  subject  of  the  action, 
and  in  obtaining  the  judgment  demanded,  may  be  joined  as  plaintiffs, 
except  as  otherwise  expressly  prescribed  in  liiis  act.*^ 

use  the  name  of  all  in  the  commencement  and  prosecution  of  the  action.  If 
others  are  unwilling  to  join  in  the  prosecution,  the  unwillingness  does  not 
authorize  a  dismissal  of  the  suit.  They  can  and  will  on  a  proper  application, 
be  protected  by  an  indemnity  against  costs,  from  those  prosecuting  the  suit. 
Per  Brickell,  C.  J.,  in  Harris  v.  Swanson,  62  Ala.  299  (1878).  Accord:  Cham- 
bers V.  Donaldson,  9  East  471  (1808)  ;  Sweigart  v.  Berk,  8  S.__&_R^X?a.)  308 
(1822)  ;  Emery  v.  Mucklozv,  10  Bingh.  23  (i«33)  ;  ^yHttenead  v.  Hughes,  2 
Dowl.  P.  C.  258  (1833)  ;  Johnson  v.  Holds-worth,  4  Dowl.  P.  C.  63  (1835)  ; 
Wright  v.  McLemore,  10  Yprg.  (Tenn.)  235  (1837)  ;  Southzvick  v.  Hopkins, 
47  Maine  362  (i860)  ;  IVinslozv  v.  Nezvlan,  45  111.  145  (1867);  Williams  v. 
Pacific  Surety  Co.,  66  Ore.  151   (1913)-  ^  ,  r     j 

*^  Under  code  procedure  an  unwilling  party  is  made  a  defendant.  15 
Enc  PI  &  Pr.  735;  N.  Y.  Code  Civ.  Proc,  §  446;  New  Jersey  Practice 
Act  of  1912  P.  L.  377,  §  5;  Cal.  Code  Civ.  Pro.,  §  382;  Nightingale  v. 
Scannell,  6  Cal.  506,  65  Am.  Dec.  525  (1856)  ;  Allen  v.  Miller,  11  Ohio  St. 
374  (i860)  ;  Hopkins  v.  Lane,  2  Hun  (N.  Y.)  38  (1874)  ;  Hardy  v.  Miles, 
91  N.  Car.  131  (1884)  ;  Baron  v.  Lakozv,  121  App.  Div.  (N.  Y.)  544  (1907)  ; 
Caylor  v.  Cooper,  164  Fed.  727  (1908).  In  England  in  case  of  a  difference 
between  co-plaintiffs  the  proper  course  is  to  make  an  order  that  the  name  of 
one  of  them  should  be  stricken  out  as  plaintiff  and  added  as  defendant.  In  re 
Mathews,  L.  R.  (1905)  2  Ch.  460. 

^'The  word  "judgment"  has  been  substituted  for  "relief"  which  ap- 
peared in  the  original  code  of  1848,  and  has  been  retained  in  most  of  the 
codes  founded  on  that  of  New  York.  Cal.  Code  Civ.  Pro.,  §  378;  Gen. 
Code  Ohio  (1910)  §  II2S7;  Burns'  Ann.  Stat.  Ind.  (1914)  §  263;  Iowa 
Code  §  3460;  Wis.  Stat.  §  2602;  N.  Car.  Code  §  409;  Cobbey's  Comp.  Stat. 
Nebr.  §  1036. 

In  England  the  rules  of  the  Supreme  Court  provide:  "All  persons 
may  be  joined  in  one  action  as  plaintiffs,  in  whom  any  right  to  relief  [in 
respect  of  or  arising  out  of  the  same  transaction  or  series  of  transactions] 


70  PARTIES 

§  448.  Of  tlic  parties  to  the  action,  those  who  are  united  in  in- 
terest must  be  joinetl  as  phiintiffs  or  defendants  except  as  other- 
wise expressly  prescribed  in  this  act.  But  if  the  consent  of  any  one, 
who  ought  to  be  joined  as  a  plaintiff,  can  not  be  obtained,  he  may  be 
made  a  defendant,  the  reason  therefor  being  stated  in  the  complaint. 
And  where  the  question  is  one  of  a  common  or  general  interest  of 
many  persons ;  or  where  the  persons,  who  might  be  made  parties,  are 
very  numerous  and  it  may  be  impracticable  to  bring  them  all  before 
the  court,  one  or  more  may  sue  or  defend  for  the  benefit  of  all.*^ 


INDIANA,    BLOOMINGTON   AND   WESTERN   RAILWAY 
CO.  z:  ADAM  SON. 

Supreme  Court  of  Indiana,  1887. 

114  Ind.  282. 

The  plaintiffs,  and  appellees,  stated  in  their  complaint  that  they 
and  Nellie  Adamson  had  entered  into  a  contract  with  the  defendant, 
and  appellant,  by  which  they  agreed  to  execute  a  quitclaim  deed  for 
a  strip  of  land  for  a  railroad  embankment  in  consideration  of  which 
tlie  defendant  agreed  to  pay  the  plaintiffs  and  Nellie  Adamson  one 
hundred  dollars,  and  maintain  a  stone  culvert  through  the  river  em- 
bankment ;  that  the  plaintiffs  and  Nellie  Adamson  had  fully  per- 
formed their  part  of  the  contract ;  that,  Nellie  Adamson  had  since 
died  and  diat  defendants  in  violation  of  the  contract  had  failed  to 
put  in  the  culvert.  The  defendants  demurred  on  the  ground  that 
neither  the  heirs  nor  representatives  of  Nellie  Adamson  were  made 
parties  to  the  action.*^ 

Elliott,  J. :    The  process  of  elimination  which  we  have  pursued 

is  alleged  to  exist,  whether  jointly,  severally,  or  in  the  alternative,  [where 
if  such  persons  brought  separate  actions  any  common  question  of  law  or 
fact  would  arise;  provided  that  if  upon  application  of  any  defendant  it  shall 
appear  that  such  joinder  may  embarrass  or  delay  the  trial  of  the  action, 
the  court  or  a  judge  may  order  separate  trials  or  make  such  other  order 
as  may  be  expedient],  and  judgment  may  be  given  for  such  one  or  more 
of  the  plaintiffs  as  may  be  found  to  be  entitled  to  relief,  for  such  relief  as  he 
or  thej-  may  be  entitled  to,  without  any  amendment.  But  the  defendant, 
though  unsuccessful,  shall  be  entitled  to  his  costs  occasioned  by  so  joining 
any  person  who  shall  not  be  found  entitled  to  relief  unless  the  court  or  a 
judge  in  disposing  of  the  costs  shall  otherwise  direct.  Order  XVI,  rule  I. 
The  parts  in  brackets  were  added  after  it  had  been  decided  in  Smurthwaite 
v.  Hannay,  L.  R.  (1894)  App.  Cas.  494,  that  the  order  dealt  only  with  joinder 
of  parties  and  had  no  reference  to  joinder  of  causes  of  action.  See  Stroud 
v.  Lawson,  L.  R.  (1898),  2  Q.  B.  Div.  44;  Drincqhier  v.  Wood,  L.  R.  (1899) 
I  Ch.  Div.  393;  Benning  v.  Deford  Gas  Co.,  L.  R.  (1907),  2  K.  B.  Div.  290; 
Compania  Sansincna  D.  C.  C.  v.  Hoitlder,  L.  R.  (1910),  2  K.  B.  Div.  354. 

*'  See  generally  Pomeroy's  Code  Remedies  (4th  ed.)  p.  161  et  scq.  Cal. 
Code  Civ.  Proc.  §  382;  Rem.  &  Ball.  Wash.  Code  (1910)  §  189;  New  Jersey 
Practice  Act  of  1912,  P.  L.  2>77<  §§  4  and  5;  Burns'  Ann.  Stat.  Ind.  (1914),  § 
270;  Union  Pacific  R.  Co.  v.  Vincent,  58  Nebr.  171  (1899)  ;  McCormac  v.  Wig- 
gins, 84  N.  Car.  278  (1881). 

"  The  statement  of  facts  is  abridged  from  the  opinion,  of  which  only  so 
much  as  relates  to  the  question  of  parties  is  printed. 


GRAY  V.   ROTHSCHILD  71 

trims  the  case  down  to  the  question,  whether  under  the  code  of  civil 
procedure,  the  survivors  rnay  bring  an  action  on  a  joint  contract 
without  joining  the  heirs  or  representatives  of  the  deceased  obUgee. 
That  they  might  have  done  so  at  common  law  is  indisputable.  Dicey, 
Parties  to  Actions  (2d  ed.),  p.  149.  If  the  code  has  not  changed 
the  rule  they  may  still  do  so. 

The  question  with  which  we  have  to  deal  is  important,  and  not 
entirely  free  from  difficulty,  but,  after  the  most  careful  study  we 
have  been  able  to  give  the  subject,  we  feel  bound  to  hold  that  the 
code  does  not  change  the  common-law  rule.  The  question  goes  back 
of  the  procedure  and  takes  up  the  element  of  the  right  itself.  The 
right,  the  statute  does  not  profess  to  change;  it  reaches  only  the 
remedy.  In  the  case  of  a  joint  contract  the  whole  right — the  unified 
interest — vests  in  the  survivors.  Upon  them  falls  the  entire  right. 
If  they  do  possess  the  entire  right,  then  they  are  the  real  parties  in 
interest,  since  it  is  inconceivable  that  if  they  do  possess  the  entire 
right  any  other  person  can  be  a  real  party  in  interest.  The  principle 
of  the  common  law  vesting  the  whole  right  in  the  survivors  is  not 
changed  by  the  code,  and  so  long  as  the  principle  remains  unchanged 
the  persons  possessing  this  entire  right  must  be  regarded  as  the  real 
parties  in  interest.  It  requires  legislation  to  abrogate  a  rule  of  law, 
and  the  courts  can  not  assume  tlie  functions  of  the  legislature. 

Mr.  Pomeroy,  who  has,  as  strongly  as  any  one,  urged  a  liberal 
construction  of  the  code  and  an  extension  of  its  provisions,  affirms 
that  the  common-law  principle  has  not  been  abrogated.  In  discuss- 
ing this  question  he  said:  "In  actions  ex  contractu,  all  the  persons 
having  a  joint  interest  must  be  made  plaintiffs,  and,  when  one  of 
them  dies,  the  action  must  be  brought  or  must  proceed  in  the  names 
of  the  survivors ;  the  personal  representatives  of  the  deceased  obligee 
or  promisee  can  not  be  joined  as  co-plaintiffs;  and  in  the  same  man- 
ner, in  actions  ex  delicto  for  injuries  to  personal  property,  all  the 
joint  owners  must  unite,  and,  if  one  of  them  dies,  the  action  is  to  be 
prosecuted  by  the  survivors  alone.  These  common-law  rules  remain 
in  full  force."  *^ 

Judgment  affirmed.^" 

GRAY  V.  ROTHSCHILD. 

Supreme  Court  of  New  York,  1888. 

48  Hun  (N.Y.)  596.'' 

Daniels,  J. :  The  plaintiffs  consist  of  seven  different  firms,  who 
sold  goods,  at  different  times,  to  the  defendants,  Charles  M.  Roths- 

*®Pomeroy's  Code  Remedies  (4th  ed.)  p.  205. 

^^ Burkeit  v.  Lehmen  Higginson  Grocery  Co.,  8  Okla.  84  (1899)  ;  Buck- 
man  V.  Brett,  35  Barb.  (N.  Y.)  596  (1861)  ;  Medlock  v.  Merritt,  102  Ga.  212 
(1897)  ;  McNaniee  v.  Carpenter,  56  Iowa  276  (1881).  In  Natter  v.  Blanchard 
Co.,  153  App.  Div.  (N.  Y.)  814  (1912),  two  persons  were  entitled  to  share 
jointly  a  percentage  o£  profits  under  a  contract.  In  an  action  by  one  a  demurrer 
was  svistaincd  for  nonjoinder  of  his  copromissee. 

"  Part  of  the  opinion  is  omitted.  Affirmed  by  the  Court  of  Appeals, 
112  N.  Y.  668. 


7-  TAKTIKS 

ohiKl  and  Jacob  j\l.  RothschiUl.  who  were  co-parlncrs,  carrying  on 
business  in  the  city  of  New  York  under  tlie  name  of  Charles  M. 
Rothschild  &  Co.  It  was  alleged,  in  support  of  their  right  to  main- 
tain a  joint  action  against  the  purchasers  of  the  goods,  together 
witli  Jacob  M.  Rothschild  and  Abraham  Rothschild,  that  the  goods 
had  been  obtained  by  means  of  false  representations,  and  that  the 
purchasers,  together  with  the  two  other  defendants,  had  entered  into 
a  conspiracy  under  which  these  goods,  and  others,  were  to  be  pur- 
chased on  credit,  and  the  firm  of  Charles  M.  Rothschild  &  Co.  were 
to  defraud  the  vendors  out  of  the  purchase-prices  by  removing,  se- 
creting and  disposing  of  the  goods,  and  that  this  conspiracy  had  been 
carried  into  execution.  The  action  was  not  for  the  recovery  of  the 
goods  themselves,  or  a  rescission  of  the  sales  made,  but  for  the  re- 
covery of  damages  amounting  to  tlie  aggregate  sum  owing  to  the 
several  tirms,  joined  as  plaintiffs,  for  the  sale  of  their  goods  and 
merchandise.  The  defendants  demurred  to  the  complaint,  alleging 
in  suj^port  of  the  demurrer,  a  misjoinder  of  plaintiffs;  that  causes  of 
action  had  been  improperly  united,  and  that  the  complaint  did  not 
state  facts  sufficient  to  constitute  a  cause  of  action.  And  the  court, 
at  the  trial,  sustained  the  demurrer  on  the  ground  of  a  misjoinder  of 
parties,  and  that  several  causes  of  action  were  improperly  vmited  in 
the  complaint. 

The  accuracy  of  this  decision  has  been  resisted  by  the  plaintiffs, 
chiefly  under  the  authority  of  sec.  446  of  the  Code  of  Civil  Procedure. 
This  section  has  provided  that  all  persons  having  an  interest  in  the 
subject  of  the  action,  and  in  obtaining  the  judgment  demanded,  may 
be  joined  as  plaintiffs,  subject  to  exceptions  not  required  now  to  be 
noticed.  But  this  section  of  the  code  does  not  support  the  case,  as 
the  plaintiffs  disclose  it  by  their  complaint,  for  each  one  of  the  firms 
in  selling  their  goods,  if  the  facts  have  been  correctly  set  forth  in 
the  complaint,  is  entitled  to  maintain  a  separate  action  for  damages 
against  the  purchasers  and  the  two  other  persons  implicated  in  the 
conspiracy,  and  that  is  all  the  relief,  as  the  facts  have  been  presented, 
which  either  one  of  the  firms  would  be  entitled  to  obtain.  There  is 
no  joint  subject  of  action  in  this  case,  neither  can  any  joint  judg- 
ment be  recovered  in  the  action  under  the  authority  of  this  section, 
but  each  one  of  the  firms  have  a  separate  and  distinct  cause  of  action 
against  the  defendants,  upon  which,  in  case  of  a  recovery,  a  separate 
judgment  would  necessarily  be  entered.  The  subject  of  the  action  is 
the  recovery  of  the  damages  sustained  by  each  one  of  the  firms  in 
the  sale  of  their  own  goods.  Each  sale  was  distinct  from  all  the 
others,  and  made  upon  fraudulent  representations  inducing  such 
sale.  There  was  no  concurrent  or  joint  action  by  the  several  firms, 
whose  members  have  been  joined  as  plaintiffs,  in  the  sales  of  their 
respective  goods,  but  each  firm  proceeded  and  transacted  the  busi- 
ness for  itself.  And  for  the  value  or  price  of  its  goods,  if  the  facts 
are  truthfully  alleged  in  the  complaint,  each  firm  is  entitled  to  a 
separate  and  distinct  recovery.  And  no  facts  are  alleged  in  the  case 
in  any  form  which  would  secure  to  the  plaintiffs  joint  relief  by  way 
of  a  joint  judgment.  The  case,  by  no  construction  which  can  be 
placed  upon  this  section  of  the  code,  is  in  such  a  condition  as  to  be 


GRAY  V.   ROTHSCHILD  73 

maintained  by  these  several  firms  as  the  plaintiffs  in  one  action,  and 
no  other  provision  of  the  Code  has  gone  so  far  as  to  permit  separate 
actions  for  damages  to  be  prosecuted  and  sustained  in  this  form. 

Authorities  have  been  assiduously  collected  and  cited  which  are 
relied  upon  as  sustaining  so  broad  a  rule  of  practice,  as  to  permit 
this  action  to  be  sustained  in  its  present  form  in  behalf  of  all  these 
different  firms.  They  are  cases  which  have  arisen  in  courts  of 
equity  allowing  actions  to  be  maintained  by  persons  severally  inter- 
ested in  the  subject-matter  of  the  action  and  affecting  all  alike.  In 
that  class  of  cases  an  action  is  allowed  to  be  maintained  by  all  par- 
ties interested,  in  obtaining  the  same  relief,  but  they  have  no  appli- 
cation to  this  action,  for  these  different  firms  are  not  entitled  to  any 
joint,  or  final  relief  by  way  of  a  single  judgment;  what  they  are 
entitled  to,  if  they  can  maintain  their  actions  at  all,  is  the  damages 
which  each  firm  has  sustained  by  means  of  the  sale  of  its  own  goods 
induced  by  fraudulent  representations  made  to  it.  There  is  no  joint 
subject-matter  to  be  either  set  aside  or  maintained,  as  there  was  in 
the  cases  cited  on  the  argument,  and  no  joint  interest  in  the  action. 
It  is  not  proposed  either  to  set  aside  or  restrain  the  effect  or  prog- 
ress of  the  alleged  conspiracy,  but  all  that  is  proposed  is  the  recov- 
ery of  damages  to  be  apportioned  to  the  goods  sold  by  each  one  of 
these  distinct  and  separate  firms.  The  general  principle  so  far  as  it 
has  been  extended  by  courts  of  equity  allows  separate  plaintiffs  hav- 
ing separate  interests  to  join  in  an  action  for  relief  only  where  a 
common  object  is  to  be  secured  by  the  prosecution  of  the  action. 
When  that  is  not  the  case  persons  having  distinct  and  independent 
claims  against  the  defendant  can  not  join  in  a  suit  for  the  separate 
relief  of  each.  This  was  held  in  Murray  v.  Hay  (i  Barb.  Ch.  59, 
62).  And  the  same  principle  was  acknowledged  in  Ballon  v.  Inhab- 
itants of  Hopkinton  (4  Gray  324),  where  it  was  declared  by  the 
court  that,  if  damages  were  claimed,  each  party  must  prosecute  his 
suit  separately.  And  no  broader  rule  was  either  intimated  or  sanc- 
tioned in  Cadigan  v.  Brozvn  (120  Mass.  493).  In  Marselis  v.  Mor- 
ris Canal  Company  (i  Saxton  N.  J.  Ch.  31),  these  principles  were 
very  fully  considered,  and  the  court  concluded  that  the  authorities 
permitted  no  greater  extension  of  the  rule  than  has  already  been 
mentioned.  In  Ireland  v.  City  of  Rochester  (51  Barb.  415)  ;  Scho- 
field  v.  City  of  Lansing  (17  Mich.  437),  and  Kennedy  v.  City  of  Troy 
(14  Hun  308),  the  actions  were  for  relief  affecting  a  subject-matter 
in  which  all  the  plaintiffs  were  interested  in  obtaining  a  single  pre- 
ventive judgment.  And  to  avoid  a  multiplicity  of  suits,  as  but  one 
object  was  to  be  attained,  they  were  allowed  to  join  in  securing  the 
relief  necessary  f.or  the  protection  of  their  several  interests.  The 
subject-matter  was  entirely  distinct  and  separate  from  such  an 
action  as  this,  in  which  only  damages  are  claimed  by  each  of  the 
firms.'  In  Smith  v.  Schulting  (14  Hun  52),  the  complaint  v/as  sus- 
tained against  a  demurrer  upon  the  ground  that  it  was  to  be  in- 
ferred, not  only  that  the  plaintiffs  were  severally  entitled  to  the  same 
common  relief  against  the  same  instrument,  but  that  the  release  it- 
self had  been  obtained  from  them  by  joint  false  representations. 
And  there  the  suit  was  maintained  only  so  far  as  to  avoid  release. 


74  TAUTIES 

And  in  Looniis  v.  Brown  (i6  Barb.  325),  the  undertaking  on  which 
the  action  was  brought  had  been  jointly  entered  into  with,  and  for 
the  benefit  of,  the  persons  who  had  joined  as  plaintiffs  in  the  action. 
While  in  Ihitik't'rliojf  v.  Broum  (6  Johns.  Ch.  139),  the  decision  pro- 
ceeded no  farther  than  to  permit  several  judgment  creditors  who 
were  alike  interested  in  setting  aside  a  fraudulent  disposition  of 
property  by  tlieir  common  debtor,  to  join  in  an  action  for  that  relief. 
The  case  is  entirely  distinguishable  from  the  present  suit,  for  the 
reason  already  mentioned  that  damages  only  are  what  these  different 
firms  claim  to  recover,  and  those  damages  are  strictly  limited  to  their 
own  separate  transactions. 

The  case  of  Goodiiigltf  v.  Goar  (30  Ind.  418)  is  an  authority  di- 
rectly against  the  plaintiff's  action,  for  there  it  was  held  that  a  joint 
action  on  an  agreement  by  several  persons  to  pay  a  proportionate 
part  of  what  either  should  pay  for  a  substitute,  in  case  either  should 
be  drafted,  could  not  be  maintained.  But  that  the  suit  for  contribu- 
tion must  be  maintained  against  each  person  separately  who  had 
bound  himself  by  the  agreement.  The  case  of  Wood  v.  Perry  (i 
Barb.  114)  is  likewise  opposed  to  the  right  of  the  plaintiffs  to  main- 
tain this  action  jointly  and  so  is  that  of  Emery  v.  Erksine  (66  Barb. 
9),  and,  also,  Hozvell  v.  City  of  Buffalo  (2  Abb.  Ct.  of  App.  412). 
This  decision  has  been  assailed  by  the  counsel  for  the  plaintiffs  as 
erroneously  made,  but  it  has  the  support  of  the  general  principle 
already  mentioned,  observed  and  enforced  in  courts  of  equity,  that 
persons  having  distinct  and  independent  claims  to  relief  can  not, 
unless  the  case  is  a  peculiar  one,  join  in  the  prosecution  of  one 
action.  There  the  property  of  the  several  plaintiff's  had  been  sold 
for  the  nonpayment  of  separate  amounts  assessed  for  an  improve- 
ment. The  object  of  the  action  was  to  restrain  the  execution  and 
delivery  by  the  city  of  certificates  of  sale,  upon  the  allegation  that 
the  assessments  were  unlawful.  The  certificates  when  issued  would 
affect  only  the  property  of  each  different  owner.  They  would  have 
no  joint  effect  upon  any  of  the  property.  And  it  was  held  by  the 
court,  chiefly  for  that  reason,  that  the  action  could  not  be  main- 
tained, each  plaintiff  having  only  a  separate  and  distinct  right  of 
action  for  relief  in  which  the  others  were  in  no  manner  interested 
or  identified.  In  all  the  cases  containing  any  reference  whatever  to 
separate  and  distinct  claims  for  damages,  the  decisions  have  been 
guarded  by  the  conclusion  previously  stated,  that  a  joint  action  by 
several  and  distinct  parties  claiming  several  and  distinct  damages, 
can  not  be  maintained.  Any  other  rule  would  be  attended  with  so 
much  perplexity,  intricacy  and  confusion  at  the  trial,  as  to  render 
the  jury  before  which  the  action  must  necessarily  be  tried  next  to 
incapable  of  deciding  and  disposing  of  it.  If  this  action  could  pro- 
ceed to  trial  seven  different  causes  of  action  would  be  presented  for 
the  hearing  and  decision  of  the  jury,  and  it  would  be  extremely 
difficult  for  them  to  carry  in  their  minds  anything  like  an  intelligent 
recollection  of  the  evidence  given,  affecting  so  many  different  rights 
of  action.  A  rule  allowing  several  and  distinct  firms  to  join  in  the 
prosecution  of  one  suit  for  damages  would  not  only  be  attended 
with  the  greatest  embarrassment,  but  would  result  in  probable  in- 


HOME  INS.   CO.  V.  GILMAN  75 

justice  to  one  or  more  of  the  parties  from  misapprehensions  or  over- 
sight of  evidence.  The  demurrer  was  properly  sustained  at  the  trial 
and  both  the  judgment  and  order  should  be  affirmed. ^^ 


HOME  INSURANCE  COMPANY  v.  GILMAN. 

Supreme  Court  of  Indiana,  1887. 

112  Ind.  7.'' 

Mitchell,  J. — A  policy  of  fire  insurance  was  issued  to  George 
Sapp,  the  alleged  owner  of  a  store  building,  stipulating  for  insurance 
against  loss  or  damage  by  fire  to  the  amount  of  fifteen  hundred 
dollars. 

The  policy  contained  the  following  stipulation:  "Loss,  if  any, 
under  this  policy,  payable  to  W.  W.  Gilman,  executor  of  the  Rey- 
nolds estate,  as  his  interest  may  appear." 

The  complaint  alleged  that  at  the  time  the  policy  was  issued,  to 
wit,  on  the  14th  day  of  February,  1885,  as,  also,  when  the  property 
insured  was  destroyed  by  fire — February  i6th,  1885, — Sapp  was  the 
owner  thereof,  in  fee  simple,  and  that  Gilman  held  a  mortgage 
thereon  to  secure  a  debt  due  him  from  Sapp,  amounting  to  nine 
hundred  dollars.  It  also  alleged  that  the  amount  of  the  loss  ex- 
ceeded the  amount  of  the  debt  due  Gilman.  The  appellant  contends 
that  Sapp  and  Gilman  can  not  maintain  a  joint  action  on  this 
policy,  and  hence  that  the  court  erred  in  overruling  the  demurrer 
to  the  complaint. 

The  learned  court  below  was  of  opinion  that  an  action  might 
be  so  maintained,  and,  after  hearing  the  proofs,  rendered  judgment 
"that  the  plaintiffs  do  have  and  recover  of  and  from  the  defendant 
the  sum  of  $1,537.51,  and  that  of  said  sum  William  W.  Gilman,  as 
executor  of  the  estate  of  Henry  Reynolds,  deceased,  shall*  first  re- 
cover the  sum  of  $949.51,  and  the  plaintiff  George  R.  Sapp  shall 
recover  the  residue." 

The  question  is  thus  presented,  whether  after  the  loss  Gilman 
and  Sapp  had  such  a  joint  interest  in  the  policy  as  entitled  them  to 
join  as  plaintiffs  in  an  action  thereon? 

"Accord:  Cohh  v.  Monjo,  90  App.  Div.  (N.  Y.)  85  (1904)  ;  Mining  Co. 
V.  Bruce,  4  Colo.  293  (1878)  ;  Jeffers  v.  Forbes,  28  Kans.  174  (1882)  ;  Martin 
V.  Davis,  82  Ind.  28  (1882)  ;  Hellams  v.  Switser,  24  S.  Car.  39  (1885)  ;  Fore- 
man V.  Boyle,  88  Cal.  290  (1891)  ;  Faivre  v.  Gillman,  84  Iowa  573  (1892)  ; 
Morton  v.  Western  Union  Tel.  Co.,  130  N.  Car.  299  (1902).  Action  by  three 
for  damages  for  mental  anguish  caused  by  faihire  to  deliver  a  telegram. 
Norfolk  &  Western  R.  Co.  v.  Smoot,  81  Va.  495  (1886).  Compare  Mcintosh 
V.  Zaring,  150  Ind.  301   (1897). 

There  must  be  community  of  interest  not  only  in  the  subject  of  action 
but  in  the  relief  demanded.  Keary  v.  Mutual  Reserve  Fund  L.  A.,  30  Fed. 
359  (1887)  ;  Central  State  Bank  v.  Walker,  7  Kans.  748  (1898)  ;  Brownwell 
V.  Irwin,  25  Ind.  App.  395  (1900)  ;  Younkin  v.  Mihvaukee  Light,  H.  &  T. 
Co.,  112  Wis.  15  (1901). 

°'  Part  of  the  opinion  is  omitted. 


y6  PARTIES 

Section  262,  R.  S.  1881,  provides  that  "All  persons  having  an 
interest  in  the  subject  of  the  action,  and  in  obtaininrj  the  relief  de- 
manded, shall  be  joined  as  plaintiffs,  except  as  otherwise  provided;" 
and  by  sec.  269  of  the  code  it  is  enacted  that  "Of  the  parties  in  the 
action,  those  who  are  united  in  interest  must  be  joined  as  plaintiffs 
or  defendants,"  etc. 

Section  568  provides  that  judgment  may  be  given  for  or  against 
one  or  more  of  several  plaintiffs,  or  for  or  against  one  or  more  of 
several  defendants,  and  that  the  "Judgment  may,  *  *  *  when 
the  justice  of  the  case  requires  it,  determine  the  ultimate  rights  of 
the  parties  on  each  side,  as  between  themselves." 

These  statutes  must  be  deemed  to  have  modified  the  extremely 
technical  and  arbitrary  rules  of  the  common  law,  in  respect  to  par- 
ties and  the  rendition  of  judgments.  Their  effect  is,  substantially,  to 
adopt  the  equitable  rules  of  the  chancery  courts  in  regard  to  these 
subjects  and  they  require  the  application  of  those  rules  to  each  case 
as  it  arises,  whether  it  be  of  a  legal  or  equitable  character.  Tate  v. 
Ohio,  etc.,  R.  R.  Co.,  10  Ind.  174;  Goodnight  v.  Goar,  30  Ind.  418; 
Pom.  Rem.,  §§  200,  215 ;  i  Works  Pr.  98,  99. 

At  the  common  law  it  was  essential  that  all  tliose  who  appeared 
on  the  record  as  plaintiffs  should  have  an  interest  in  the  whole  of 
the  recovery,  so  that  a  judgment  in  solido  could  be  rendered  in  favor 
of  all  the  plaintiffs,  as,  also,  against  all  the  defendants. 

This  rule,  never  founded  upon  any  substantial  reason,  has  been 
modified  by  the  provisions  of  the  code  already  referred  to.  Moyer 
V.  Brand,  102  Ind.  301,  and  cases  cited. 

While  it  has  often  been  decided,  under  the  code,  that  all  persons 
who  join  as  plaintiffs  must  have  an  interest  in  the  subject  of  the 
action,  and  that  it  is  necessary  that  they  be  united  in  interest  (Dill 
V.  Voss,  94  Ind.  590;  Faulkner  v.  Brigel,  loi  Ind.  329,  and  cases 
cited),  it  does  not  follow  tliat  the  interest  of  all  must  be  equal,  or 
that  their  interests  may  not  be  legally  severable.  It  is,  of  course, 
not  meant  that  two  or  more  persons  having  separate  causes  of  ac- 
tion, although  they  arise  out  of  the  same  transaction,  and  be 
against  the  same  defendant,  may  nevertheless  unite  in  the  same 
action.  W^here,  however,  there  is,  as  was  said  in  Tate  v.  Ohio,  etc-, 
R.  R.  Co.,  supra,  "one  common  interest  among  all  the  plaintiffs, 
centering  in  the  point  in  issue  in  the  cause,  the  objection  of  im- 
proper parties  can  not  be  maintained,"  even  though  the  amount  of 
their  several  interests  be  unequal,  and  even  though  they  may  be 
entitled  to  several  judgments,  in  respect  to  the  amounts  to  be  recov- 
ered. All  must  have  some  common  interest  in  respect  to  the  subject- 
matter  of  the  suit  and  each  must  be  interested  that  all  have  relief 
in  respect  to  that  subject-matter.  This  creates  such  a  unity  of  inter- 
est as  entitles  parties  so  related  to  a  particular  subject-matter  to 
unite  as  plaintiffs  in  an  action.   Martin  v.  Davis,  82  Ind.  38. 

In  the  case  before  us  both  parties  plaintiff  had,  by  contract,  a 
common  interest  that  a  recovery  should  be  had  upon  the  policy  of 
insurance.  It  was  the  interest  of  each  that  the  other  should  recover, 
as  well  as  that  he  should  recover  himself.  A  recovery  by  the  mort- 
gagee enured  to  the  benefit  of  his  co-plaintiff,  in  that  it  established 


CLIMAX  SPECIALTY  CO.  V.  SENECA  BUTTON  CO.  "Jj 

a  common  right.  The  amount  recovered  by  the  mortgagee  went  in 
hquidation  of  the  mortgagor's  debt,  while  a  recovery  by  the  latter 
had  a  like  effect  upon  the  common  right,  and  entitled  the  former  to 
receive  payment  out  of  the  sum  recovered  as  his  interest  in  the  fund 
might  appear.  Each  was,  therefore,  interested  in  the  relief  sought 
by  the  other,  and  as  both  appeared  upon  the  face  of  the  policy  to 
have  a  common  interest,  neither  being  entitled  to  the  whole  fund, 
it  was  proper  for  the  protection  of  the  defendant  that  both  should 
be  parties.  "It  was  not  so  material  whether  they  were  plaintiffs  or 
defendants,  so  that  their  rights  under  the  contract  would  be  barred 
by  the  event  of  the  suit."  Morningstar  v.  Cunningham,  no  Ind. 
328;  Durham  v.  Hall,  67  Ind.  123;  May  Ins.,  §  449. 

There  was  no  error  in  overruling  the  demurrer  to  the  com- 
plaint.^*. 


CLIMAX    SPECIALTY    COMPANY   v.    SENECA    BUTTON 

COMPANY. 

Supreme  Court  of  New  York,  1907. 

54  Misc.  (N.  Y.)  152." 

Sutherland,  J.:  The  plaintiff  states  in  the  complaint  that  the 
action  is  brought  "for  the  benefit  of  itself  and  of  all  others  who  are 
similarly  situated  and  interested  in  the  questions  involved  herein  and 
who  may  contribute  to  the  expenses  of  the  same."  The  plaintiff's 
cause  of  action  as  alleged  may  be  briefly  summarized  as  follows : 
The  plaintiff  owns  mills  and  water  rights  in  the  village  of  Seneca 
Falls  on  the  Dey  race  on  the  north  side  of  Seneca  outlet,  also  called 
Seneca  river,  the  water  for  which  race  is  made  to  flow  therein  by  a 
wing  dam  across  said  stream.  Farther  up  the  stream  is  another  dam 
by  means  of  which  a  portion  of  the  water  of  said  outlet  is  run  into 
what  is  known  as  the  Sackett  &  Bascom  race  on  the  south  side,  the 
water  from  which  flows  again  through  tail  races  into  the  outlet  at 
points  mostly  below  the  wing  dam  at  tlie  head  of  the  Dey  race.  The 
complaint  alleges  that  the  dam  furnishing  water  for  the  Sackett  & 
Bascom  race  was  built  by  the  joint  eff"orts  and  contributions  of  the 
owners  of  hydraulic  rights  on  both  sides  of  the  stream  at  that  point, 
and  under  an  agreement  that  the  waters  diverted  into  the  Sackett 
&  Bascom  race  should  in  no  event  exceed  one-half  the  waters  of 
the  outlet,  and  that  the  other  half  of  the  water  should  be  reserved 


"Accord:  Winne  v.  Niagara  Fire  Ins.  Co.,  91  N.  Y.  185  (1883).  Com- 
pare, where  joinder  was  permitted,  Loomis  v.  Brown,  16  Barb.  (N.  Y.)  325 
(1853)  ;  Lasher  v.  North-Western  Nat.  Ins.  Co.,  18  Hun  (N.  Y.)  98  (1879)  ; 
Graves  v.  Merchants  Ins.  Co.,  82  Iowa  637,  49  N.  W.  65,  31  Am.  St.  507 
(1891)  ;  Trompen  v.  Yates,  66  Nebr.  525,  92  N.  W.  647  (i9o'2)  ;  Judy  v.  Jester, 
100  N.  E.  15  (Ind.  App.  1912),  with  joinder  not  permitted,  Keary  v.  Mutual 
Reserve  Ins.  Co.,  30  Fed.  359  (1887)  ;  Swenson  v.  Moline  Plow  Co.,  14  Kans 
387  (1875)  ;  Tell  v.  Gibson,  66  Cal.  247,  5  Pac.  223  (1884)  ;  State  v.  Beasley, 
57  Mo.  App.  570  (1894). 

'"^  Part  of  the  opinion  is  omitted. 


78  PARTIES 

for  the  mill  owners  on  the  Dey  race,  and  that  the  dam  thus  con- 
structed under  such  aj^rcement  had  been  maintained  for  more  than 
twenty  years  in  a  condition  to  reserve  for  the  proprietors  on  the 
Dey  race  their  one-half  of  the  water  flowing  through  said  stream, 
who  used  and  claimed  said  half  as  their  right  during  all  that  time, 
but  that  the  defendant  corporation  which  has  since  acquired  rights 
upon  the  Sackett  &  Bascom  race  has  wrongfully  raised  the  dam  serv- 
ing the  Sackett  &  Bascom  race  to  such  an  extent  that  more  than 
one-half  of  the  water  is  now  diverted  into  the  Sackett  &  Bascom 
race,  thus  depriving  the  plaintiff  and  the  other  proprietors  on  the 
Dey  race  of  their  due  proportion  of  said  water;  and  the  plaintiff 
demands  judgment  that  the  defendant  be  required  to  restore  the  dam 
to  its  former  condition,  and  be  enjoined  from  interfering  with  the 
due  and  accustomed  flow  of  water  into  the  Dey  race,  and  that  the 
plaintifi'  have  such  damage  as  it  has  incurred  by  reason  of  the 
wrongful  act  of  the  defendant. 

The  defendant  challenges  the  right  to  the  plaintiff  under  the 
facts  stated  to  maintain  an  action  for  himself  and  other  proprietors 
of  water  rights  injuriously  affected  by  the  act  complained  of. 

Section  448  of  the  Code  of  Civil  Procedure  provides  that  all 
persons  united  in  interest  must  be  joined  as  plaintiffs  or  defendants, 
except  as  otherwise  prescribed,  but  also  states  that  "where  the 
question  is  one  of  a  common  or  general  interest  of  many  persons 
*  *  *  one  or  more  may  sue  *  '''■  *  for  the  benefit  of  all." 
But  in  this  respect  the  defendant  urges  first  that  the  subject  matter 
of  this  action  does  not  involve  a  question  of  interest  common  or 
general  to  the  owners  in  severalty  of  water  rights  on  the  Dey  race 
in  the  sense  in  which  those  words  are  used  in  section  448,  and  also 
that  it  does  not  appear  that  there  are  "many  persons"  interested  in  the 
question ;  but  as  to  the  interest  which  the  Dey  race  proprietors, 
holding  their  respective  lands  in  severalty,  have  in  common  or  in 
general  respecting  the  invasion  of  their  respective  rights  by  the 
wrongful  act  of  the  defendant  in  cutting  off  their  common  source 
of  supply,  it  would  seem  to  be  clear  that  that  interest  in  the  subject- 
matter  of  this  action  and  in  the  relief  sought  is  of  a  kind  which 
would  authorize  them  all  to  join  as  plaintiffs,  if  that  method  were 
chosen,  or  each  proprietor  could  sue  alone;  and  one  can  sue  for 
all,  provided  the  other  condition  named  in  section  448  requisite  to  the 
bringing  of  such  a  representative  action  is  fulfilled,  viz. :  that  "many 
persons"  are  so  interested.  Lawrence  v.  Whitney,  115  N.  Y.  410; 
Strohel  v.  Kerr  Salt  Co.,  164  N.  Y.  303;  Pom.  Code  Rem.  (4th  ed.), 
§§  183,  289,  old  Nos.  269,  392.  In  respect  to  tlie  number  of  persons 
interested,  the  complaint  does  not  state  how  many  other  owners  of 
water  privileges  there  are  on  the  Dey  race.  It  does  state  that  there 
are  "others,"  which  would  mean  two,  at  least.  In  its  demurrer  in 
this  respect  the  defendant  incorporates  the  statem.ent  that  there  are 
three  other  separate  proprietors  of  water  rights  on  the  Dey  race, 
naming  them.  It  was  held,  upon  demurrer,  after  a  review  of  many 
authorities,  in  Hilton  Bridge  Construction  Co.  v.  Foster,  26  Misc. 
Rep.  338,  that,  where  the  question  was  one  of  common  (but  not 
joint)  interest  to  the  three  persons,  one  of  them  might  sue  for  the 


CLIMAX  SPECIALTY  CO.  V.  SENECA  BUTTON  CO.  79 

benefit  of  himself  and  the  others  under  section  448  above  quoted,  the 
quahty  of  the  interest  and  not  the  number  interested  being  the 
controlhng  feature;  and  that  construction  of  the  expression  "many 
persons"  was  sustained  upon  appeal  by  the  Appellate  Division  of 
the  Third  Department  (42  App.  Div.  630)  ;  and,  although  it  would 
seem  at  first  sight  that  a  condition  requiring  many  persons  is  hardly 
satisfied  by  three,  nevertheless  in  respect  to  this  particular  section 
that  interpretation  seems  to  be  settled.  The  case  of  Baer  v.  Amer- 
ican Rapid  TelegrapJi  Co.  (36  Hun  400),  cited  by  defendant's  coun- 
sel, is  not  in  conflict.  That  was  an  action  brought  to  remove  trustees 
appointed  for  five  persons  under  a  joint  agreement,  and  the  plain- 
tiff, one  of  the  five,  did  not  make  the  other  four  parties,  but  stated 
in  his  complaint  that  he  brought  the  action  on  behalf  of  himself  and 
the  others  if  they  chose  to  come  in;  and  it  was  held  that  the  trustees 
could  not  be  removed  without  making  all  of  the  five  beneficiaries 
parties,  as  each  of  them  had  an  interest  in  the  maintenance  of  the 
trust  which  could  not  be  adjudicated  upon  and  determined  without 
his  presence  as  a  party.  Such  a  case  is  not  analagous  to  the  one  at 
bar,  where  the  plaintifi^  could  maintain  a  perfect  action  and  obtain 
a  judgment  adequate  to  his  own  needs  without  bringing  in  the  other 
proprietors  holding  distinct  water  rights  and  a  similar  cause  of 
action. 

Demurrer  to  complaint  overruled. ^^ 


^'^  For  the  history  of  this  provision  of  the  code  see  McKenzie  v.  L.  Amou- 
reux,  II  Barb.  (N.  Y.)  516  (1851)  ;  Piatt  v.  Colvin,  50  Ohio  St.  703  (1893)- 
The  English  rule  is,  "where  there  are  numerous  persons  having  the  same 
interest  in  one  cause  or  matter,  one  or  more  of  such  persons  may  sue  or  be 
sued,  or  may  be  authorized  by  the  court  or  a  judge  to  defend  in  such  cause 
or  matter,  on  behalf  or  for  the  benefit  of  all  persons  so  interested."  Order 
XVI,  rule  9,  Duke  of  Bedford  v.  Ellis,  L.  R.  (1901)  App.  C.  i;  Taft  Vale 
Railway  Co.  v.  Amalgamated  Society  R.  S.,  L.  R.  (1901)  App.  C.  426.  Com- 
pare Markt  V.  Knight  S.  Co.,  103  L.  T.  (N.  S.)  369  (1910). 

The  code  permits  one  or  more  to  sue  or  defend  for  all  (i)  where  the 
question  is  one  of  common  or  general  interest  to  many;  (2)  where  the 
parties  are  numerous  and  it  is  impracticable  to  bring  them  all  before_  the 
Court.  The  principal  case  illustrates  the  first  class  as  well  as  McKenzie  v. 
L.  Amoiireux,  11  Barb.  (N.  Y.)  516  (1851)  ;  Farman  v.  Barnum,  2  How.  Pr. 
(N.  S.)  (N.  Y.)  396  (1885);  Dumont  v.  Peet,  152  Iowa  524  (1911)  ; 
Kelly  V.  Tiner,  91  S.  Car.  41  (1911)  ;  East  Atlantic  Land  Co.  v.  Mower,  138 
Ga.  380  (1912)  ;  Greer  v.  Smith,  155  App.  Div.  (N.  Y.)  420  (1913)  ;  Whit- 
more  V.  Water  Co.,  158  App.  Div.  (N.  Y.)  178  (1913)- 

In  the  second  class  of  cases  the  courts  do  not  seem  to  have  laid  down 
any  positive  rule  as  to  what  will  be  regarded  as  an  impracticable  number 
of  parties.  Compare  George  v.  Benjamin,  100  Wis.  622  (1898)  with  Hodges 
v.  Nalty,  104  Wis.  464  (1899),  and  see  Bird  v.  Lanphear,  11  App.  Div.  (N. 
Y.)  613  (1896)  ;  Brainerd  v.  Bertram,  5  Abb.  N.  Cas.  (N.  Y.)  102  (1878)  ; 
Gnffanti  v.  National  Surety  Co.,  ip6  N.  Y.  452  (1909)  ;  Tobin  v.  Portland  Mills 
Co.,  41  Ore.  269  (1902)  ;  Frederick  v.  Douglas  County,  96  Wis.  411  (1897)  ; 
Bronson  v.  Wilmington  L.  I.  Co.,  85  N.  Car.  411  (1881)  ;  Whaley  v.  Ratcliff, 
no  Ky.  154  (1901)  ;  Penny  v.  Central  Coal  &  Coke  Co.,  138  Fed.  769  (1905)- 
See  for  the  equity  rule,  Scott  v.  Donald,  165  U.  S.  107  (1897).  As  to  the  right 
of  the  plaintiff  in  a  representative  action  to  control  the  suit,  see  Hirshfield 
v.  Fitzgerald,  157  N.  Y.  166  (1898)  ;  Salisbury  v.  Binghainton  Publishing  Co., 
92  Sup.  Ct.   (N.  Y.)  99  (1895). 


8o  PARTIES 

(b)  Defendants. 

NATIONAL  BANK  OF  PHOENIXVILLE  v.  BUCKWALTER. 

Supreme  Court  of  Pennsylvania,  1906. 

214  Pa.  289. 

Appeal  of  plaintifif  from  an  order  of  the  Common  Pleas  of 
Chester  County,  January  Term,  1905,  No.  73,  refusing  to  take  off 
a  nonsuit  in  the  case  of  The  National  Bank  of  Phoenixville  v.  E.  L. 
Buckzvalter  et  al. 

Assumpsit  on  a  promissory  note.  Before  Hemphill,  P.  J. 

At  the  trial  the  court  entered  a  compulsory  nonsuit.  On  a  mo- 
tion to  take  off  the  nonsuit  Hemphill,  P.  J.,  filed  the  following 
opinion : 

Upon  the  trial  of  this  case  a  nonsuit  was  entered  because  of  the 
misjoinder  of  the  parties  defendant.  The  obligation  upon  which 
suit  was  brought  read  as  follows : 

"$3,500.  Phoenixville,  Pa.,  January   11,   1902. 

"Six  months  after  date  we  promise  to  pay  to  the  order  of  the 
Tuxedo  Pottery  Company  of  Phoenixville,  Pa.,  at  the  National 
Bank  of  Phoenixville,  thirty-five  hundred  dollars,  without  defalca- 
tion, value  received. 

"It  is  agreed  and  distinctly  understood,  that  each  of  the  under- 
signed is  to  be  liable  for  only  one-tenth  of  the  above  amount,  viz: 
three  hundred  and  fifty  dollars  ($350).  This  obligation  is  given  as 
collateral  security  for  notes  discounted  by  said  bank  for  said  Pot- 
tery Company  or  any  renewals  thereof  to  an  amount  not  exceeding 
$3,500,  and  to  remain  in  force  as  long  as  any  of  said  notes  are 
unpaid." 

Then  follow  the  signatures  of  E.  L.  Buckwalter  and  nine  others, 
all  of  whom  were  sued  jointly  in  this  action. 

The  general  rule  of  law  is  thus  stated  in  i  Parsons  on  Contracts, 
p.  II :  "Whenever  an  obligation  is  undertaken  by  two  or  more  or  a 
right  given  to  two  or  more,  it  is  the  general  presumption  of  law  that 
it  is  a  joint  obligation  or  right.  Words  of  express  joinder  are  not 
necessary  for  this  purpose ;  but,  on  the  other  hand,  there  should  be 
words  of  severance,  in  order  to  produce  a  several  responsibility  or 
a  several  right." 

So  that  had  the  writing  terminated  with  the  words  "value  re- 
ceived," being  the  usual  formal  language  of  a  promissory  note,  the 
presumption  of  law  would  have  been  that  the  obligation  was  joint. 
But  when  further  on  it  expressly  states  that,  "it  is  agreed  and  dis- 
tinctly understood  that  each  of  the  undersigned  is  to  be  liable  for 
only  one-tenth  of  the  above  amount" — $350— these  are  words  of 
severance  and  make  the  responsibility  of  the  signers  several  and  not 
joint. 

Consequently  they  could  not  be  held  liable  in  the  present  suit,  as 
a  verdict  and  judgment  for  the  full  amount,  $3,500,  against  each  and 


NATIONAL  BANK  V.  BUCKW ALTER  Ol 

all,  while  the  liability  of  each  is  distinctly  stated  to  be  but  the  one- 
tenth  of  that  sum.  Again,  if  this  were  a  joint  obligation  and  nine 
of  the  obligors  should  become  insolvent,  the  remaining  obligor  would 
be  responsible  for  the  whole  amount,"  which  would  be  contrary  to 
the  agreement. 

A  case  directly  in  point  is  Costigan  v.  Liint  (104  Mass.  217), 
where  Costigan  agreed  to  build  a  boat  for  Lunt  and  Cummings  for 
a  certain  sum,  each  to  pay  his  one-half;  and  it  was  held  that  the 
contract  was  not  joint  but  several,  the  court  saying:  "His  contract 
was  to  build  a  boat  for  them,  and  when  finished  it  was  to  belong  to 
them  as  tenants  in  common.  But  their  promise  to  pay  for  it  is  sev- 
eral and  not  joint.  It  is  true  that  they  expressed  themselves  in  the 
plural  number  and  use  the  expression,  'we  will  pay',  in  reference  to 
the  several  installments  that  were  to  become  payable  at  various 
stages  and  upon  the  final  completion  of  the  contract.  But  the  terms 
of  this  promise  must  be  considered  as  qualified  by  the  stipulation 
that  each  of  the  defendants  is  to  pay  one-half  of  the  entire  price  in 
installments.  Taking  the  whole  instrument  together,  it  must  be  in- 
terpreted as  providing  that  each  defendant  shall  pay  one-half  of  each 
installment,  as  it  becomes  due,  and  no  more  *  *  *  It  is  very 
plain  that  no  judgment  could  be  rendered  against  the  two  jointly 
for  any  installment,  without  rendering  them  jointly  and  severally 
liable  for  the  amount  and  making  each  to  that  extent  a  surety  for 
the  other,  and  for  that  reason  that  plaintiff  is  not  entitled  to  such  a 
judgment." 

A  careful  consideration  of  the  case  and  examination  of  the  au- 
thorities has  satisfied  us  that  we  were  right  in  holding  upon  the 
trial  that  the  liability  of  the  defendants  was  several  and  not  joint, 
and  that  consequently  there  could  be  no  recovery  against  them  in 
"the  present  action.  VVe  must  therefore  refuse  to  take  off  the  non- 
suit and  dismiss  the  rule. 

Error  assigned  was  refusal  to  take  off  nonsuit. 

Per  Curiam  :  The  judgment  is  affirmed  on  the  opinion  of  the 
court  below. ^^ 


®'  Against  several  promissors  separate  actions  must  be  brought.  Livingston 
V.  Tremper,  11  Johns.  (N.  Y.)  loi  (1814)  ;  Watson  v.  Dickey,  Tappan 
(Ohio)  235  (1817)  ;  Tiittle  v.  Cooper,  10  Pick.  (Mass.)  281  (1830)  ;  Gibson  v. 
Wood,  9  Bingh.  297  (1832);  Toiirtelott  v.  Junkin,  4  Blackf.  (Ind.)  483 
(1838)  ;  Register  v.  Casperson,  3  Harr.  (Del.)  289  (1840)  ;  Fell  v.  Goslin,  7 
Exch.  185  (1852)  ;  Taylor  v.  Pierce,  43  Maine  530  (1857)  ;  Rowan_v.  Rowan, 
2Q  Pa.  181  (1857)  ;  Fau'cett  v.  Fell,  77  Pa.  308  (187^)  ;  Simmons  v.  Spencer,  3 
McCrary  (U.  S.)"48,  9'Fed.  5^1  (1882)  ;  Davis  v.  Bedford,  70  Mich.  120  (1888)  ; 
Payne  v.  Jelleff,  67  Wis.  246,  30  N.  W.  ^26  (1886)  ;  B.  &  O.  R.  Co.  v.  Ganlter, 
60  111.  App.  647  (1895)  ;  Battle  v.  Atlantic  C.  L.  R.  Co.,  132  Ga.  376  (1909)  ; 
Hough  v.  State  Bank,  55  So.  462  (Fla.  1911). 

in  many  jurisdictions  by  statute  or  code  two  or  more  persons  severally 
liable  on  the  same  written  instrument  or  obligation  may  be  included  as  de- 
fendants in  the  same  action  at  the  plaintiff's  option.  15  Encyc.  o£  PI.  &  Pr. 
741;  Pomeroy's  Code  Remedies  (4th  ed.),  p.  393  et  seq. ;  Costigan  v.  Lunt, 
104  Mass.  217  (1870);  Champlin  v.  Sperling,  84  Nebr.  633  (1909);  N.  Y. 
Code  Civ.  Proc,  §  454;  New  Jersey  Practice  Act  of  1912,  §  6. 

6 — Civ.  Proc. 


Sj  parties 

BRAGG  V.  WETZEL.  r 

Supreme  Court  of  Indiana,  1839. 
5  Black f.  (Ind.)  95. 

Error  to  the  Union  Circuit  Court. 

Blackford,  J. — This  was  an  action  of  debt  for  money  lent, 
brought  by  Zacheus  Wetzel  against  Wilson  Bragg.  The  suit  orig- 
inated before  a  justice  of  the  peace.  The  justice  gave  judgment  for 
the  plaintiff,  and  the  defendant  appealed. 

In  the  circuit  court,  the  defendant  moved  to  dismiss  the  cause, 
on  the  ground  that  one  Smith  ought  to  have  been  joined  as  a  de- 
fendant in  the  suit.  The  motion  was  overruled.  The  cause  was 
submitted  to  the  court,  and  a  judgment  rendered  for  the  plaintiff. 

The  writ  issued  against  Bragg  alone.  The  declaration  is  as  fol- 
lows:— "The  plaintiff"  complains  of  Wilson  Bragg  and  Seneca 
Smith,  partners,  trading  under  the  firm  name  of  Bragg  &  Smith, 
of  a  plea  that  they  render  unto  him  one  hundred  dollars,  which 
to  him  they  owe,  and  from  him  unjustly  detain;  for  that  whereas 
the  defendants,  heretofore,  to  wit,  on  the  27th  day  of  June,  1837, 
at,  etc.,  were  justly  indebted  to  the  plaintiff  in  the  sum  of  one  hun- 
dred dollars,  for  so  much  money  lent  to  the  defendants  by  the 
plaintiff,  and  at  their  special  instance  and  request;  yet  the  defend- 
ants, though  often  requested,  have  not,  nor  has  either  of  them,  paid 
the  said  sum  of  money  or  any  part  thereof  to  the  plaintiff;  but  to  pay 
the  same  and  every  part  thereof,  the  defendants  have  at  all  times 
refused,  and  still  do  refuse,  to  the  damage,"  etc. 

The  plaintiff  here  shows  by  his  declaration,  that  Smith,  who  is 
not  sued,  is  a  joint  party  to  the  contract  with  the  defendant,  and 
that  Smith  is  living.  It  is  impossible,  under  these  circumstances, 
that  the  plaintiff  can  recover.    It  is  true,  that  since  the  case  of  Rice 

(V.  Shute  (5  Burrows  261 1),  the  facts  that  tliere  is  a  joint  contractor 
not  sued,  and  that  he  still  is  alive,  are  generally  required  to  be 
pleaded  in  abatement ;  but  that  rule  has  no  application  to  cases  like 
■  the  one  before  us.  Here  the  plaintiff,  in  his  declaration,  admits 
those  facts,  and  shows  that  he  has  no  right  to  sue  the  defendant 
alone.  The  suit  should  have  been  dismissed.  The  nonjoinder,  in 
\such  a  case  as  this,  mav  be  taken  advantage  of  on  a  motion  in  arrest 
/of  judgment,  i  Saund.  291,  b,  note  4;  or  it  may  be  assigned  for 
(error,    i  Chitty's  Plead.  53. 

The  judgment  is  reversed,  and  the  proceedings  subsequent  to  the 
motion  to  dismiss  the  cause  set  aside,  with  costs. ^^ 


"Accord:  Cabell  v.  Vaughan,  i  Saund.  291  (1670);  Byers  v.  Dohey,  I 
H.  Bl.  236  (1789)  ;  Pike  v.  Dashiell,  7  H.  &  J.  466  (1824)  ;  Gilman  v.  Rives, 
10  Pet.  CU.  S.)  298,  9  L.  ed.  432  (1836)  ;  Needham  v.  Heath,  17  Vt.  223  (1845)  ; 
FJkin  V.  Moore,  613  B.  Mon.  (Ky.)  462  (1846)  ;  Page  v.  Brant,  18  111.  37 
(1856)  :  Philadelphia  v.  Reeves,  48  Pa.  472  (18155)  :  Searles  v.  Reed,  63  Mich. 
485,  29  N.  W.  854T1886)  ;  Smith  v.  Miller,  49  TTTJ.  L  521,  13  Atl.  39  (1887). 
So,  also,  under  the  Codes  joint  promissors  must  be  united  as  defendants, 
Woostcr  V.  Chamhcrlin,  28  Barb.   (N.  Y.)  602   (1858);   Tinkum  v.  O'Neale, 


BLESSING  V.   MC  LINDEN  83 

CHARLES  A.  BLESSING  v.  JAMES  McLINDEN. 

Court  of  Errors  and  Appeals  of  New  Jersey,  191  i. 

81  N.  J.  L.  379^ 

Pitney,  Chancellor:  The  record  shows  that  Blessing,  now 
defendant  in  error,  commenced  suit  in  the  Cape  May  Circuit  Court 
against  WilHam  H.  Quigg  and  James  McLinden  (the  latter  now 
plaintiff  in  error),  to  recover  the  amount  due  upon  a  judgment 
theretofore  rendered  against  them  as  co-partners  in  a  court  of  rec- 
ord of  the  State  of  Pennsylvania.  Summons  against  both  defendants 
were  issued  to  the  sheriff  of  the  county  of  Cape  May,  and  to  it  the 
declaration  was  annexed  as  permitted  by  the  practice  act.  Pamph. 
L.  1903,  p.  564,  95.  The  sheriff  returned  that  the  summons  and 
declaration  were  served  personally  upon  McLinden,  and  that  Quigg 

5  Nev.  93  (1869)  ;  Bledsoe  v.  Irvin,  35  Ind.  293  (1871)  ;  Jones  v.  Langhorn, 
19  Colo.  206,  34  Pac.  997  (1893)  ;  Cox  v.  Gille  Hardware  &  Iron  Co.,  8  Okla. 
483,  58  Pac.  645  (1899)  ;  Sharpe  v.  Baker,  99  N.  E.  44  (Ind.  App.  1912) 
except  in  those  states  which  have  abolished  joint  contract  liability  or  have 
adopted  statutory  modifications  of  the  common-law  procedure.  Pomeroy's 
Code  Remedies  (4th  ed.)  p.  288;  15  Encyc.  PI.  &  Pr.  740;  McKee  v.  Griffin,  60 
Ala.  427  (1877)  ;  Morgan  v.  Brack,  104  Minn.  247  (1908). 

Exceptions  to  the  rule  are  recognized  in  some  cases,  as  where  one  of 
the  parties  is  an  infant,  married  woman  or  bankrupt.  Dicey  on  Parties  (2d 
ed.)  249-51 ;  Chandler  v.  Parkes,  i  Esp.  N.  P.  76  (1800)  ;  Hartness  v.  Thomp- 
son, 5  Johns.  (N.  Y.)  160  (1809);  Robertson  v.  Smith,  18  Johns.  (N.  Y.) 
459,  9  Am.  Dec.  22y  (1821)  ;  Woodward  v.  Newhall,  i  Pick.  (Mass.)  500 
(1823).  But  the  practice  differs  as  to  whether  the  party  under  disability 
should  be  omitted  in  the  first  place,  or  joined  with  the  right  to  discontinue 
as  to  a  defendant  pleading  a  personal  discharge.  Goodhue  v.  Luce,  82  Maine 
222,  19  Atl.  440  (1889)  ;  Slocum  v.  Hooker,  13  Barb.  (N.  Y.)  536  (1852). 

At  common  law  if  a  party  to  a  joint  contract  died,  his  personal  repre- 
sentatives could  not  be  sued  with  the  survivors,  the  latter  were  sued  alone. 
Grant  v.  Shurter,  i  Wend.  (N.  Y.)  148  (1828)  ;  Burgoyne  v.  Ohio  L.  I.  &  T. 
Co.,  5  Ohio  St.  586  (1855)  ;  May  v.  Hanson,  6  Cal.  642  (1856)  ;  Fisher  v. 
Allen,  36  N.  J.  L.  203  (1873)  ;  Livermore  v.  Bushell,  5  Hun  (N.  Y.)  285 
(1875)  ;  New  Haven  &  North  Hampton  Co.  v.  Hay  den,  119  Mass.  361 
(1876);  Reed  v.  Summers,  79  Ala.  522  (i88q)  :  Githers  v.  Clarke,  i.s8_Pa_. 
616  (1893)  \  En^mim£!LJ^^_Finkey^S  Pa.  P.  R.  358_(_i89^)-  ^"  the  d^h  of 
the  last  survivor  the  action  was  brought  agamst^his  representatives  alone. 
Calder  v.  Rutherford,  3  Br.  &  Bingh.  302  (1822).  Relief  if  necessary  was 
afforded  in  chancery.  Burgoyne  v.  Ohio  L.  I.  Co.,  5  Ohio  St.  586  (1855). 
Compare  United  States  v.  Price,  g  How.  (U.  S.)  83,  13  L.  ed.  56  (1850). 
The  rule  has  been  modified  by  statute  in  many  states.  See  Bownign's_admr\ 
v._Kistler_,Z2>  Pa.  106  (1859)  ;  Taylor  v.  Taylor,  5  Hump.  (Tenn.)  no  (1844)  ; 
Potts  v.  Dounce,  173  N.  Y^  335  (1903)  ;  Hogan  v.  Sullivan,  79  Vt.  36,  64  Atl. 
234  (1905)  ;  Lee  v.  Blodget,  214  Mass.  374  (1913). 

Where  a  joint  debtor  dies  after  suit  is  brought,  statutes  in  most  jurisdic- 
tions provide  for  continuing  the  action  against  the  personal  representatives. 
In  Pennsylvania  under  the  act  of  March  22,  1861  (P.  L.  186)  the  plaintiff 
may  bring  in  the  personal  representatives  and  proceed  to  judgment  against 
them  and  the  survivors,  Dinc/man  v.  Am.sink.  77  Pa.  114  (1875),  or  he  may 
continue  the  action  against  the  survivors- alone,  Ash  v.  GuJe,  97  Pa.  40.^ 
(1881).  See  N.  Y.  Code  Civ.  Proc,  §  758;  Gardner  v.  Walker,  22"  How. 
Pr.  405  (1861);  Union  Bank  v.  Mott,  27  N.  Y.  633  (1863);  Mulligan  v. 
O'Brien,  53  Misc.  (N.  Y.)  4  (1907),  affirmed  119  App.  Div.  (N.  Y.)  355 
(1907).  See  also  Thompson  v.  Johnsons,  40  N.  J.  L.  220  (1878);  Revised 
Statutes  of  United  States,  §  956;  Moses  v.   Wooster,  115  U.   S.  285    (1885). 

°°  Only  extracts  from  the  chancellor's  opinion  are  printed. 


S4  PARTIES 

could  not  he  found  in  his  county,  and  according  to  the  information 
and  hehef  of  the  sheriiY  was  a  resident  of  the  State  of  Pennsylvania. 

The  defendant,  McLinden,  appeared,  and  filed  certain  pleas, 
which,  on  motion  of  the  plaintiff,  were  struck  out  upon  the  ground 
that  tliey  were  sham  and  frivolous  and  did  not  set  up  any  defense 
to  the  action. 

Judgment  by  default  was  thereupon  entered  in  behalf  of  the 
plaintiff,  and  against  McLinden  alone  as  defendant,  for  the  amount 
claimed  to  be  due  upon  the  Pennsylvania  judgment,  with  costs. 

The  grounds  relied  upon  for  reversal  are — first,  that  the  circuit 
court  erred  in  striking  out  the  pleas ;  and,  secondly,  that  the  court 
erred  in  rendering  judgment  against  the  defendant,  McLinden, 
alone,  whereas  it  is  insisted  that  under  the  "Act  concerning  obliga- 
tions", approved  March  2j,  1874  (Gen.  Stat.,  p.  2336,  §  2)"°,  the 
judgment,  if  any  judgment  was  law^ful,  should  have  been  against 
both  Quigg  and  McLinden  as  co-partners. 

The  old  I'lnglish  practice  respecting  actions  against  joint  debtors, 
some  only  of  whom  could  be  served  with  process,  was  to  proceed 
to  outlawry  against  the  absent  or  absconding  defendant,  and  having 
done  tliis  to  prosecute  the  action  against  the  defendant  who  was 
served,  declaring  against  him  alone  upon  a  joint  contract  made  by 
him  and  the  absentee,  i  Tidd  Pr.  (3d  Am.  from  9th  London  ed.) 
♦130,  131;  I  Chit.  PI.  (13th  Am.  from  6th  London  ed.)  *42;  2 
Id.  *8. 

But  this  practice  did  not  rest  upon  the  ground  that  the  joint  con- 
tractor, who  was  within  the  jurisdiction,  had  any  right  to  have  his 
fellow  joined  as  defendant  if  the  latter  were  without  the  jurisdic- 
tion. The  law  did  not  deny  a  recovery  against  one  joint  contractor 
because  his  co-contractor  could  not  be  served  with  process.  The 
nonjoinder  of  one  of  several  joint  contractors  could  be  availed  of 
only  by  plea  in  abatement,  and  such  plea  must  inform  the  plaintiff 
of  the  names  of  the  parties  not  joined,  and  must  state  that  they  were 
still  living  unless  this  appeared  on  the  face  of  the  declaration.  Rice 
v.  Shute,  Burr.  261 1;  i  Smith  Lead.  Cas.  (H.  &  W.  ed.)  *645  and 
notes ;  i  Chit.  PI.  *43,  46 ;  2  Id.  *90i ;  Mershon  v.  Hohensack,  2 
Zab.  372,  379;  3  Id.  580;  Lieherman  v.  Brothers,  26  Vroom  379; 
Die.  Part.  11,  12. 

Under  the  ancient  practice,  a  plaintiff'  who  commenced  his  ac- 
tion against  one  only  of  two  joint  obligors,  where  the  other  resided 
beyond  seas,  subjected  himself  to  the  risk  that  the  action  might  be 
abated  and  he  be  put  to  the  cost  and  delay  of  a  new  action  with  pro- 
ceedings for  outlawry.  It  was  principally  in  order  to  avoid  this 
risk,  and  not  because  of  any  apprehension  that  the  right  of  action 
against  the  resident  debtor  would  otherwise  be  in  jeopardy,  that  a 


"Re-enacting  the  act  of  1771  (Allen  353)  as  revised  by  the  act  of  1782 
(Wils.  311)  which,  substantially  provided  that  where  joint  debtors  were  sued 
judgment  might  be  taken  against  the  ones  served  and  also  against  the  others 
not  served.  The  New  Jersey  practice  act  of  1912,  sec.  9,  provides :  "No  ac- 
tion shall  be  defeated  by  the  nonjoinder  or  misjoinder  of  parties.  New  par- 
ties may  be  added  and  parties  misjoined  may  be  dropped,  by  order  of  the 
court,  at  any  stage  of  the  cause,  as  the  ends  of  justice  may  require." 


BLESSING  v.  MC  LINDEN  85 

prudent  plaintiff  instituted  his  suit  against  both  joint  debtors  and 
took  proceedings  for  outlawry,  in  the  first  instance,  if  one  of  the 
joint  debtors  was  absent  or  absconding.  In  some  cases,  no  doubt,  it 
was  deemed  important  to  join  the  absentee  in  order  either  to  en- 
force a  forfeiture  of  his  property  or  to  avoid  waiving  the  right  to 
proceed  against  him  in  a  subsequent  action.  See  i  Chit.  PI.  *46; 
per  Voltman,  J.,  in  JoU  v.  Lord  Curzon,  4  Man.  Gr.  &  S.  (C.  B.) 

255- 

The  English  practice  was  amended  by  statute  3  and  4  William 
IV,  ch.  42,  §  8,  which  required  that  a  plea  in  abatement  for  non- 
joinder of  a  defendant  should  be  accompanied  by  an  affidavit  stat- 
ing the  residence  in  England  of  the  omitted  defendant  ( i  Chit.  PI. 
*46),  the  practical  effect  of  which  was  to  prevent  the  resident 
debtor  from  objecting  to  the  nonjoinder  of  his  co-obligor  unless  the 
latter  resided  within  the  jurisdiction.  Die.  Part.,  rule  49,  230,  232. 
And  see  our  Practice  act,  section  38,  Pamph.  L.,  1903,  p.  545. 

In  our  colonial  times,  proceedings  to  outlawry  not  being  in  use 
here,  the  doubt  arose  that  is  referred  to  in  the  preamble  of  our  act 
of  1771,  which  was  solved  for  this  colony  by  requiring  the  resident 
debtor  to  answer,  and  permitting  judgment  to  be  taken  against  him 
and  the  nonresident  together.  (Pennsylvania  adopted  the  simpler 
solution  of  holding  that  as  there  was  no  process  of  outlawry  in  civil 
actions,  the  return  of  non  est  inventus  had  the  same  eft'ect.^^  Dill- 
man  v.  Shults,  5  S.  &  R.  35.)  The  effect  of  our  act  was  to  prevent 
the  abatement  of  the  action  for  failure  to  proceed  to  outlawry 
against  the  nonresident  joint  debtor,  and  to  provide  that  the  plaintiff 
might  take  judgment  against  him  as  well  as  against  the  debtor  who 
was  served  with  process. 

Even  prior  to  the  adoption  of  the  fourteenth  amendment,  how- 
ever, it  was  well  settled  that  if  one  of  the  debtors  was  not  within  the 
state,  not  served  with  process,  and  did  not  voluntarily  appear,  the 
judgment  could  not  be  enforced  against  him  in  any  other  jurisdic- 
tion, even  though  by  the  lex  loci  a  service  on  the  co-obligor  resident 
within  the  jurisdiction  were  sufficient  to  authorize  a  judgment 
against  all.  D'Arcy  v.  Ketcham,  11  How.  165;  Thompson  v.  Whit- 
man, 18  Wall.  457;  Knowles  v.  Gas  Light  and  Coke  Co.,  19  Wall. 
58;  Hall  v.  Lanning,  91  U.  S.  160;  Hanley  v.  Donoghiie,  116  U.  S. 
i;  Renaud  v.  Abbott,  116  U.  S.  2'/'/;  Phelps  v.  Brewer,  9  Cush. 
(Mass.)  390. 

D'Arcy  v.  Ketcham,  11  How.  171,  brought  under  consideration 
a  New  York  statute  that  provided  that  "where  joint  debtors  are  sued, 
and  one  is  brought  into  court  on  process,  he  shall  answer  the  plain- 
tiff; and  if  judgment  shall  pass  for  the  plaintiff,  he  shall  have  judg- 
ment and  execution  not  only  against  the  party  brought  into  court, 
but  also  against  other  joint  debtors  named  in  the  original  process, 
in  the  same  manner  as  if  they  had  all  been  taken  and  brought  into 
court  by  virtue  of  such  process;  but  it  shall  not  be  lawful  to  issue 
or  to  execute  any  such  execution  against  the  body  or  against  the  sole 
property  of  any  person  not  brought  into  court."   By  the  New  York 

•*  See  10  P.  &  L.  Dig.  of  Dec.  15919,  16  P.  &  L.  Dig.  of  Dec.  27807. 


86  PARTIKS 

courts  it  had  been  liekl  that  such  judgment  was  vaHd  and  binding 
on  an  absent  defendant  as  prima  facie  evidence  of  the  debt,  reserv- 
ing to  him  the  right  to  enter  again  into  the  merits  and  show  that  he 
ought  not  tt)  have  been  cliarged.  It  was  held  by  the  Supreme  Court  of 
the  United  States  that  the  statute,  and  the  judgment  founded  upon 
it.  were  not  bintling  upon  a  citizen  of  Louisiana  not  served  with 
process  in  New  York;  that  the  judgment  was  not  even  prima  facie 
evidence  in  a  Louisiana  suit,  and  not  entitled  to  any  faith  or  credit 
outside  of  the  state  in  which  it  was  rendered. 

Until  the  adoption  of  the  fourteenth  amendment,  however,  it  was 
commonly  held  that  a  state  might  authorize  a  personal  judgment, 
good  within  its  own  territory,  against  one  who  had  not  been  sub- 
jected to  the  process  of  its  courts  by  service  of  such  process  within 
the  jurisdiction. 

But  by  that  amendment  it  was  (among  other  things)  provided 
that  no  state  should  deprive  any  person  of  life,  liberty  or  property 
without  due  process  of  law,  and  this  was  construed  by  the  Supreme 
Court  of  the  United  States  in  Pemioyer  v.  Nejf,  95  \J.  S.  714,  733, 
to  deprive  a  personal  judgment  of  all  validity,  either  within  or  with- 
out the  state  that  rendered  it,  if  it  were  rendered  by  a  state  court  in 
an  action  upon  a  money  demand  against  a  nonresident  served  by  a 
I)ublication  of  notice  or  summons,  but  upon  whom  no  personal  serv- 
ice of  process  within  the  state  had  been  made,  and  who  had  not  ap- 
peared to  the  action. 

The  result  is  that  where  one  of  two  joint  debtors  resides  within 
this  jurisdiction  and  the  other  is  a  nonresident,  and  is  not  found  to 
be  served  with  process  in  this  state,  the  plaintiff  may  have  his  judg- 
ment against  the  resident  debtor,  omitting  the  other.  This  was  tlie 
practical  ovitcome,  in  ordinary  cases,  under  the  common-law  prac- 
tice of  outlawry. 

We  find  it  unnecessary  to  consider  whether  the  principle  of  the 
decision  in  Pennoyer  v.  A^'^'j^  would  invalidate  a  judgment  rendered 
in  conformity  to  our  Joint  Debtor's  Act  against  one  of  the  several 
joint  debtors  (the  others  only  being  served  with  process),  he  being 
a  citizen  and  resident  of  this  state.  See  Moulin  v.  Insurance  Com- 
pany, 4  Zab.  249,  per  Chief  Justice  Green.  That  precise  question 
does  not  require  decision  in  order  that  the  present  case  may  be  dis- 
posed of.  For  we  may  properly  make,  and  ought  to  make,  every 
reasonable  intendment  in  favor  of  the  validity  of  the  judgment 
under  review,  and  therefore  may  legitimately  assume,  if  necessary, 
that  the  defendant  Quigg  was  not  a  citizen  or  resident  of  this  state, 
and  could  not  in  any  manner  be  rendered  subject  to  its  jurisdiction. 

We,  therefore,  find  no  error  in  the  entry  of  judgment  against 
the  defendant  McLinden  alone. 

Whether  the  plaintiff,  by  taking  judgment  against  one  only  of 
the  joint  debtors,  debars  himself  from  any  future  recovery  against 
the  other,  is  a  question  that  does  not  now  concern  us.**-    There  seems 


**The  New  Jersey  Practice  Act  of  1912,  §  20,  provides:  "An  unsatisfied 
judgment  against  one  or  some  of  several  joint  contractors,  shall  not  dis- 
charge the  other  joint  contractors  from  liability  on  the  contract." 


BANGOR  BANK  V.   TREAT  87 

to  be  a  conflict  of  authority  upon  the  point.    See  Freem.  Judg.  (4th 
ed.),  231,  233;  Big.  Estop.  (5th  ed.)  104. 

The  judgment  under  review  should  be  affirmed."^ 


BANGOR  BANK  v.  TREAT.  -/^ 

Supreme  Court  of  Maine,  1829. 
6  Maine  207. 

Mellen,  C  .J. :  This  is  an  action  of  assumpsit,  and  the  declara- 
tion states  that  the  note  was  signed  by  the  defendants  and  Allen 
Oilman,  jointly  and  severally  ;~andniat  a  judgment  had  been  recov- 
ered on  the  note  against  Oilman  in  a  several  action  against  him.  The 
defendants  have  moved  in  arrest  of  judgment  on  accotmt  of  the 
joinder  of  them  in  the  present  suit.  When  three  persons  by  bond, 
covenant  or  note  jointly  and  severally  contract,  the  creditor  may 
treat  the  contract  as  joint  or  several  at  his  election;  and  may  join 
all  in  the  same  action  or  sue  each  one  severally ;  but  he  can  not, 
except  in  one  case,  sue  two  of  the  three,  because  that  is  treating  the 
contract  neither  as  joint  or  several.  But  if  one  of  the  three  be  dead, 
and  that  fact  be  averred  in  the  declaration,  the  surviving  two  may 
be  joined.  In  the  present  case  Oilman  is  living.  The  plaintiffs  con- 1 
tend  tjiaLaS- judgment  had  been  recovered  against  him,  such  judg-| 
ment  entitled  them  to  join  the  other  two  in  the  same  manner  as 
thotrgh  he  was  dead.  This  is  not  so.  Wlien  they  sued  Oilman  alone, 
tHey'elected  to  consider  the  promise  or  contract  as  several  and  hav- 
ing obtained  judgment  they  are  bound  by  such  election.  In  case  of 
death,  the  act  of  Ood  has  deprived  the  party  of  the  power  of  joining 
all  the  contractors ;  but  he  may  still  consider  the  contract  as  joint, j 
and  sue  the  surviving  two.  The  plaintiffs  have  disabled  themselves 
from  maintaining  this  action  by  their  former  one.  i  Saund.  2916.  j 
The  objection  is  good  in  arrest  of  judgment,  where  the  facts  relied 
on  by  defendants  appears  on  the  records,  as  in  the  present  case. 

Judgment  arrested.®* 


'^  See  further  Tappan  v.  Bruner,  5  Mass.  193  (1809)  ;  UjUnian  y.  Schultz, 
5_S^  R^CPa.)  \^  CiSiq)  ;  McCall  v.  Price,  1  McCord  ( STCarrrH2"TiS2  iT; 
Ivey  V.  Gamble,  7  Port.  (Ala.)  545  (1838)  ;  Dennett  v.  Chick,  2  Maine  191, 
II  Am.  Dec.  59  (1823)  ;  Merriman  v.  Barker,  121  Ind.  74,  22  N.  E.  992  (1889)  ; 
N.  Y.  Code  Civ.  Pro.,  §§  1932-33- 

^Accord:  Ward  v.  Johnson,  13  Mass.  148  (1816);  Fhonds  V.  Frederick^ 
8  Watts  (Pa-X448  .(183a}  ;  Claremont  Bank  v.  Wood,  12  Vt.  252  (1840); 
'Merrick  v.  Bank  of  Metropolis,  8  Gill.  (Md.)  59  (1849)  ;  Stearns  v.  Aguire, 
6  Cal.  176  (1836);  Moore  v.  Rogers,  19  111.  347  (1857);  Winslow  v.  Her- 
rick,  9  Mich.  380  (1861)  ;  Cunimings  v.  People,  50  111.  132  (1869)  ;  New  H. 
R.  Co.  V.  Hayden,  119  Mass.  361  (1876)  ;  Poullain  v.  Brown,  80  Ga.  27,  5  S.  E. 
107  (1887)  ;  Fay  &  Co.  v.  Jenks,  78  Mich.  312,  44  N.  W.  380  (1889)  ;  .Scanlon 
V.  People,  95  111.  App.  348  (1900)  ;  Gottfried  B.  Co.  v.  McDonald,  146  111. 
App.  601  (1909);  Goff  V.  Ladd,  161  Cal.  257  (1911).  Contra:  Glasscock 
V.  Hamilton,  62  Tex.  143   (1884).    The  dictum  of   Story,  J.,  also  contra  in 


88 


PART  IKS 


PAGE  V.  FREEMAN.  yj' 

Supreme  Court  of  Missouri,  1854. 
ig  Mo.  421. 

Scott.  J.:  This  was  an  action  lor  an  assault  and  battery.  The 
petition  stated  that  the  defendant  conspired  with,  aided  and  abetted 
a  certain  Jesse  l-^dwards  to  assault,  beat  and  otherwise  ill  treat  and 
abuse  the  plaintiff,  and  by  and  in  consequence  of  such  conspiracy, 
aiding  and  abetting  by  said  defendant,  he,  the  said  Jesse  Edwards, 
did  assault,  beat  and  otherwise  ill  treat  and  abuse  the  said  plaintiff, 
to  the  damage,  etc.  A  demurrer  was  put  in  to  this  petition,  which 
was  overruled,  and  the  defendant  answered,  denying  the  allegations 
therein  contained.  On  a  trial  of  the  issue,  there  was  a  judgment  for 
the  plaintiff  for  the  sum  of  $147.50.  Afterwards,  the  defendant 
moved  the  court  to  compel  the  plaintiff  to  elect  between  the  damages 
recovered  in  this  action,  and  tliose  recovered  against  Jesse  Edwards 
in  another  action,  for  the  same  assault  and  battery,  and  produced  a 
record  showing  a  recovery  against  Edwards  for  the  same  cause, 
for  the  sum  of  two  hundred  dollars.  This  motion  was  overruled, 
and  the  defendant  appealed."'^ 

In  case  of  a  joint  trespass,  the  plaintiff  may  sue  two  or  more  of 
them  jointly,  or  may  sue  them  separately,  and  may  recover  a  judg- 
ment against  them.  But  for  one  trespass  or  wrong  he  can  have  but 
one  satisfaction.  It  is  like  a  joint  promissory  note.  A  satisfaction 
by  one  of  the  makers  will  discharge  it.  A  trial  and  recovery  against 
one  trespasser  will  be  no  bar  to  a  trial  and  recovery  against  another. 
But  where  separate  actions  are  brought,  as  there  can  be  but  one 
satisfaction,  the  plaintiff  is  put  to  his  election  between  the  verdicts, 
and  execution  is  sued  out  accordingly.  If  the  plaintiff  has  received 
satisfaction  for  the  wrong  done  from  Edwards,  he  can  not  recover 
another  satisfaction  for  the  same  wrong.  If  he  has  put  himself  in  a 
situation  which  prevents  his  election,  it  is  his  own  act.  The  court,  in 
such  case,  would  relieve  the  defendant,  in  the  same  manner  as  would 
be  done,  should  it  be  made  to  appear  that  one  of  the  judgments  or 
executions  against  a  defendant  had  been  satisfied,  i  John.  290;  i 
Pick.  62. 


United  States  v.  Ciishman,  2  Sum.  (U.  S.)  426  (1836)  is  criticised  in  Clinton 
Bank  V.  Hart,  5  Ohio  St.  33  (1855). 

Where  one  of  the  promissors  in  a  joint  and  several  contract  dies,  sepa- 
rate actions  may  be  brought  against  each  of  the  survivors  and  the  personal 
representatives,  or,  all  the  survivors  may  be  joined,  but  a  joint  action  against 
the  survivors  and  the  personal  representatives  of  the  deceased  promissor  can 
not  be  maintained.  Grant  v.  Shurtcr,  i  Wend.  (N.  Y.)  148  (1828);  State 
Treasurer  v.  Friott,  24  Vt.  134  (1852)  ;  Morehouse  v.  Ballon,  16  Barb.  (N 
Y.)  289  (1853)  ;  May  v.  Hanson,  6  Cal.  642  (1856)  ;  Eggleston  v.  Buck,  31 
111.  254  (1863)  ;  Colt  V.  Learned,  133  Mass.  409  (1882)  ;  Seaman  v.  Slater,  18 
Fed.  485  (1883). 

"Part  of  the  opinion  is  omitted. 


LOW  V.   MUM  FORD  89 

The  other  judges  concurring,  the  judgment  will  be  reversed,  and 
the  cause  remanded,  and  the  circuit  court  directed  to  proceed  in  con- 
formity to  this  opinion."^ 


LOW  V.  MUMFORD. 

Supreme  Court  of  New  York,  1817. 

14  ]o]ms.  (AT.  F.)  426. 

In  error,  on  certiorari  to  a  justice's  court. 

The  plaintiff  in  error  brought  an  action  in  the  court  below, 
against  the  defendant  in  error,  "for  keeping  up  a  mill-dam  on  the 
Susquehanna  river,  below  the  lands  of  the  plaintiff,  whereby  the 
water  of  the  river  was  set  back  and  flowed  the  plaintiff's  lands," 
etc.  The  defendants  pleaded  in  abatement,  that  the  land  on  which 
the  mill-dam  was  erected,  and  the  mills  appurtenant  thereto,  were 
held  in  joint  tenancy  by  the  defendants,  together  with  several  other 
persons,  (naming  them),  who  were  not  made  parties  to  the  suit. 
The  plaintiff  objected  to  the  sufficiency  of  the  plea,  but  the  justice 
gave  judgment  for  the  defendants. 

Platt,  J.,  delivered  the  opinion  of  the  court.  The  general  rule 
on  this  subject  is,  that  if  several  persons  jointly  commit  a  tort,  the 
plaintiff  has  his  election  to  sue  all,  or  any  of  them,  because  a  tort  is, 
in  its  nature,  a  separate  act  of  each  individual,  and,  therefore,  in 
actions,  in  form  ex  delicto,  such  as  trespass,  trover,  or  case  for  mal- 
feasance, against  one  only,  for  a  tort  committed  by  several,  he  can 
not  plead  the  nonjoinder  of  the  others,  in  abatement  or  in  bar.    (i 


'"Accord:  Mitchell  v.  Smith,  4  Md.  403  (1853);  Daily  v.  Redfern,  i 
Mont.  467  (1872)  ;  Fleming  v.  McDonald,  50  Ind.  467,  19  Am.  Rep.  711 
(1872).  As  to  satisfaction,  see  Love  joy  v.  Murray,  3  Wall.  (U.  S.)  i,  18 
L.  ed.  129  (1865)  ;  Sessions  v.  Johnson,  95  U.  S.  347  (1877)  ;  Seitherw Phila- 
delphia Traction  Co.,  125  Pa.  St.  397,  17  Atl.  338,  4  L.  R.  A."l4rii  Am.  St. 

~905  (1889^ ;  7  .  .        .  . 

Generally,  in  actions  ex  declicto,  the  plaintiff  may  at  his  election  proceed 
against  the  joint  tortfeasors  in  one  action  or  he  may  sue  them  severally. 
"One,  or  any,  or  all  of  several  joint  wrong-doers  may  be  sued."  Dicey  on 
Parties  (2d  ed.),  p.  z^48.  Pencavin  v.  Trappin,  Latch  262;  Hardyman  v.  Whit- 
aker,  2  East  573n  (1782)  ;  Livingston  v.  Bishop,  i  Johns..  (N.  Y.)  1290,  3  Am. 
Dec.  330  (1806)  ;  Patten  v.  Gurney,  17  Mass.  182,  9  Am.  Dec.  141  (1821)  ; 
Orange  County  Bank  v.  Brown,  3  Wend.  (N.  Y.)  158  (1829)  ;  Allen  v. 
Wheatley,  3  Blackf.  (Ind.)  332  (1834)  ;  McGee  v.  Overby,  12  Ark.  164 
(1851)  ;  Klandcr^i!  McGrath.  35  Pa.  128,  78  Am.  Dec.  329  (i860)  ;  Bryant  v. 
Bigelow  Carpet  Co.,  131  Mass.  491  (18S1)  ;  Peoria  v.  Simpson,  no  111.  294 
(1884)  ;  McMullin  v.  Church,  82  Va.  501  (1886)  ;  Allison  v.  Hobbs,  96  Maine 
26,  51  Atl.  245  (1901)  ;  Mangan  v.  Hudson  R.  Tel.  Co.,  50  Misc.  (N.  Y.)  388 
(1906)  ;  Hough  v.  .Southern  R.  Co.,  144  N.  Car.  692  (1907)  ;  Tandrup  v. 
Sampsell,  234  111.  526  (1908)  ;  Gawne  v.  Bicknell,  162  Fed.  587  (1908)  ;  Gold- 
stein V.  Titnick,  59  Misc.  (N.  Y.)  516  (1908)  ;  Cole  v.  Roebling  Construction 
Co.,  156  Cal.  443  (1909)  ;  Helberg  v.  Hosmer,  143  Wis.  620  (1910)  ;  Lynch  v. 
Chicago,  152  111.  App.  160  (1909)  ;  Sparrow  v.  Bromage,  83  Conn.  27  (1910)  ; 
Johnson  Co.  v.  Philadelphia,  236  Pa.  St.  510  (1912)  ;  Webber  v.  Jonesville, 
94  b.  Car.  189  (1912)  ;  Rogers  v.  Ponet,  21  Cal.  App.  577  (1913)  ;  Chicago 
G.  IV.  R.  Co.  V.  Hulbert,  205  Fed.  248  (1913). 


90  TART  IKS 

Chilly's  rioad.  75.)  There  is  a  dislinction,  however,  in  some  cases, 
between  mere  personal  actions  of  tort,  and  snch  as  concern  real 
property  (i  Chitty  Plead.  76).  In  the  case  of  Mitchell  v.  Tarbutt, 
(5  Term  Rep.  65),  Lord  Kenyon  recognizes  this  distinction  and  says : 
"Where  there  is  any  disjiute  about  the  title  to  land,  all  the  parties 
must  be  brought  before  the  court."  A  case  in  the  year  books  (7  Hen. 
W,  8)  shows  that  a  plea  in  abatement  may  be  well  pleaded  for  this 
cause,  to  an  action  on  the  case,  for  a  tort.  An  action  of  trespass  on 
the  case  was  brought  against  the  abbot  of  Stratford,  and  the  plaintiff 
counted  that  the  defendant  held  certain  land,  by  reason  whereof 
he  ought  to  repair  a  wall  on  the  bank  of  the  Thames ;  that  the  plain- 
tiff had  lands  adjoining,  and  that  for  default  of  repairing  the  wall, 
his  meadows  were  drowned.  To  which  Skrene  said,  "It  may  be  that 
the  abbot  had  nothing  in  the  land,  by  cause  whereof  he  should  be 
charged,  but  jointly  with  others,  in  which  case  the  one  can  not  an- 
swer without  the  other." 

But  in  actions  for  torts  relating  to  lands  of  the  defendants,  there 
seems  to  be  ground  or  this  further  distinction,  viz.,  between  nui- 
sances arising  from  acts  of  malfeasance,  and  those  which  arise  from 
mere  omission,  or  nonfeasance.  The  case  of  the  abbott  of  Stratford 
w'as  that  of  a  nuisance,  arising  from  neglect  of  duty  in  not  repairing 
the  wall,  which  was  by  law  enjoined  on  the  proprietor  or  proprietors 
of  the  land  on  which  the  w^all  stood.  The  gist  of  the  action,  there- 
fore, was,  that  the  defendant  was  such  proprietor,  and  had  neglected 
a  duty  incident  to  his  title.  The  title  to  the  land,  on  which  the  nui- 
sance existed,  was,  therefore,  directly  in  question ;  for  if  the  abbot 
Avas  not  the  owner  of  the  land,  he  was  not  chargeable  with  neglect, 
nor  liable  for  the  nuisance.  But  in  this  case,  the  action  is  for  a 
nuisance  arising  from  an  act  of  misfeasance  the  "keeping  up  a  mill- 
dam  on  a  stream  below  the  plaintiff's  land."  Here  needs  no  aver- 
ment that  the  defendant  owned  the  land  on  which  the  dam  was 
kept  up.  The  title  to  that  land  can  not  come  in  question  in  this  suit, 
for  the  maintaining  such  a  dam  is  equally  a  nuisance,  and  the  de- 
fendants are  equally  liable  for  damages,  whether  the  defendants 
own  the  land  as  joint  tenants  w'ith  others,  or  Avhether  they  are  sole 
proprietors,  or  whether  they  have  any  right  whatever  in  it.  "Keep- 
ing up"  the  dam  implies  a  positive  act  of  the  defendants ;  it  is  a  mal- 
feasance, and  therefore  the  plaintiff  has  a  right  of  action  against  all 
or  any  of  the  parties  who  keep  up  that  dam.  Unless  the  title  comes 
in  question,  there  is  no  difference,  in  this  respect,  in  cases  arising 
ex  delicto,  between  actions  merely  personal,  and  those  which  con- 
cern the  realty.  The  plaintiff,  in  such  an  action,  is  always  bound  to 
join  his  cotenants,  because  his  title  must  come  in  question  as  the 
foundation  of  his  claim ;  but  he  may  sue  any  or  all  who  have  done 
the  tortious  act.  The  justice,  therefore,  erred  in  deciding  against 
the  demurrer  to  the  plea,  in  abatement,  and  the  judgment  must  be 
reversed. 

Judgment  reversed.^^ 

•"Accord:  Sumner  v.  Tileston,  4  Pick.  (Mass.)  308  (1826)  and  see 
Elliott  V.  McKay,  49  N.  Car.  59  ( 1856)  ;  Karrcn  v.  Rainey,  30  Utah  7,  83 
Pac.  2Z3  (1905)  ;  Baker  v.  Fritts,  143  111.  App.  465  (1908). 


CHAMBERLAINE  V.  WILLMORE  91 

CHAMBERLAINE  v.  WILLMORE. 

In  the  King's  Bench,  1622. 

Palmer's  Reports  313."' 

An  action  on  the  case  was  brought  against  two  for  these  words : 
"Thou  hast  stolen  plate  from  Cambridge  of  J.  S.  and  we  do  arrest 
thee  of  flat  fellony."  and  upon  the  general  issue  it  was  found  for  the 
plaintifif;  and  moved  in  arrest  of  judgment  that  it  does  not  lie 
against  the  two  jointly,  because  the  words  of  one  are  not  the  words 
of  the  other ;  but  there  should  have  been  several  actions,  just  as  two 
can  not  bring  a  joint  action  for  words.  Dy.  19.  And  so  it  was  re- 
solved by  the  court,  that  these  several  causes  could  no  more  pro- 
duce a  joint  action,  than  their  words  and  tongues  and  tort  can  be 
said  to  be  one;  and  for  this  reason  the  judgment  was  arrested  by  the 
court."^^ 


^       HENRY  NIERENBERG  AND  EMIL  ZUKUGMAN  v. 

•  JAMES  WOOD. 

Supreme  Court  of  New  Jersey,  1896. 

59  N.  J.  L.  112. 

On  certiorari  to  the  Court  of  Common  Pleas  of  Passaic  County. 

Gum  MERE,  J. :  This  action  was  brought  by  Wood,  the  plaintiff 
below,  against  the  prosecutors,  Nierenberg  and  Zukugman,  jointly, 
to  recover  compensation  for  damages  done  by  two  dogs,  one  owned 
by  Nierenberg. and  the  other  by  Zukugman,  in  trampling  down  and 
destroying  cabbage  plants,  beans,  etc.,  which  were  growing  in 
Wood's  close.  The  property  was  all  destroyed  at  the  same  time,  the 
two  dogs  uniting  in  committing  the  mischief,  and  a  judgment  was 
entered  in  the  court  below  against  the  prosecutors  by  which  each  was 
made  responsible  for  the  whole  of  the  injury  done. 


^  S.  C.  sub  nom.   Chamberlain  v.  White,  Cro.  Jac.  647. 

*° Accord:  Burcher  v.  Orchard,  Style  349  (1652)  semble ;  Glass_v,_Stew- 
art.  10  S.  &  R.  (Pa.)  222  (1823);  Webb  v.  Cecil,  9  B.  Mon.  (Ky.)  198,  48 
Am.  Dec.  42^  (1848):  Carvillv  Cochran,  i  Phil_a._XPaJ_  399  (1852)  ;  For- 
syth V.  Edminston,  6  Duer.  (JM.  Y.)  653  (i^sbY\  Bnz::ard  v.  Guest,  7  Mont; 
gomery  Co.  L.  Rep.  (Fa.)  197  (1891)  ;  Blake  v.  SlmtTT,  i9T^Tr47^(i896)  ; 
Gaftts  v.Xelgo,  125  JN.  Lar.  133,  34  S.  E.  246  (1899)  ;  Harriott  v.  Plimpton, 
166  Mass.  585,  44  N.  E.  992  (1896)  ;  Singer  M.  Co.  v.  Taylor,  150  Ala.  574 
(1907)  ;  Smith  v.  Agee,  59  So.  647  (Ala.  1912)  ;  Niinnamaker  v.  Smith,  80 
S.  E.  465  (S.  Car.  1914).  Otherwise  in  libel.  Thomas  v.  Rumsey.  6  Johns. 
(N.  Y.)  26  (1810)  ;  Miller  v.  Butler,  60  Mass.  71,  52  Am.  Dec.  768  (1850)  ; 
Leidig  v.  Bucher,  74  Pa.  65  (1873). 

Green  V.  Uavies,  182  IN.  V.  499,  75  N.  E.  536  (1905)  holds  that  if  two 
slanders  are  uttered  in  pursuance  of  a  common  agreement  between  the  par- 
ties that  such  slanders  shall  be  uttered,  tlien  each  is  jointly  liable  with  the 
other  for  the  utterance. 


92  PARTIES 

The  theory  upon  which  the  suit  was  tried  and  judgment  ren- 
dered seems  to  have  been  that,  as  the  loss  suffered  by  the  plaintiff 
was  the  result  of  the  joint  act  of  two  doi^s,  their  respective  masters 
stood  in  the  same  ])osition,  so  far  as  liability  to  respond  for  the 
damai::^e  done  was  concerned,  as  if  they  j)crsonally  had  broken  and 
entered  the  j^laintiff's  close  and  destroyed  his  growing  plants. 

But  the  reason  which  makes  one  who  personally  aids  in  or  abets 
the  wrong  done  by  another  liable  for  the  whole  amount  of  the 
injury  done,  does  not  apply  in  a  ca>se  like  that  under  consideration. 

In  the  case  of  a  joint  tort,  each  offender's  liability  arises  out  of 
tlie  fact  that  his  participation  in  the  wrongful  act  was  voluntary 
and  intentional,  and  the  law,  as  a  punishment  for  his  wrongdoing 
as  well  as  for  the  protection  of  the  rights  of  the  injured  party, 
makes  him  answerable  for  all  the  consequences  of  that  act.  But  in 
tlie  case  of  animals  which  wander  off  and  unite  in  perpetrating  mis- 
chief, there  is  no  actual  culpability  on  the  part  of  their  owners. 
Liability  in  such  a  case  only  exists  by  reason  of  the  negligence  of  the 
owners  in  permitting  their  animals  to  stray  away  and  commit  the 
depredations,  and  it  has,  therefore,  always  been  held,  when  the  ques- 
tion has  come  before  the  courts,  that  a  joint  action  will  not  lie 
against  separate  owners  of  dogs  which  unite  in  committing  mischief. 
One  of  the  earliest  cases  on  this  subject  is  Russell  v.  Tomlinson  and 
Haii'khis,  2  Conn.  206,  in  which  the  plaintiff  sought  to  hold  the  de- 
fendants jointly  liable  for  injuries  done  to  his  sheep  by  their  dogs. 
Chief  Justice  Swift,  in  delivering  the  opinion  of  the  court,  said: 
"Owners  are  responsible  for  mischief  done  by  their  dogs,  but  no 
man  can  be  liable  for  the  mischief  done  by  the  dog  of  another,  unless 
he  has  had  some  agency  in  causing  the  dog  to  do  it.  When  the 
dogs  of  several  persons  do  mischief  together,  each  owner  is  only 
liable  for  the  mischief  done  by  his  own  dog,  and  it  would  be  repug- 
nant to  the  plainest  principles  of  justice  to  say  that  the  dogs  of  dif- 
ferent persons,  by  joining  together  in  doing  mischief,  could  make 
the  owners  jointly  liable.  This  W'Ould  be  giving  them  a  power  of 
agency  which  no  animal  was  ever  supposed  to  possess." 

A  similar  view  is  expressed  in  Van  Steenburgh  v.  Tobias,  17 
Wend.  562 ;  Auchmuty  v.  Ham,  i  Denio  495 ;  Partenheimer  v.  Van 
Order,  20  Barb.  479 ;  Adams  v.  Hall,  2  Vt.  9 ;  Buddington  v.  Shearer, 
20  Pick.  477,  and  Denny  v.  Correll,  9  Ind.  73. 

Nor  does  the  fact  that  there  may  be  difficulty  in  ascertaining  the 
quantum  of  damage  done  by  each  dog  afford  any  ground  for  hold- 
ing their  owners  jointly  liable.  As  was  said  in  Van  Steenburgh  v. 
Tobias,  supra,  the  difficulty  of  such  ascertainment  is  not  an  argu- 
ment of  sufficient  strength  to  warrant  the  injustice  of  punishing  a 
man  who  is  entirely  innocent. 

The  liability  of  the  prosecutors  in  this  case,  for  the  mischief 
done  by  their  respective  dogs,  was  a  separate  and  not  a  joint  one, 
and  the  plaintiff,  in  order  to  recover  for  the  loss  vv-hich  he  had  sus- 
tained, should  have  brought  actions  against  each  of  tliem  for  so 
much  of  the  injury  as  was  caused  by  the  dog  which  he  owned.  By 
doing  so  he  would  have  been  fully  indemnified,  for  the  recovery  in 


FENEFF  V.   BOSTON  &  M.  RAILROAD  93 

an  action  against  one  owner  would  have  been  no  bar  to  the  action 
against  the  other. 

The  judgment   of   the   court, of   common   pleas   should  be   set 
aside.'^° 


ANTOINE  FENEFF  v.  BOSTON  AND  MAINE  R.\ILROAD.  ^ 

Supreme  Judicial  Court  of  Massachusetts,  1907. 
196  Mass.  575- 

Tort  for  personal  injuries  received  by  the  plaintiff  in  the  col- 
lision of  two  engines,  upon  one  of  which  he  was  riding,  in  the  yards 
of  the  New  York,  New  Haven  and  Hartford  Railroad  Company 
in  Worchester.  Writ  in  the  Superior  Court  for  the  county  of  Wor- 
chester  dated  June  13,  1906. 

It  appeared  that,  at  the  point  in  the  yards  where  the  collision 
occurred,  there  were  five  tracks,  three  of  which  were  controlled  by 
the  defendant.  New  York  Central  and  Hudson  River  Railroad  Com- 
pany, and  two  by  the  New  York,  New  Haven  and  Hartford  Com- 
pany, which  was  not  a  party  to  this  action.  Across  these  tracks  a 
switch  engine  operated  by  the  defendant,  Boston  and  Maine  Rail- 
road, ran  from  time  to  time.  Near  at  hand  was  a  switching  tower. 
No  trains  or  engines  could  pass  on  the  tracks  at  the  place  in  ques- 
tion unless  they  were  permitted  to  by  the  man  in  charge  of  the 
switching  tower.  That  man  was  an  employe  of  the  defendant.  New 
York  Central  and  Hudson  River  Railroad  Company. 

At  the  time  of  the  collision,  the  plaintiff,  under  the  circumstances 
stated  in  the  opinion,  was  riding  upon  a  passenger  engine  of  the 
New  York,  New  Haven  and  Hartford  Railroad  Company  from 
the  south  station  to  go  to  the  union  station,  when  that  engine  was 
run  into  by  a  switching  engine  of  the  defendant,  Boston  and  Maine 
Railroad.    The  plaintiff  contended  that  the  collision  occurred  be- 


'°  Accord:  Russell  v.  Tomlinson,  2  Conn.  206  (1817)  ;  Adams  v.  Hall,  2 
Vt.  9,  19  Am.  Dec.  690  (1829)  ;  Van  Steenhurgh  v.  Tobias,  17  Wend.  (N.  Y.) 
562,  31  Am.  Dec.  310  (1837);  Buddington  v.  Shearer,  20  Pick.  (Mass.)  477 
(1838)  ;  Auchmiity  v.  Ham,  i  Den.  (N.  Y.)  495  (1845)  ;  Partenheimer  v.  Van 
Oder,  20  Barb.  (N.  Y.)  479  (1855);  Denny  v.  Correll,  9  Ind.  72  (1857); 
Cogswell  v.  Mnrphy,  46  Iowa  44  (1877).  Otherwise  where  the  animals  are 
in  the  joint  possession  of  the  defendants.  Jack  v.  Hitdnall,  25  Ohio  St.  255, 
18  Am.  Rep.  298  (1874);  Ozhurn  v.  Adams,  70  111.  291  (1873)  and  see  Mc- 
Clain  V.  Lewistown,  etc.,  Assn.,  ly  Idaho  63  (1909).  See  also,  for  the  princi- 
ple that  for  separate  torts  separate  actions  must  be  brought,  Blaisdcll  v. 
Heister,  14  Nev.  17  (1879)  ;  Strawhridge  v.  Stern,  112  Mich.  16,  70  N.  W. 
331  (1897)  ;  Millard  v.  Miller,  88  Pac.  845  (Colo.  1907)  ;  Breaux  B.  Co.  v. 
Hchert,  121  La.  188,  46  So.  206  (1908)  ;  Wise  v.  Tube  Bending  M.  Co.,  194 
N.  Y.  272  (1909)  ;  Courtney  v.  Louisiana  Ry.  N.  Co.,  131  La.  575  (1912)  ; 
Dickey  V.  Willis,  15  Mass.  292,  102  N.  E.  336  (1913)  ;  Pomeroy,  Code  Reme- 
dies (4th  ed.),  p.  303;  38  Cj'C.  484.  In  Gunner  v.  Tibbitts,  153  Ind.  591,  55  N. 
E.  762  (1899)  a  joint  action  was  sustained  against  plaintiff's  seducer  and  an 
abortionist;  quaere  tamen. 


94  PAKPIKS 

cause  of  noj;lijj^oncc  both  of  the  persons  operaliii}^-  the  switching 
engine  and  of  the  person  operating  the  switching  tower.  At  the 
close  of  the  evidence,  the  presiding  judge  directed  a  verdict  for 
both  of  the  defendants,  and  the  plaintiff  exce])ted.'' 

Bkalky,  J. :  In  avoidance  of  this  liability  the  defendant  New 
York  Central  and  Hudson  River  Railroad  Company  urges  that  two 
or  more  wrongdoers  can  not  be  held  jointly,  unless,  either  in  fact  or 
by  intendment  of  law,  they  co-operate  in  the  perpetration  oi  the 
wrong,  as  otherwise  there  would  be  a  misjoinder  of  separate  causes 
of  action.  Undoubtedly  this  is  the  general  rule  where  two  or  more 
persons  voluntarily  unite  in  the  act  which  constitutes  the  wrong, 
or  the  act  is  committed  under  such  circumstances  that  they  reason- 
ably may  be  charged  with  intending  the  injurious  consequences 
which  follow.   We  refer  only  to  a  few  illustrative  cases. " 

It  has  been  said  by  an  eminent  legal  author  that  "in  respect  to 
negligent  injuries,  there  is  considerable  difference  of  opinion  as  to 
what  constitutes  joint  liability.  No  comi)rehensive  general  rule  can 
be  formulated  which  will  harmonize  all  the  authorities."  i  Cooley 
on  Torts  (3d  ed.)  246.  See  Pollock  on  Torts  (7th  ed.)  194.  But 
whatever  diversity  of  opinion  there  may  be  elsewhere,  the  law  here 
must  be  considered  as  settled,  that  if  two  or  more  wrongdoers  negli- 
gently contribute  to  the  personal  injury  of  another  by  their  several 
acts,  which  operate  concurrently,  to  that  in  effect  the  damages  suf- 
fered are  rendered  inseparable,  they  are  jointly  and  severally  liable. 
Boston  and  Albany  Railroad  v.  Shanly,  107  Mass.  568,  579 ;  Bryant 
V.  Bigelozc  Carpet  Co.,  131  Mass.  491,  503;  Corey  v.  Havener,  182 
Mass.  250;  Oiilighan  v.  Butler,  189  Mass.  287,  293;  Flynn  v.  Butler, 
189  Mass.  377.  A  corresponding  liability  under  similar  conditions 
has  been  sustained  in  other  jurisdictions. ''•''  The  cases  of  Parsons  v. 
Winchell,  5  Cush.  592;  Midchey  v.  Methodist  Religious  Society,  125 


''  Only  so  much  of  the  case  is  printed  as  relates  to  the  joinder  of  defend- 
ants. 

'■Brown  v.  Perkins,  i  Allen  (Mass.)  89  (1861);  Stone  v.  Dickin- 
son, 5  Allen  (Mass.)  29,  81  Am.  Dec.  727  (1862)  ;  Burden  v.  Fetch,  109  Mass. 
154  (1872);  Levi  V.  Brooks,  121  Mass.  501  (1876);  Bath  v.  Meicalf,  145 
Mass.  274,  14  N.  E.  133,  I  Am.  St.  455  (1887)  ;  Martin  v.  Golden,  180  Mass. 
549,  62  N.  E.  977  (1902)  ;  Parsons  v.  Winchell,  5  Cash.  (Mass.)  592,  52  Am. 
Dec.  745  (1850);  Hozi'kcszvorth  v.  Thompson,  98  Mass.  77,  93  Am.  Dec.  137 
(1867)  ;  Banfield  v.  Whipple,  10  Allen  (Alass.)  27,  87  Am.  Dec.  618  (1865)  ; 
Midchey  v.  Methodist  R.  Sac,  125  Mass.  487  (1877);  White  v.  Saivyer,  16 
Gray  (Mass.)  586  (i860)  ;  Pervear  v.  Kimball,  8  Allen  (Mass.)  199  (1864)  ; 
Swain  v.  Tennessee  C.  Co.,  in  Tenn.  430,  78  S.  W.  93  (1903)  ;  Hill  v.  Good- 
child,  5  Burr.  2790  (1771). 

■'  Colegrove  v.  New  York,  N.  H.  &  H.  R.  Co.,  20  N.  Y.  492,  75 
Am.  Dec.  418  (1859)  ;  Barret  v.  Third  Ave.  R.  Co.,  45  N.  Y.  628  (1871)  ; 
Lynch  v.  Elecktron  Mfg.  Co.,  94  App.  Div.  (N.  Y.)  408  (1904);  Tompkins 
V.  Clay  Street  Hill  R.,  66  Cal.  163,  4  Pac.  ii6s  (1884)  ;  Cuddy  v.  Horn,  46 
Mich.  596,  10  N.  W.  32,  41  Am.  Rep.  178  (1881)  ;  Mathews  v.  Del.  L.  &  W. 
R.  Co.,  56  N.  J.  L.  34,  27  Atl.  919.  22  L.  R.  A.  261  (1893)  ;  Electric  R.  Co.  v. 
Shelton,  89  Tenn.  423,  14  S.  W.  863  ( 1890)  ;  JVilder  v.  Stanley,  65  Vt.  145,  26 
Atl.  189.  20  L.  R.  A.  479  (1893)  ;  McClcllan  v.  St.  Paul,  M.  &  M.  R.  Co.,  58 
Minn.  104,  59  N.  W.  978  (1894)  ;  Allison  v.  Hohbs,  96  Maine  26,  51  Atl.  245 
(1902);  Wabash  R.  Co.  v.  Shacklet,  105  III.  364,  44  Am.  Rep.  791  (1883); 
Craves  v.  City  &  S.  Tel.  Assn.,  132  Fed.  387  (1904). 


FENEFF  V.  BOSTON  &  M.  RAILROAD  95 

Mass.  487;  Harriott  v.  Plimpton,  i66  Mass.  585  ;  Mooney  v.  Ediston 
Electric  Illuminating  Co.,  185  Mass.  547,  and  Fletcher  v.  Boston  and 
Maine  Railroad,  187  Mass.  463,  upon  which  the  defendant  reHes  as 
estabhshing  a  different  rule,  are  to  be  distinguished.  The  first  two 
decided  that  a  master  can  not  be  held  responsible  jointly  with  his 
servant  nor  a  principal  with  his  agent,  for  a  tort  committed  by  the 
servant  or  agent,  when  acting  within  the  scope  of  their  employ- 
ment.'^* In  the  third  case,  the  joint  action  failed  because  no  proof 
appeared  of  any  co-operation  between  the  defendants  to  procure  a 
breach  of  the  plaintiff's  contract  of  marriage,  while  in  the  fourth, 
the  measure  of  damages  as  well  as  the  degree  of  liability  being  dif- 
ferent and  distinct  as  to  the  different  defendants,  the  liability  was 
said  to  be  several.  If,  in  the  remaining  case,  it  could  have  been  said 
that  the  accident  was  chargeable-  solely  to  the  railroad  company, 
upon  whom  primarily  rested  the  contractual  duty  of  safely  trans- 
porting the  plaintiff  and  whose  breach  of  this  duty  was  the  proxi- 
mate cause  of  the  injury,  yet  the  decision  in  favor  of  the  defendants 
well  might  rest,  as  the  opinion  states,  upon  his  contributory  negli- 
gence. In  the  present  case  the  wrongful  act  was  unintentional  and 
arose  solely  from  the  concurrent  negligence  of  the  defendants,  and, 
while  it  can  not  be  said  that  there  was  any  concerted  action,  yet 
their  combined  carelessness  in  the  simultaneous  performance  of 
unconnected  duties  produced  a  single  injury  to  the  plaintiff.  It  thus 
becomes  impossible  to  ascertain  whether  one  defendant  rather  than 
the  other  was  the  efficient  cause  of  the  wrong  to  which  each  con- 
tributed. 

The  plaintiff,  therefore,  is  entitled  to  prosecute. liissuit..to,.£nal 
judgment  against  both  defendants,  although  he  can  have  but  one 
satisfaction  in  damages.  Oidiglian  v.  Butler,  189  Mass.  287,  293, 
and  cases  cited. 

The  verdict  in  their  favor  having  been  improperly  directed,  in 
accordance  with  the  agreement  of  the  parties  judgment  is  to  be 
entered  for  the  plaintiff  in  the  sum  of  $600.'^^ 
So  ordered. 


'^  See  note  to  French  v.  Central  Construction  Co.,  12  L.  R.  A.  (N.  S.) 
669  (76  Ohio  509). 

"  Accord :  Matthews  v.  Del.  L.  &  W.  R.  Co.,  56  N.  J.  L.  34,  27  Atl.  919, 
22  L.  R.  A.  261  (1893)  •,_Doivnev  v^J^aUroad,  i6i„Pa..  '^88.  2q  Atl.  128  (1894)  ; 
Brown  v.  Coxe  Bros.  &  Co.,  75  Fed.  689  (1896)  ;  Corey  v^  Havener,  182 
Mass.  250,  65  N.  E.  69  (1902)  ;  Weathers  v.  Railroad,  in  Mo.  App.  315,  86 
S.  W.  908  (1904)  ;  StranJial  v.  Asiatic  S.  Co.,  48  Ore.  100  (1906)  ;  Walton  v. 
Miller's  Admr.,  109  Va.  210  (1909)  ;  Sweet  v.  Perliins,  196  N.  Y.  482  (1909)  ; 
Pacific  T.  Co.  v.  Parmenter,  170  Fed.  140  (1909)  ;  Mauniee  Valley  R.  &  L.  Co. 
V.  Montgomery,  81  Ohio  426  (1910)  ;  Fortmeyer  v.  National  B.  Co.,  133  N.  W. 
461  (Minn.  1911)  ;  Spear  v.  United  Raliroads,  117  Pac.  956  (Cal.  1911)  ; 
Jones  V.  Spokane  R.  Co.,  124  Pac.  142  (Wash.  1912)  ;  Louisville  R. 
Co.  V.  Allen,  65  So.  8  (Fla.  1914).  In  other  cases  a  more  restricted 
rule  is  piven.  Thus  in  Mason  v.  Copeland  Co.,  27  R.  I.  232  (1905),  it  is 
said:  "The  case  does  not  present  the  concurrence  of  intention  in  the  com- 
mis-sion  of  a  tort  which  is  necessary  to  make  a  joint  tort."  In  Stnrs_c- 
becker  v.  Inland  Traction  Co.,  211  Pa.  156,  60  Atl.  583  (1905),  it  is  said: 
"There  can  he  no  recovery  upon  the  joint  action  where  it  appears  that  there 
was  no  community  of  fault  by  the  two  defendants  in  the  act  which  occasioned 


96  PARTIES 

ELIZABETH  G.  CHIPMAN  r.  JOHN  PALMER.      /V 

Court  of  Appeals  of  New  York,  1879. 

77  A^  Y.  51. 

Appeal  by  the  plaintiff  from  judgment  of  the  General  Term  of 
the  Supreme  Court,  in  the  third  judicial  department,  affirming  a 
judgment  in  favor  of  plaintiff,  entered  upon  a  verdict.  (Reported 
below.  9  Hun  517.) 

This  action  was  brought  to  recover  damages  alleged  to  have 
resulted  from  a  nuisance. 

It  appeared  from  the  evidence  that  plaintiff,  in  1874,  kept  a 
boarding-house  in  the  village  of  Saratoga  Springs,  near  which 
flowed  a  small  natural  stream  of  water.  Defendant  kept  a  boarding- 
house  higher  up  on  the  same  stream,  the  sewerage  from  which  ran 
into  the  stream.  The  sewerage  from  a  large  number  of  hotels  and 
other  boarding-houses  was  also  discharged  into  the  stream  before 
it  reached  plaintiff's  premises.  In  consequence  the  water  of  the 
stream  became  corrupt  and  offensive,  and  by  reason  of  the  stench 
some  of  plaintiff's  boarders  left. 

The  court  charged  the  jury  that  they  could  not  hold  the  defend- 
ant liable  beyond  the  extent  of  the  wrong  w^hich  he  had  himself 
done.  That  if  sewers  from  private  houses  and  large  hotels  had  all 
contributed  to  produce  the  damage  the  jury  might  apportionate  it, 
and  the  rule  of  damage  was  the  rental  value.  The  plaintiff  excepted 
to  that  part  of  the  charge  relating  to  damages.  The  jury  rendered 
a  verdict  for  the  plaintiff  for  five  dollars."*^ 

Miller,  J. :  The  charge  of  the  judge  upon  the  trial  in  reference 
to  the  damages  embraced  two  propositions :  First :  That  the  defend- 
ant was  not  liable  beyond  the  extent  of  the  wrong  which  he  had 
committed,  nor  for  the  injury  which  other  parties  had  contributed 
to  produce,  and  Second :  That  as  to  the  amount  of  injury,  the  rental 
value  of  the  premises  was  the  true  test.  A  general  exception  was 
taken  to  this  portion  of  the  charge. 

The  first  proposition  contained  in  the  charge  was  clearly  correct. 
The  right  of  the  plaintiff'  to  recover  of  the  defendant  all  the  dam- 
ages which  he  had  sustained  by  reason  of  the  nuisance  I  tliink  can 
not  be  maintained.  The  injury  was  not  caused  by  the  act  of  the  de- 
fendant alone,  or  by  that  of  others  who  were  acting  jointly  or  in 
concert  w4th  the  defendant.  It  was  occasioned  by  the  discharge  of 
sewerage  from  the  premises  of  the  defendant  and  other  owners  of 
lots  into  the  creek  separately  and  independently  of  each  other.  The 
right  of  action  arises  from  the  discharge  into  the  stfeam,  and  the 
nuisance  is  only  a  consequence  of  the  act.    The  liability  commences 


the  injur>'"  See  also,  ^prfj  y.  VnJip^  -?fS  P^,  /\^i  (1856);  Howard  v.  Union 
Traction  Co...  iq^  Pa.  3QI  (;goo')  ;  Ralienkqrn±  v.  United  Traction  Co.,  14 
Pa7  Super.  Ct.  635_XlS'Oo).__ 

"^The  argiirnents  of  counsel  and  that  part  of  the  opinion  which  discusses 
the  measure  of  damages  is  omitted. 


CHIPMAX  V.  PALMER  97 

with  the  act  of  the  defendant  upon  his  own  premises,  and  this  act 
was  separate  and  independent  of  and  without  any  regard  for  the  act 
of  others.  The  defendant's  act,  being  several  when  it  was  committed, 
can  not  be  made  joint  because  of  the  consequences  which  followed 
in  connection  with  others  who  had  done  the  same  or  a  similar  act. 
It  is  true,  that  it  is  difficult  to  separate  the  injury ;  but  that  furnishes 
no  reason  why  one  tort  feasor  should  be  liable  for  the  act  of  others 
who  have  no  association  and  do  not  act  in  concert  with  him.  If  the 
law  was  otherwise,  the  one  who  did  the  least  might  be  made  liable 
for  the  damages  of  others  far  exceeding  the  amount  for  which  he 
really  was  chargeable,  without  any  means  to  enforce  contribution 
or  to  adjust  the  amount  among  the  different  parties.  So  also  proof 
of  an  act  committed  by  one  person  would  entitle  the  plaintiff'  to 
recover  for  all  the  damages  sustained  by  the  acts  of  others,  who 
severally  and  independently  may  have  contributed  to  the  injury. 
Such  a  rule  can  not  be  upheld  upon  any  sound  principle  of  law. 
The  fact  that  it  is  difficult  to  separate  the  injury  done  by  each  one 
from  the  other  furnishes  no  reason  for  holding  that  one  tort  feasor 
should  be  liable  for  the  acts  of  others  with  whom  he  is  not  acting 
in  concert.  The  authorities  relied  upon  to  sustain  such  a  doctrine 
come  far  short  of  establishing  any  such  rule  and  have  no  application. 
(Barrett  v.  The  Third  Ave.  R.  R.  Co.,  45  N.  Y.  628;  Webster  v. 
H.  R.  R.  R.  Co.,  38  N.  Y.  260;  Sheridan  v.  B.  &  N.  R.  R.  Co.,  36 
N.  Y.  39;  Chapman  v.  N.  H.  R.  R.  Co.,  19  N.  Y.  341 ;  Colgrove  v. 
N.  Y  &  H.  and  A^.  Y.  &  N.  H.  R.  R.  Co.,  20  N.  Y.  492;  Creed  v.' 
Hartman,  29  N.  Y.  591.)  Each  of  the  cases  cited  was  disposed  of 
upon  a  different  principle.  They  merely  hold  that  where  a  direct 
^jersonal  injurv  is  occasioned  by  the  separate  and  c( rncurrmg  negli- 
gence  of  t\\  (/parties  at  one  and  the  same  time,  an  action  against 
one  or  all  of  them  will  lie.  The  distinction  is  plain  between  the 
cases  last  cited  and  one  where  the  injury  is  remote  from  the  act 
and  consequential,  and  the  result  of  separate  acts  of  different  par- 
ties at  different  times,  without  any  association  and  independent  of 
each  otlier.  Slater  v.  Merserean,  64  N  .Y.  138,  was  a  case  where  the 
separate  and  independent  acts  of  negligence  of  two  parties  was  the 
cause  of  a  single  injury  to  a  third  person,  and  as  was  said  in  the 
opinion,  was  somewhat  analogous  to'  a  case  where  the  injury  was 
caused  by  the  concurrent  negligence  of  the  trains  of  two  railroad 
corporations.  That  case  was  well  decided,  and  in  no  way  upholds 
the  doctrine  contended  for  by  the  plaintiff's  counsel,  and  is  not  in 
point. 

The  appellant's  counsel  cites  from  Wood  on  Nuisances  (§§  821, 
822),  claiming  that  the  text  upholds  the  doctrine  that  where  one 
contributes  to  the  production  of  a  nuisance,  he  is  chargeable  wath 
all  the  damages,  although  many  others  contributed  thereto,  and  that 
where  several  persons  drain  in  the  same  ditch,  and  an  injury  is  pro- 
duced thereby,  any  of  the  persons  so  using  the  drain  are  liable  jointly 
or  separately.  The  cases  cited  by  the  author  do  not  sustain  the 
principle  contended  for,  as  will  be  seen  by  an  examination  of  the 
same.    In  Duke  of  Buccleugh  v.  Connan,  5  Macph.  214,  the  action 

7 — Civ.  Proc. 


98  PARTIES 

was  a  tleclaration  or  interdict,  in  tlic  Court  of  Sessions  of  Scotland, 
which  is  in  the  nature  of  a  bill  in  eijuity,  to  prevent  the  pollution  of 
the  river  North  Esk,  which  flowed  through  the  lands  of  the  com- 
plainants, by  paper  mills  erected  on  tlie  stream  by  the  defendants. 
It  was  held  that  the  action  could  be  maintained;  that  no  question 
of  damage  was  raised,  but  merely  the  question  whether  the  parties 
had  committed  the  nuisance  sought  to  be  redressed.  While  an  action 
in  equity  may  be  maintained  in  favor  of  different  parties,  who  were 
the  owners  of  property  upon  the  same  stream,  against  the  owners  of 
dillerent  properties,  to  restrain  the  nuisance,  they  may  not  be  jointly 
or  severally  liable  for  the  entire  injury  occasioned  thereby.  In 
Crossley  z:  Liglitoivlcr,  (3  L.  R.  Eq.  279,)  it  was  held  that  it  was 
no  answer  to  plaintiff's  complaining  of  a  private  nuisance  that  a 
great  many  other  persons  are  committing  the  same  sort  of  nuisance, 
and  that  plaintiff  has  admitted  the  fact  by  buying  up  the  rights  of 
some  who  had  acquired  rights  against  him,  provided  that  a  definite 
amount  of  injury  could  be  traced  to  the  defendant.  This  case  also 
was  a  bill  in  equity  to  restrain  the  defendants  from  suffering  the 
foul  w-ater  from  their  dye  works  to  flow  into  and  foul  the  water 
of  tlie  stream  and  thus  interfering  with  the  plaintiff's  enjoyment 
and  use  of  the  w^ater.  There  was  no  question  as  to  a  separate  or 
joint  liability  for  damages  in  the  case.  Thorpe  v.  Brumfitt,  8  L.  R. 
Ch.  App.,  650,)  was  a  bill  for  an  injunction  to  restrain  defendants 
from  obstructing  a  roadway,  and  holds  that  the  acts  of  several  per- 
sons may  together  constitute  a  nuisance  which  the  court  will 
restrain,  although  the  damage  occasioned  by  the  acts  of  any  one, 
if  taken  alone,  would  be  inappreciable.  McAuley  v.  Roberts,  (13 
Grant  Ch.  [U.  C],  565,)  holds  tliat  an  injunction  will  lie  to  com- 
pel the  defendant  to  stop  or  divert  a  drain  which  had  been  built  on 
the  plaintift''s  lot.  In  The  Chenango  Bridge  Co.  v.  Lewis,  (63  Barb., 
Ill,)  the  erection  and  the  illegal  use  of  the  bridge  afterwards  was 
a  continuous  act;  and  hence,  it  was  properly  held  that  the  liability 
attached  not  only  to  those  who  were  engaged  in  the  use,  but  also 
to  those  who  erected  the  structure  with  the  knowledge  or  intent  that 
it  should  be  put  to  the  illegal  use.  None  of  the  cases  uphold  the 
doctrine  contended  for."" 

While,  as  we  have  seen,  an  equitable  action  will  lie  to  restrain 
parties  who  severally  contribute  to  a  nuisance,  the  general  rule  is 
well  settled  that  where  different  parties  are  engaged  in  polluting  or 
obstructing  a  stream,  at  different  times  and  places,  the  whole  damage 
occasioned  by  such  wrongful  acts  can  not  be  collected  of  one  of  the 
parties.  This  was  also  distinctly  held  in  Wallace  v.  Drew,  (59  Barb. 
413.)  There  must  be  concert  of  action  and  co-operation  to  make 
several  persons  jointly  liable.  {Williams  v.  Sheldon,  10  Wend. 
654;  Guille  V.  Swan,  19  J.  R.  381.)  In  Wood  v.  Sntcliffe,  (8  Eng. 
L.  &  Eq.  217,)  which  was  a  motion  for  an  injunction  to  prevent 
the  pollution  of  a  stream  by  dye  wares  and  matters  of  that  descrip- 


"  See  further  on  codefendants  in  equity  People  v.  Gold  Run  D.  &  M.  Co., 
66  Cal.  138,  4  Pac.  1152,  56  Am.  Rep.  80  (1884)  ;  Warren  v.  Parkhurst,  186 
N.  Y.  43  (1906);  Laden  v.  Tennes.'iee  Copper  Co.,  179  Fed.  245  (1910)  ; 
Milchsack  V.  Dexter  Cement  Co.,  14  Northampton  Co.  Rep.  177  (Pa.  1914). 


PRICE  V.  VIRGINIA-CAROLINA  C.   CO.  99 

tion,  the  vice  chancellor  states  that  where  one  wrongdoer  does 
more  harm  than  another  by  a  separate  act,  "the  plaintiff  must  pursue 
each  of  the  wrongdoers  separately,  unless  lliey  are  acting  in  part- 
nership or  in  concert  together,  as  they  are  separate  acts."  The  same 
rule  is  upheld  in  th.c  Slate  of  Pennsylvania  in  several  cases  where 
the  question  was  presented:  (Little  ScJiuylkill  Nav.  R.  R.  &  Coal 
Co.  V.  Richards,  'VTjr'enn.  142;  Seely  v.  Alden,  6iJPa.  302 ;  Bard  v. 
Yolin,  26  Pa.  482.J 

As  the  portion  of  the  charge  which  we  have  considered  was 
clearly  right,  and  the  exception  was  general,  so  as  to  include  both 
propositions,  it  is  not  material  whether  the  last  one  was  correct  in 
that  connection. 

Judgment  affirmed."® 


PRICE  V.  VIRGINIA-CAROLINA  CHEMICAL  CO. 

Supreme  Court  of  Georgia,  1911. 

136  Ga.  175. 

Complaint.    Before  Judge   Rawlings.    Johnson   Superior   Court. 
March  23,  1910. 

The  Virginia-Carolina  Chemical  Company  filed  its  petition 
against  W.  D.  Price  &  Company  and  the  Citizens  Bank  of  Kite, 
Georgia,  alleging  as  follows:  that  on  May  i,  1908,  W.  D.  Price  & 
Company  executed  and  delivered  to  petitioner  their  note  for  $648.11, 
due  November  i,  1908,  and  payable  at  the  Citizens  Bank  of  Kite; 
petitioner  discounted  the  note  before  maturity,  and,  in  due  course  of 
trade,  it  became  the  property  of  the  Corn  Exchange  National  Bank 
of  Chicago ;  that  the  Corn  Exchange  Bank,  shortly  before  maturity 
of  the  note,  sent  same  for  collection  to  the  Citizens  Bank  of  Kite, 


''Accord:  Lull  v.  Fox  &  W.  Imp.  Co.,  19  Wis.  100  (1865);  Sellick  v. 
Hall,  47  Conn.  260  (1879)  ;  Sloggy  v.  Dehvorth,  38  Minn.  179,  36  N.  W.  451 
8  Am.  St.  656  (1888);  Martinoz^'skv  v.  Hannibal,  35  Mo.  App.  70  1889) 
Miller  v.  High  Ditch  Co.,  87  Cal.  430,  25  Pac.  550,  22  Am.  St.  254  (1891) 
Ames  V.  Dorset  Marble  Co.,  64  Vt.  10,  23  Atl.  857  (1891)  ;  Gallaghez^y. 
Kemijierer.  1.44  Pa.  S09,  .22  Atl.  970,  27  Am.  St.  673  (1891)  ;  People  v.  Oak- 
Tand  Water  F.  Co.,  118  Cal.  234,  50  Pac.  305  (1897)  ;  Bonte  v.  Post  el,  109  Ky. 
64,  22  Ky.  L.  583,  58  S.  W.  536,  51  L.  R.  A.  187  (1900)  ;  Swain  v.  Tennessee 
Copper  Co.,  iii  Tenn.  430,  78  S.  W.  93  (1903)  ;  Watson  v.  Colusa-Parrott  M. 
6-  Smelting  Co.,  31  Mont.  513  (1905)  ;  Mansfield  v.  Bristor,  76  Ohio  St.  270 
(1907)  ;  Tackaberry  v.  Sioux  City  Service  Co.,  154  Iowa  358  (1911)  ;  /?f^- 
manv.  Lcl'Jqh  ^  l^''  ^  Cn  ^o  Pa.  Super.  Ct.  427  (1912)  ;  Brose  v.  Tivin  Tails' 
L.  &  W.  Co.,  24  Idaho  266  (1913)  ;  Standard  rnosphate  Co.  v.  Lunn,  63  So. 
429  (Fla.  1913).  Contra:  South  Bend  M.  Co.  v.  Liphart,  \2  Ind.  App.  185, 
39  N.  E.  908  (1844)  ;  Valparaiso  v.  Moffitt,  12  Ind.  App.  250,  39  N.  E.  909,  54 
Am.  St.  522  (1894)  ;  Wc.<;t  Mimcie  S.  Co.  v.  Slack,  164  Ind.  21,  72  N.  E.  879 
(1904);  "Day  V.  Louisville,  C.  &  C  Co.,  60  W.  Va.  27,  53  S.  E.  776,  10  L. 
JR.  A.  (N.  S.)  167  (1906).  Parties  who  co-operate  in  maintaining  a  nuisance 
may  be  held  jointly.  Comminge  v.  Stevenson,  76  Tex.  642,  13  S.  W.  556 
(1890)  ;  Rogers  v.  Stezvart,  5  Vt.  215,  26  Am.  Dec.  296  (1833)  ;  Irvin  v.  Wood. 
4  Rob.  (N.  Y.)  138  (1866)  ;  Blanton  v.  Kincheloe  L  Co.,  102  S.  W.  744  (Tex. 
1907). 


lOO  PART IKS 

but  never  rceeivcd  any  remittance  from  that  bank,  nor  was  tlie  note 
ever  returned;  that  \V.  I).  Trice  &  Com])any  claim  that  they  paid 
the  note  in  full  to  the  Citizens  I')ank  of  Kite  on  the  3d  of  November, 
1908,  which  is  denied  by  that  bank,  which  also  denies  that  it  ever 
received  such  note  for  collection ;  that  petitioner  has  paid  the  Corn 
Kxchane^e  Bank  the  amount  of  the  note,  but  has  never  been  able  to 
obtain  possession  of  the  note;  that  if  this  not  was  paid  by  W.  D. 
Price  &  Company  to  the  Citizens  Bank  of  Kite,  then  that  bank  is 
indebted  to  petitioner  for  the  amount  of  the  note,  but  if  it  was  not 
so  paid  as  claimed  by  Trice  &  Company,  tlien  the  note  has  been  lost, 
if  it  was  never  received  by  the  Citizens  Bank  of  Kite  for  collection, 
or,  if  it  was  received  by  the  bank,  the  latter  has  approi:)riated  and 
converted  it  to  its  own  use;  and  that  eitlier  W.  D.  Price  &  Company 
or  the  Citizens  Bank  of  Kite  is  indebted  to  ])etitioner  in  the  amount 
of  the  note.  The  prayer  of  the  petitioner  v.as  that  W.  D.  Price  & 
Company  and  the  Citizens  Bank  of  Kite  be  required  to  interplead, 
whether  W.  D.  Price  &  Company  had  paid  the  note  to  the  Citizens 
Bank  of  Kite,  as  they  claimed,  or  whether  said  note  had  never  been 
received  by  the  bank,  as  claimed  by  it ;  and  that  ])etitioner  have 
judgment  against  whichever  of  the  defendants  it  should  appear 
owed  the  amount  of  its  note.  It  was  alleged  by  amendment  that 
petitioner  was  without  any  adequate  remedy  at  law,  and  that  in 
order  to  prevent  a  multiplicity  of  suits  and  settle  the  contentions 
of  the  parties  by  one  decree  it  was  necessary  that  a  court  of  equity 
should  take  jurisdiction.  Price  &  Company  demurred  to  the  petition, 
on  the  grounds,  that  no  cause  of  action  was  set  out.  that  the  peti- 
tioner is  not  entitled  to  the  relief  sought,  eitlier  legal  or  efjuitable, 
and  because  sei)arate  and  distinct  actions  against  separate  and  dis- 
tinct defendants  are  joined  in  the  petition  and  there  is  a  misjoinder 
of  parties  defendant.  The  court  overruled  the  demurrer,  and  Price 
&  Company  excepted. 

Evans,  P.  J. :  Under  the  allegations  of  the  petition,  the  plaintiff 
is  not  entitled  to  have  the  defendants  engage  in  any  internecine 
legal  battle  to  settle  which  one  of  them  shoukl  pay  the  money- which 
it  claims  to  be  due  from  one  or  the  other.  The  code  declares  that 
"whenever  a  person  is  possessed  of  property  or  funds,  or  owes  a 
debt  or  duty,  to  which  more  than  one  jierson  lays  claim,  and  the 
claims  are  of  such  a  character  as  to  render  it  doubtful  or  dangerous 
for  the  holder  to  act,  he  may  apply  to  ecjuity  or  compel  the  claim- 
ants to  interplead."  Civil  Code  (1910),  §  5471.  Instead  of  alleging 
that  he  has  funds  belonging  to  one  or  the  other  of  the  defendants, 
whom  he  invites  to  settle  their  respective  rights  to  the  same,  the 
plaintiff  alleges  that  he  is  entitled  to  recover  of  one  of  the  defend- 
ants a  certain  sum  of  money  on  an  alternative  state  of  facts,  and 
asks  that  they  litigate  between  themselves  which  state  of  facts 
presents  the  truth  and  which  one  of  the  defendants  is  liable  to  him. 
This  is  not  permissible.  If  the  bank  collected  the  note,  it  is  account- 
able to  the  plaintiff,  and  that  is  one  cause  of  action.  If  the  makers 
have  not  paid  the  note  they  are  liable  thereon  to-  the  plaintiff,  and 
that  is  an  altogether  different  cause  of  action  against  different  de- 
fendants, and  violates  the  fundamental  j)rinciple  of  pleading  which 


FAlRriKLD  T'.   SOUTH  PORT  NAT.   BANK  101 

prohibits  the  inckision  of  separate  and  independent  controversies 
against  different  parties  in  the  same  action.^'-' 
Judgment  reversed. 


TOWN  OF  FAIRFIELD  v.  SOUTHPORT  NATIONAL  BANK. 

Supreme  Court  of  Connecticut,  1904. 

•jj  Conn.  423. 

The  town  of  Fairfield  brought  an  action  against  the  Southjiort 
National  Bank,  and  four  other  banks,  averring  in  the  complaint 
that  the  selectmen  of  the  town  had  borrowed  money  from  time  to 
time  of  the  Southport  National  Bank  and  had  given  twenty  prom- 
issory notes  therefor.  These  notes  were  paid  in  full  to  the  South- 
port  National  Bank,  but  were  not  cancelled  or  surrendered  as  the 
bank  had  promised  they  should  be,  and  through  its  fraudulent  trans- 
fer three  of  said  notes  had  passed  into  the  possession  of  the  Con- 
necticut National  Bank,  ten  into  the  possession  of  the  Peoples  Sav- 
ings Bank,  five  into  the  possession  of  the  City  Savings  Bank,  and 
one  into  the  possession  of  the  Bridgeport  Savings  Bank.  Each  of 
the  banks  claimed  to  be  a  bona  fide  holder  of  said  notes  for  value. 
The  Southport  National  Bank  was  insolvent.  The  prayer  was  for 
a  decree  determining  what  rights  the  several  defendants  had  in  the 
instruments  claimed  by  them,  and  what  sum  they  would  be  entitled 
to  receive  from  the  plaintiff;  to  compel  the  Southport  National  Bank 
to  pay  the  other  banks  and  procure  the  instruments  to  be  cancelled 
and  delivered  up  and  for  a  recovery  of  damages  against  the  South- 
port  National  Bank.  To  the  complaint  the  Southport  National  Bank 
demurred  on  the  ground  that  the  complaint  was  bad  for  misjoinder 
of  parties  and  causes  of  action.  The  court  below  sustained  the  de- 
murrer and  entered  judgment  for  the  bank.  The  plaintiff  appealed.**" 

"Two  or  more  persons  can  not  be  joined  as  defendants  upon  the  ground 
that  one  or  some  are  liable  in  the  alternative.  Oglesby's  Sureties  v.  State,  73 
Tex  658  II  S.  W.  873  (1889)  ;  Brozvn  v.  ///.  Cent.  R.  Co.,  100  Ky.  525,  18  Ky. 
L  974  38  S.  W.  862,  (1897)  ;  L.  &  N.  R.  Co.  v.  Fort  Wayne  E.  Co.,  108 
Ky.  113,  21  Ky.  L.  1544,  ^5  S.  W.  918  (1900)  ;  Thorndale  M.  Co.  v.  Evens,  146 
S.' W.  1053  (Tex.  1912);  Casey  P.  M.  Co.  v.  Bootii  F.  Co.,  124  Minn.  117 
(1913)  ;  30  Cyc.  131.  ... 

In  England,  under  tlie  rules  of  the  Supreme  Court,  oraer  xvi,  rule  7, 
where  a  plaintff  is  in  doubt  as  to  the  per.son  from  whom  he  is  entitled  to  re- 
dres.s,  he  may  join  two  or  more  defendants  to  th'e  intent  that  the  questionas 
to  which,  if  any,  of  them  is  liable  may  be  determined.  Bennetts  v.  Mcllwraith, 
L.  R.  (1896),  2  Q.  B.  Div.  464;  Thompson  v.  London  County  Council,  L.  R. 
(1899),  I  Q-  B.  Div.  840;  Sanderson  v.  Blyth  Theater  Co.,  L.  R.  (1903),  2  K. 
B.  Div.  533;  Compania  Sansincna  v.  Moulder,  L.  R.  (1910),  2  K.  B.  Div.  354- 
This  practice  has  been  adopted  by  statute  in  Rhode  Island.  Phoenix  Iron 
Foundry  v.  LocHvood,  21  R.  I.  556,  45  Atl.  546  (1900)  ;  in  New  Jersey  by  the 
Practice  Act  of  1912,  §  6  and  rule  8,  and  in  Connecticut  by  rule  of  court,  58 
Conn..  561. 

''"The  statement  of  facts  is  abridged  from  the  opinion  of  the  court,  por- 
tions of  which  are  omitted.  The  section  of  the  practice  act  referred  to  by 
the  court  is  in  the  General   Statutes,  Revision  of   1902.     Similarly  the  New 


lOJ  TARTIES 

Torrance.  C.  ].:  The  question  is  whether,  under  our  Practice 
Act,  the  complaint  is  bad  for  misjoinder  as  claimed.  That  act  pro- 
vides (Gen.  Stat.,  §  6i8)  as  follows:  "Any  person  may  be  made  a 
defendant  who  has  or  claims  an  interest  in  the  controversy,  or  any 
part  thereof,  adverse  to  the  plaintiff,  or  whom  it  is  necessary,  for 
a  complete  determination  or  settlement  of  any  question  involved 
therein,  to  make  a  jiarty."  If  then,  any  of  the  defendants  "has  or 
claims  an  interest  in  the  controversy,  or  any  part  thereof,  adverse  to 
the  plaintiff,"  such  defendant  was  properly  made  a  party  in  the 
cause.  What,  then,  is  the  "controversy"  in  this  case,  within  the 
meaninc^  of  the  statute?  That  controversy  relates  to  the  ownership 
of,  the  liability  upon,  and  the  right  to  the  possession  of,  the  twenty 
written  instruments  described  in  the  complaint,  each  purporting  on 
its  face  to  be  a  promissory  note  made  by  the  plaintiff.  These  in- 
struments may  be  said  to  be  the  subject-matter  of  the  controversy. 
Each  of  the  defendants  holds  one  or  more  of  said  notes,  and  they 
each  make  certain  claims  with  regard  to  the  said  notes  held  by  each, 
which  are  adverse  to  certain  claims  made  by  the  plaintiff  with  regard 
to  said  notes.  The  plaintiff  is  one  of  the  towns  of  this  state,  and  with 
reference  to  each  and  all  of  said  notes,  it  claims:  (i)  that  it  never 
executed  them  and  is  not  legally  bound  by  them;  (2)  that  they  were 
paid  in  full,  with  its  money,  long  before  they  came  into  the  hands 
of  the  defendants,  other  than  the  Southport  National  Bank;  and 
(3)  that  all  of  said  notes  held  by  said  last-named  defendants,  are 
held  by  transfer  from  said  Southport  National  Bank ;  that  said 
transfer  was  made  by  said  bank  in  fraud  of  the  plaintiff's  rights ; 
and  that  this  fraud  may  affect  the  rights  of  the  defendants  other 
than  the  Southport  National  Bank.  The  Southport  National  Bank 
denies  all  of  these  claims;  and  the  other  defendants  deny  the  first, 
and  the  other  two  also,  so  far  as  they  affect  or  may  affect  the  right 
of  said  defendants.  The  defendants  thusJiave  each  an  interest  in 
having  these  claims  of  the  plaintiff  decided  adversely  to  the  plaintiff, 
and  their  interest  is  a  pecuniary  one.  The  word  "controversy"  is 
exceedingly  broad  and  comprehensive,  and  for  that  reason  not  easily 
susceptible  of  any  precise  general  definition  and  no  attempt  will  be 
made  here  to  give  it  any  such  definition.  It  is  enough  to  say  that 
we  think  that  words,  as  applied  to  the  present  case,  means  the  ad- 
verse claims  of  the  parties  with  respect  to  the  ownership  of,  liability 
upon,  and  possession  of,  said  twenty  notes  set  forth  in  the  complaint. 
If  this  be  so,  it  follows  that  each  defendant,  as  between  such  de- 
fendant and  the  plaintiff,  has  an  interest  adverse  to  the  plaintiff  in 
the  whole  or  in  some  part  of  the  controversy,  and  thus  in  terms  at 
least  comes  within  the  class  who  may  be  made  defendants  under  the 
statute. 

York  Code  of  Civil  Procedure,  §  4.47,  provides  :  "Any  person  may  be  made  a 
defendant  who  has  or  claims  an  interest  in  tlic  controversy  adverse  to  the 
plaintiff,  or  who  is  a  necessary  party  de<'endant  for  the  complete  determina- 
tion or  settlement  of  a  question  involved  therein,  except  as  otlierwise  ex- 
pressly prescribed  in  this  act."  Tlie  New  York  Code  of  1848,  §  118,  was 
copied  into  most  of  the  other  codes  with  sliffht  modifications.  New  Jersey 
Practice  Act  of  1912,  §  6;  Ohio  Gen.  Code,  §  112^^;  Burns'  Ann.  Stat. 
Ind.  (1914),  §  269;  Pomeroy's  Code  Remedies  (4th  ed.),  P-  266. 


FAIRFIELD  V.   SOUTH  PORT  NAT.   BANK  I03 

It  must  be  conceded,  however,  as  claimed  by  the  Southport  Na- 
tional Bank,  that  with  respect  to  each  other,  the  interest  of  the  de- 
fendants in  the  controversy,  or  any  part  of  it,  is  a  several  and  not  a 
joint  or  mutual  one.  It  is  true  they  each  obtained  the  notes  they  re- 
spectively hold  from  a  common  source,  the  Southport  National 
Bank;  but  there  is  no  privity  between  them.  They  each  obtained 
and  hold  their  notes  by  a  several  title,  by  means  of  transactions 
with  which  the  others  had  and  have  no  concern  whatever.  The  de- 
fendants, as  between  themselves,  have  no  "joint"  or  "mutual"  inter- 
est in  the  claims  of  each  against  the  plaintiff,  nor  in  the  claims  of 
the  plaintiff  against  each;  and  because  of  this  the  Southport  Na- 
tional Bank  contends  that  they  can  not  properly  be  joined  as  de- 
fendants. 

In  the  old  equity  practice  it  was  undoubtedly  the  rule,  at  least 
in  the  case  of  "bills  of  ])eace,"  that  a  single  plaintiff  could  not  join 
numerous  defendants  in  one  suit  unless  there  existed  among  them 
"a  common  right,  a  community  of  interest  in  the  subject-matter  of 
the  controversy,  or  a  common  title  from  which  all  their  separate 
claims  and  all  the  questions  at  issue  arise;  it  is  not  enough  that  the 
claims  of  each  individual  being  separate  and  distinct,  there  is  a  com- 
munity of  interest  in  the  question  of  law  or  of  fact  involved,  or  in 
the  kind  and  form  of  remedy  demanded  and  obtained  by  or  against 
each  individual."  I  Pomeroy's  Eq.,  §  268.  The  author  quoted,  how- 
ever, says  in  the  next  section  (§  269)  that  this  rule  has  long  been 
abandoned,  and  tlien  proceeds  to  state  the  matter  as  follows :  "Under 
the  greatest  diversity  of  circumstances,  and  the  greatest  variety  of 
claims  arising  from  unauthorized  public  acts,  private  tortious  acts, 
invasion  of  property  rights,  violation  of  contract  obligations,  and 
notwithstanding  the  positive  denials  of  some  American  courts,  the 
v/eight  of  authority  is  simply  overwhelming  that  the  jurisdiction 
may  and  should  be' exercised  either  on  behalf  of  a  numerous  body 
of  separate  claimants  against  a  single  party,  or  on  behalf  of  a  single 
party  against  such  a  numerous  body,  although  there  is  no  'common 
title',  nor  'community  of  right',  or  of  'interest  in  the  subject-matter', 
among  these  individuals,  l3ut  where  tliere  is  and  because  there  is 
merely  a  community  of  interest  among  them  in  the  questions  of  law 
and  fact  involved  in  the  general  controversy,  or  in  the  kind  and 
form  of  relief  demanded  and  obtained  by  or  against  each  individual 
member  of  the  numerous  body."  The  cases  cited  in  the  foot  notes 
in  the  book  above  referred  to  amply  bear  out  the  author's  state- 
ments. In  the  following  cases  the  later  rule  thus  announced  has 
been  recognized  and  applied.  Sheffield  Waterzvorks  v.  Yeomans, 
L.  R.  2  Cli.  App.  8 ;  Nezv  York  &  N.  H.  R.  Co.  v.  Schuyler,  17  N.  Y. 
592;  Carlton  v.  Newman,  yy  Me.  408;  JVoodruff  v.  North  Bloom- 
field  G.  M.  Co.,  8  Saw.  (U.  S.  C.  C.)  62^;  Black  v.  Shreeve,  3  Halst. 
Ch.  (N.  J.  Eq.)  440;  McHenry  v.  Hazard,  45  N.  Y.  580;  Board  of 
Supervisors  v.  Deyoe,  yj  N.  Y.  219;  Commonwealth  v.  Scott,  112 
Ky.  252,  23  Ky.  L.  Rep.  1488,  55  L.  R.  A.  597;  DeWolf  v.  Sprague 
Mfg.  Co.,  49  Conn.  282;  Evergreen  Cemetery  Assn.  v.  Beecher, 
53  Conn.  551. 


104  rARTii:s 

We  think  the  case  at  Itar  comes  within  this  principle.  The  re- 
spective rij:^hts  which  the  defend^ints  chiini  as^ainst  the  ])laintift', 
untler  the  notes  held  by  each,  depend  snhstantially  and  for  all  prac- 
tical jiurposes  upon  the  decision  of  the  same  cpicslions  of  law  and  of 
fact ;  and  no  good  reason  appears  why  these  rights  can  not  be  pro- 
tected and  enforced  in  one  comprehensive  proceeding.  Of  such  a 
jiroceeding  this  court  has  said:  "We  think  that  it  is  in  harmony 
with  our  ]>ractice  in  analogous  proceedings  and  with  the  spirit  of 
the  Practice  Act,  and  that  it  promotes  speedy,  complete,  and  inex- 
pensive justice,  without  placing  any  obstruction  in  the  way  of  any 
defendant  in  protecting  liis  rights."  Ilvcrijreen  Cemetery  Assn.  v- 
Bcccltcr,  z^},  Conn.  551,  552. 

Judgment  set  aside  and  cause  remanded. ^^ 


SECTION  4.     PERSONAL  DISABILITY. 

(a)  Infants. 

GUILD  V.  CRANSTON. 

Supreme  Judicial  Court  of  Massachusetts,  185 i. 

62  Mass.  506. 

.Sit AW,  C.  J. :  This  case  presents  a  tiuestion  somewhat  novel  and 
interesting.  The  suit  is  for  the  recovery  of  land,  in  usual  form,  in 
the  name  of  the  plaintiff,  by  her  next  friend.  The  plaintiff  now 
comes  into  court  by  her  petition  or  written  motion,  signed  by  herself 
in  proper  person,  and  prays  that  the  suit  may  be  discontinued,  and 
all  further  proceedings  thereon  stayed.  Upon  a  suggestion  by  the 
court,  that  it  would  be  proper  to  appoint  some  person  as  a  commis- 
sioner to  inquire  and  report  the  facts,  it  was  conceded  by  counsel, 
acting  upon  the  application  of  the  next  friend  in  prosecuting  this 
suit,  that  the  plaintiff  is  over  twenty  years  of  age,  and  that  the  suit 
was  commenced  and  is  prosecuted  without  her  authority  and  against 
her  consent. 


'''Compare  Patterson  v.  Kellogg,  53  Conn.  38  (1885). 

Under  the  codes :  "The  test  to  determine  whether  two  parties  can  be 
joined  as  defendants  is,  whether  they  have  one  connected  interest  centering 
in  the  point  in  issue,  or  one  common  point  of  litigation."  Harris  v.  Elliott, 
29  App.  Div.  (N.  Y.)  568  (1898)  ;  Corcoran  v.  Mannering,  10  App.  Div. 
(X.  Y.)  516  (1896);  Brady  v.  Linchan,  5  Idaho  732  (1898);  Demarest  v. 
Holderman,  157  Ind.  467  (1901)  ;  Oyster  v.  lola  Mining  Co.,  140  N.  Car.  135, 
52  S.  E.  198  (1905)  ;  Mayer  v.  Home  Insurance  Co.,  108  N.  Y.  S.  711  (1908). 
On  the  other  hand  the  cases  permitting  the  joinder  of  defendants  are  limited 
by  the  rule  that  a  joint  action  can  not  be  maintained  where  the  liabilities  of 
the  defendants  are  distinct  and  several.  Trozvhridge  v.  Forcpaugh,  14  Minn. 
133  (1869)  ;  Iowa  Lillovct  Gold  M.  Co.  v.  Bliss,  144  Fed.  446  (1906).  This 
distinction  is  particularly  marked  in  the  cases  where  an  injury-  arises  out  of 
the  acts  of  many  defendants  without  common  design.  Where  the  claim  is  for 
damages  alone  a  joinder  is  improper.     Swain  v.   Tennessee  Copper  Co.,  in 


GUILD  V.   CRANSTON  IO5 

A  prochein  ami  or  next  friend  is  said  to  be  "any  person  who  will 
undertake  the  infant's  cause."  i  Bl.  Com.  464.  It  is  not  limited  to 
any  particular  relative  designated  by  being  nearest  of  kin.  It  seems 
to  be  clear,  on  general  principles,  that  there  must  be  an  authority 
somewhere,  to  allow  or  prohibit  a  suit  to  be  brought  in  the  name  of 
a  minor,  by  any  person  assuming  to  be  his  next  friend;  other- 
wise, the  rights  of  the  minor  might  be  put  at  hazard,  inasmuch  as 
he  will  be  bound  by  the  judgment.  But  in  theory  of  law,  we  think  a 
prochein  ami  is  appointed  by  the  court.  It  is  stated  in  Miles  v.  Boy- 
den,  3  Pick.  219,  that  this  practice  of  a  minor  suing  by  prochein  ami 
commenced  with  St.  West,  i,  ch.  48,  enlarged  by  St.  West.  2,  ch.  15 ; 
and  this  is  confirmed  by  other  authorities.  And  it  appears  that  orig- 
inally the  practice  was,  for  the  person  intended  to  act  as  prochein 
ami,  who  is  usually  some  near  relative,  to  go  with  the  infant  before 
a  judge  at  chambers  or  for  a  petition  to  be  presented  in  behalf  of 
the  infant  stating  the  nature  of  the  action,  praying  that,  in  respect  j 
of  his  infancy,  the  person  intended  may  be  assigned  as  his  prochein  | 
ami.  This  was  accompanied  with  an  affidavit,  on  which  the  judge' 
granted  his  fiat,  and  on  this  a  rule  was  drawn  up  by  the  clerk  of  the 
rules,  admitting  the  person  designated  to  sue  as  the  prochein  ami 
of  the  infant.  Tidd's  Pract.  (ist  Amer.  ed.)  69;  Com.  Dig.  Pleader, 
2  ch.  i.^- 

In  one  case,  error  being  brought  to  reverse  a  judgment,  because 
no  such  previous  order  was  shown,  the  court  above  refused  to  re- 
verse, because  the  recital  in  the  writ,  stating  that  the  infant  was 
prosecuting  by  his  next  friend  allowed  for  that  purpose,  should  be 
taken  as  conclusive  that  an  order  had  been  made.  ^Irclier  v.  Frozvde, 
I  Stra.  304. 

The  probability  is,  that  like  many  other  such  requisites,  the 
practice  of  obtaining  such  previous  order,  from  inconvenience,  fell 
into  disuse ;  probably  in  the  confidence  that  the  authority  would  not 
be  called  in  question,  or,  if  called  in  question,  could  be  supplied, 
when  all  was  right  and  well  intended,  by  an  order  nunc  pro  tunc ; 
and  if  the  defendant  appeared  and  pleaded,  it  would  be  too  late 
then  to  cpestion  the  authority  of  the  prochein  ami.  It  was  put  on 
the  footing,  in  this  respect,  of  a  power  of  attorney,  which  is  always 


Tenn.  430  (1Q03).  But  where  it  is  merely  sought  to  restrain  the  defendants 
from  continuing  the  injury  all  may  be  joined.  Draper  v.  Bron'u,  113  Wis. 
361  (1902)  ;  Montccito  Valley  IV.  Co.  v.  Santa  Barbara,  144  Cal.  578  (1904)  ; 
IVdrrcn  v.  Parklnirst,  186  N.  Y.  45   (1906). 

In  England  the  rules  of  the  Supreme  Court,  order  xvi,  rule  4,  provide : 
"All  persons  may  he  joined  as  defendants  against  whom  the  right  to  any 
relief  is  alleged  to  exist,  whether  jointly,  severally  or  in  the  alternative, 
and  judgment  may  be  given  against  such  one  or  more  of  the  defendants  as 
may  be  found  to  be  liable,  according  to  their  respective  liabilities,  without  any 
amendment."  Under  this  rule  a  single  action  will  not  lie  for  several  torts. 
Sadler  v.  Great  IVcstcrn  R.  Co.,  L.  R.  (1896),  App.  Cas.  450;  Goiven  v.  Coul- 
hridge,  L.  R.  (1898),  i  Q.  B.  Div.  352.  But  where  the  right  to  relief  against 
both  defendants  arises  out  of  a  common  transaction  an  action  may  be  brought 
against  both.  Frankcnburg  v.  Great  Horseless  Carriage  Co.,  L.  R.  (1900),  i 
Q.  B.  Div.  504;  Bullock  v.  London  G.  Omnibus  Co.,  L.  R.  (1907),  i  K.  B. 
biv.  264;  Cnmpania  S.  D.  C.  C.  v.  Moulder,  L.  R.  (1910),  2  K.  B.  Div.  354. 

*' "At  the  common  law,  infants  were  required  to  sue  and  to  defend  by 


Io6  PARTIES 

presumed  to  exist,  and  which  can  not  be  questioned  unless  season- 
ably challenged,  and  may  then  lie  sui)plied.''*' 

Such  seems  to  have  been  tlie  view  taken  by  this  court  at  an 
earlv  dav,  by  a  rule  reciuiring  a  prochein  ami  permitted  to  prosecute, 
etc..  to  give  bond.  Parsons  v.  Jones,  9  Mass.  106,  note.  So,  it  has 
been  held,  that  the  name  of  a  person,  as  next  friend,  may  be  intro- 
duced, by  way  of  amendment,  in  a  writ  sued  out  in  (he  name  of  a 
minor.  Blood  v.  Harrington,  8-  Pick.  552. 

We  think  this  power  of  the  court,  to  api)oint  or  allow  a  next 
friend  to  prosecute,  is  recognized  by  R.  S.  ch.  79,  which  after 
providing  for  the  appointment  of  testamentary  and  probate  guar- 
dians, and  guardians  ad  litem,  adds:  "§  8.  Nothing  contained  in 
this  chapter  shall  impair  or  affect  the  power  of  any  court  of  common 
law,  probate  court,  or  court  of  a  justice  of  the  peace,"  "to  apjioint 
or  allow  any  ]-)erson,  as  next  friend  for  a  minor,  to  commence, 
prosecute  or  defend  any  suit  in  his  behalf."  It  presupposes  an  al- 
lowance and  appointment  of  the  next  friend ;  but,  like  a  power  of 
attorney  to  prosecute,  it  is  not  inquired  into  unless  specially  called 
in  (|uestion.  And  so  we  suppose  is  the  form  of  setting  forth  in  the 
writ,  according  to  the  form  stated  in  the  case  of  Trask  v.  Stone,  7 
Alass.  241,  where  both  the  attorneys  were  very  good  pleaders.  The 
plaintiff  was  an  infant,  and  sued  this  action  "by  A.  B.,  the  next 
friend  of  the  said  William,  who  is  admitted  by  the  court  here  to 
prosecute  for  the  said  William,  in  a  plea  of  trespass,"  etc.  But  it 
is  one  of  those  formal  averments  which  is  not  traversable.** 

In  practice,  we  know,  it  is  not  now  the  course  for  the  minor  or 
next  friend  to  procure  an  appointment  or  allowance  previously  to 
the  actual  commencement  of  a  suit,  because  usually  it  is  not  neces- 
sary;  yet  the  case  presupposes  tliat  the  authority  is  with  the  court  to 
allow,  they  may  of  course  disallow  the  nomination,  and  we  think, 
as  a  necessary  consequence,  they  may  revoke  the  authority.  Com. 
Dig.   Pleader,   2  C.    i.    Where  the  proceedings  appear   to  be   fair 


guardian;  by  whom  was  meant  not  tlie  guardian  of  the  infant's  person  and 
estate,  but  either  one  admitted  by  the  court  for  the  particular  suit  on  the 
infant's  personal  appearance,  or  appointed  for  suits  in  general  by  the  king's 
letters  patent.  By  the  statute  of  Westminster,  2  C.  15,  infants  were  author- 
ized to  sue  by  prochcin  ami  in  all  actions;  and  this  remedy  was  held  to  be 
cumulative,  leaving  it  optional  for  suit  to  be  brought  by  guardian  or  next 
friend."  Coke  Litt,  135  b.  note  i;  Young  v.  Young,  Cro.  Car.  86;  Goodwin 
V.  Moore,  Cro.  Car.  i6i\  Per  Waterman,  J.,  in  Chudlcigh  v.  Chicago,  R.  I.  & 
P.  R.  Co.,  51  111.  App.  491  (1893). 

The  father  has  the  first  and  best  right  to  act  as  next  friend  of  his  in- 
fant child.  Rue  V.  Meirs,  43  N.  J.  Eq.  377,  12  Atl.  369  (1887)  ;  Woolf  v.  Pem- 
berton,  L  R.  (1877),  6  Ch.  Div.  19;  Gulf  &c.  R.  Co.  v.  Lemons,  152  S.  W. 
1 189  CTex.  191 3).  Unless  his  interest  is  adverse.  Patterson  v.  Pullman,  104 
111.  80  (1882). 

"Accord:  Judson  v.  Blanchard,  3  Conn.  579  (1821)  ;  Barieick  v.  Racklcy, 
45  Ala.  215  (1871)  ;  Butler  v.  Winchester  Home,  216  Mass.  567  (1914)- 

'^  Paul  V.  Prierson,  21  Fla.  529  (1885).  AUhough  joined  in  the  suit  the 
next  friend  is  not  the  real  partv  in  interest.  The  infant  is  the  real  party. 
Duff\  V.  Pinard,  41  Vt.  297  (1868)  ;  Morgan  v.  Potter,  157  U.  S.  195  (1894). 
When  the  infant  comes  of  age,  the  fact  should  be  noted  of  record  and  there- 
after the  suit  should  be  conducted  in  his  own  name.  Holmes  v.  Adkins,  2 
Ind.  398  (1850). 


GUILD  V.   CRANSTON  IO7 

and  regular,  the  court  would  be  slow  to  interfere  and  revoke  tlie  au- 
thority, during  the  progress  of  a  suit.^"'  But  when  the  authority  has 
been  assumed  by  one  to  act  as  next  friend,  contrary  to  the  apparent 
interest  of  the  minor,  or  against  the  express  will  and  consent  of  a 
minor  old  enough  to  be  capable  of  judging,  and  the  attention  of  the 
court  is  called  to  it,  especially  where  an  application  is  made  by  or  in 
behalf  of  the  minor,  and  proper  cause  shown,  we  think  it  is  compe- 
tent for  the  court  to  revoke  the  authority  of  the  next  friend,  and 
stay  proceedings,  or  appoint  another.  Such  next  friend  is  the  ap- 
pointee and  officer  of  the  court,  as  an  instrument  for  the  advance- 
ment of  justice,  and  not  with  a  view  to  any  rights  or  interests  of 
his  own.  It  seems  to  follow,  as  a  legal  consequence,  that  his  au- 
thority  is  revocable.^'' 

""2.  The  next  question  is,  whether  sufficient  cause  is  shown  in 
the  present  case. 

It  is  said  that  the  ])roseciition  of  this  suit  can  not  operate  in- 
juriously to  the  minor,  because  it  is  to  recover  land,  which,  if  recov- 
ered, must  be  to  the  use  of  the  minor,  and  the  next  friend  can  not 
aliene  it.  But  this  is  far  from  being  conclusive.  He  may  so  conduct 
the  suit  as  to  fail,  and  she  may  have  a  judgment  against  her;  and, 
being  a  suit  rightly  prosecuted  in  her  behalf,  she  would  be  concluded 
by  it.  The  prochein  ami  is  a  volunteer,  and  gives  no  bonds.  The  suit 
was  commenced  and  prosecuted  without  her  knowledge  or  consent, 
and  against  her  will,  and,  as  it  appears,  contrary  to  her  own  convic- 
tions of  her  own  interest.  She  is  approaching  the  age  of  majority, 
and  it  does  not  appear  that  any  right  will  be  lost  by  a  postponement 
of  legal  proceedings  to  that  time.  The  law  recognizes  the  capacity 
of  a  minor  of  such  age  to  act;  for  many  purposes.  She  may 
nominate  and,  with  the  concurrence  of  the  judge  of  probate,  appoint 
a  guardian.  It  would  be  competent  for  such  a  minor  to  apply  orig- 
inally with  a  next  friend  to  have  him  allowed.  Applying  by  petition, 
signed  by  her  in  person,  avoids  the  technical  objection,  that  she  can 
not  constitute  an  attorney. 

It  is  an  appeal  to  the  judicial  discretion  of  the  court  upon  all  the 
circumstances;  and,  on  the  facts  discolsed,  the  court  are  of  opinion 
that  there  is  sufficient  ground  showTi  to  sustain  the  application. 

The  authority  of  Samuel  Guild,  as  next  friend,  withdrawn,  and 
all  proceedings  stayed,  by  consent  of  defendant,  without  costs  to 
either  party. ^' 

^^  Archer  v.  Frozvdc,  i  Strange  308  ( 173.3)-  It  i?  not  necessary  to  the 
prosecution  of  a  suit  bj-  a  procJiein  ami  that  the  infant  authorized  or  con- 
sented thereto.  Morgan  v.  Thornc,  7  M.  &  W.  400  (1841);  McCarrick  v. 
Keah,  70  Conn.  642  (1898)  ;  Pync  v.  Wood,  145  Mass.  558  (1888). 

"'Fulton  V.  Rosevclt,  i  Paige  N.  Y.  Ch.  178  (1828)  ;  O'Donnell  v.  Broad, 
i49]Pa^24J4822)  ;  Ruffcl  v.  Police  B.  Assn..  o  Pa.  ^^_R:j82(Tqooy       ^ 

'^'  Ali^  inTant  is  capable  of  suing  and  being  sued,  but.'Jor  the  protection  of  j 
his  interests,  he  is  not  permitted  to  sue  or  defend  alone,   the   suit  must  hei 
conducted  on   his  belialf  by.,.5  _guar.dian   ad  I  it  em   or   next    friend.     Miles  v.\ 
7?oy(f^~3nPicT^  "(TTass. )   21-5    (i82sT;'  TFUIon  v.    r.nnlikr.  .2  TTarr.   Del.  2Q 
( 1835 )  ;    Hardy  v    Sranlin.   Miles   Pa.  87    (183O  :   Heft  v McGill,  3   Pa.   256 
( 1846)  ;   Cavedcr  v.  Smith.  5  Iowa  157   (TH57)  ;  Clark  v.  Piatt,  30  Lonn.  2«2 
(1861);  Bush  V.  Liiithicttm,  $9  Md.  344   (1882)  ;  Boynton  v.  Clay,  58  Maine 
236    (1870);    Winer  v.  Mast,   146   Ind.   177    (1896);   Lazvson  v.   Kuchner,  50 


U^  PAKTIKS 

LEVYSTEIN  r.  O'BRIl^N.  / 

SuPKEMF.  Court  of  ALA^A^rA,  1894. 
106  Ala.  352. 

The  liill  in  this  cause  was  tiled  on  Sciitcinhcr  12,  by  the  heirs, 
mother,  sister  and  brothers  of  Archie  O'Brien,  Jr.,  deceased,  against 
Levvstein  Bros.,  and  avers  the  following  facts :  That  about  the  28th 
of  Ai>ril,  1894,  Levvstein  Bros,  obtained  a  judgment  against  the  said 
Archie  O'Brien,  Jr.,  in  a  justice  of  the  i)eace  court  of  Montgomery 
county,  upon  which  an  execution  was  duly  issued  and  levied  upon 
the  interest  of  said  Archie  in  certain  real  estate  in  the  city  of  Mont- 
gomery, and  on  motion  of  plaintiffs  therein,  in  the  circuit  court  of 
said  county,  to  which  these  pa])ers  were  transmitted,  an  order  was 
made  for  the  sale  of  said  property  so  levied  upon.  After  this,  and 
betore  the  sale,  the  said  Archie  OT>rien  died.  At  the  time  said 
judgment  was  rendered  in  the  justice  court,  and  at  the  time  of  his 
death,  the  said  Archie  was  a  minor.  No  guardian  ad  litem'  wa^ 
appointed  to  act  for  him,  and  no  notice  giWn'to'his  regularly  ap- 
pointed guardian ;  and  complainants  averred  in  their  bill  that  for 
failure  to  appoint  such  guardian  ad  litem,  the  judgment  is  void.  Tt 
is  not  denied  in  said  bill  that  the  said  Archie  had  due  notice  of  said 
proceedings,  nor  is  it  averred  that  any  plea  of  infancy  was  inter- 
posed to  any  of  said  proceedings.  It  is  not  denied,  that  the  debt  for 
which  said  judgment  was  rendered,  was  valid  and  binding  upon 
said  Archie,  nor  one  on  which  he  should,  in  equity  and  good  con- 
science, pay;  neither  is  it  averred,  that  the  said  Archie,  or  the  com- 
plainants in  said  bill,  could  prove  a  valid  defense  to  said  action.  The 
onlv  averment  upon  this  question  is,  "that  if  suit  were  properly  and 
legally  brought  on  said  claim  against  him,  there  is  a  full  and  legal 
defense  thereto."  There  is  no  ofifer  in  said  bill  to  pay  the  said  Levys- 
tein  Bros,  any  amount  that  might  be  found  due  them.  The  prayer 
is,  that  said  judgment  be  declared  void,  and  the  collection  thereof 
perpetually  enjoined. 

To  this  bill  respondents  interposed  several  grounds  of  demurrer, 

W.  Va.  344  (1901)  ;  Hurst  v.  Goodzvin,  114  Ga.  585  (1901)  ;  Clasen  v.  Prnhs, 
69  Neb.  278  (1903)  ;  Williams  v.  Cleveland,  76  Conn.  426  (1904)  ;  Bancroft 
V.  Bancroft,  85  Atl.  561  (Del.  1911).  A  judsment  obtained  by  a  next  friend 
is  not  open  to  collateral  attack  by  the  infant  on  tlie  ground  of  fraud  and 
colkision,  he  must  seek  to  have  the  judgment  itself  .set  aside.  Chndlcigh  v. 
Chicago  R.  I.  &  P.  Co.,  51  111.  App.  491  (1893).  In  some  jurisdictions  the 
suit  mu?t  be  by  a  guardian  ad  litem  not  a  next  friend.  New  York  Code  of 
Civil  Procedure,  §  469.  Hoftaiing  v.  Teel,  ii  How.  (N.  Y.)  188  (1855)  ;  Cal- 
vin V.  Hauenstein,  no  Mo.  575  (1892),  in  partition;  Blair  v.  Henderson,  49 
W.  \'a.  282  (1901).  As  a  defendant,  an  infant  must  be  represented  by  a 
pjiardian  ad  litem  and  not  bv  a  next  friend.  Szj^'ainv^  Fidelity  Ins.  Co.,  54 
Pa.  a:;;  V 1867)  ;  Biisli  v.  Linihicum,  59  Md.  344  (i8-:,2TTJpencer  v.  RohVml, 
106  Ind.  ?8o,  5  N.  K.  726  (1886),  statute;  Mitchell  v.  SpaHlding,^g6  Pa.  220 
(1903);  McXaughton's  Will,  136  Wis.  179   (1909)- 

in  England  under  the  rules  of  the  Supreme  Court,  Order  XVI,  rule  16, 
infants  may  sue  as  plaintiffs  by  their  next  friend  and  defend  by  their  guard- 
ians appointed  for  that  purpose.  See  Wolf  v.  Pemherton,  L.  R.  (1877),  6 
Ch.  Div.  19;  In  re  Duke  of  Somerset,  L.  R.  (1887)  ;  34  Ch.  Div.  465. 

The  guardian  ad  litem  or  next  friend  is  usually  tiie  nearest  relation  not 
concerned,   in   point   of   interest,   in   the  matter   in   question.      United   States 


LEVYSTEIN  V.   O  BRIEN  lOQ 

and  also  moved  to  dismiss  same  for  want  of  equity.  The  chancellor 
overruled  the  demurrers  and  the  motion  to  dismiss  the  bill  for  the 
want  of  equity;  and  from  said  decree  the  present  appeal  is  prose- 
cuted and  the  same  is  here  assigned  as  error. ^^ 

McClellan,  J. :  In  an  action  against  infants,  service  of  sum- 
mons must  be  had  upon  the  defendant,  as  upon  defendants  who  are) 
sui  juris;  and  such  service  is  as  efficacious  in  the  former  as  in  the/ 
latter  case  to  give  the  court  jurisdiction  of  the  cause.  Having  thus 
acquired  jurisdiction  of  the  person  of  an  infant  defendant^  it  is  the 
coujt^.duty..tQ,  appoint  a  guardian  ad  litem  to  make_  defense  for 
ITmi ;  but  afailure  to  discharge  this  duty  does  not  oust  the  court's 
j unsdictTohTwRicIi  has  already  attached;  iDut,  to  the  contrary,  if  the 
Tase  proceecTs'to  judgment  against  the  infant  without  such  appomJP 
ITferif," whether  upon  issue  joined  and  trial  had  or  upon  the  default  of 
tTie""defendant,  such  judgment  though  irregular  and  erroneous,  and 
to  be  so  declared  upon  appeal,  js  not  voijd,  and  is  therefore,  not  open 
to  impeachment  upon  collateral  attack,  i  Freeman  on  Judgments, 
§  151 ;  2  ib.  §  487;  10  A.  &  E.  Ency.  of  Law,  pp.  692-697;  Brown 
on  Jurisdiction,  p.  113;  Drake  v.  Hanshaw,  47  Iowa  292;  Joyce  v- 
McAvoy,  31  Cal.  273,  89  Am.  Dec.  172,  and  notes  pp.  185  et  seq. ; 
Siimnons  v.  McKay,  5  Bush.  (Ky.)  25.  This  doctrine  has  been 
recognized  by  this  court  in  the  analogous  case  of  a  lunatic  de- 
fendant. JValker  v.  Clay,  21  Ala.  797,  807.  And  there  is,  we  take 
it  nothing  in  the  suggestion  that,  because  of  the  mandatory  terms 
of  section  2579  of  the  Code,  a  judgment  against  an  infant  with- 
out tlie  appointment  of  a  guardian  ad  litem  is  not  merely  erro- 
neous and  irvegular  but  void.  This  section  is  equally  mandatory  in 
respect  of  suits  by  infants — they  "must  sue  by  next  friend,"  yet  it 
v.-ould  scarcely  be  insisted  that  a  judgment  at  the  suit  of  an  infant 
in  his  own  name  against  one  sui  juris  would  be  void.  The  succeed- 
ing section — 2580 — is  equally  mandatory  in  form  in  respect  of 
lunatics,  but,  as  w-e  have  seen,  judgments  against  lunatics  are  not 
void  though  this  mandate  has  been  disregarded.  And  a  reference  to 
the  authorities  cited  above  shows  that  under  equally  mandatory 
statutes  in  other  states,  the  ruling  has  been  that  a  failure  to  appoint 
a  guardian  to  defend  for  the  infant  is,  at  most,  reversible  error  and 


Bank  V.  Ritchie,  8  Pet.  (U.  S.)  1281  (1834)  ;  Jarvis  v.  Crocicr,  q8  Fed.  753 
(1899). 

The  next  friend  or  guardian  ad  litem  of  an  infant  plaintiff  is  generallj' 
held  liable  for  costs.  Bligh  v.  Trcdqett,  5  De  G.  &  S.  74  (i8si)  ;  ll'anng  v. 
Crane,  2  Pai-e  Ch.  (N.  Y.)  79  (1830)  ;  Wcad  v.  Cantn'cll,  36  Hun  (N.  Y.) 
528  (1885),  under  §  469  of  the  code;  Waimvright  v.  Wilkinson,  62  Md.  146 
(1884)  ;  Rauche  v.  Bliimcnthal,  4  Penn.  (Del.)  521  (1904)  ;  Burhach  v.  Mil- 
wankec  E.  R.  Co.,  119  Wis.  384  (1903)  ;  Reynolds  v.  Great  Northern  R.  Co., 
206  Fed.  1003  (1913).  Contra  Crandal  v.  Slaid,  52  Mass.  288  (1846)  ;  Sonle  v. 
Winslozv,  64  Maine  518  (1874);  Albec  v.  ll'interink,  55  Iowa  184  (1880). 
And,  even  where  not  liable  generally,  the  next  friend  may  be  taxed  with  costs 
when  guilty  of  mismanagement  or  bad  faitli.  SmitJi  v.  Smith,  108  N.  Car. 
365  (1891).  The  guardian  ad  litem  of  an  infant  defendant  will  not,  ordi- 
narily, be  charged  witli  costs.  Berryman  v.  Burgster,  6  Porter  (Ala.)  99 
(1837)  :  Morgan  v.  Morgan,  12  L.  T.  (N.  S.)  199  (1865),  and  see  59  Univ. 
of  Pa.  L.  Rev.  407. 

^Arguments  of  counsel  and  part  of  opinion  omitted. 


no  PAKTIKS 

not  matter  for  impeachment  of  the  jiult;ment  except  upon  direct 
assault. 

In  chancery,  infant  defendants  can  only  be  brought  in  by  serv- 
ice ujmn  their  parents  or  either  of  them,  if  in  life,  or  upon  their 
general  guardian,  in  case  the  parents  are  dead ;  provided  such  par- 
ents or  guardian  are  not  adversely  interested,  and  in  this  latter  case, 
or  if  there  be  no  parent  or  guardian,  then  upon  the  infant  person- 
ally if  over  fourteen  years  of  age,  etc.  Code,  p.  814,  R.  23.  Hence, 
wliat  is  said  in  Daily's  admr.  v.  Reid,  74  Ala.  415,  417,  as  to  the 
invalidity  of  a  decree  pro  confesso  against  an  infant  has  no  applica- 
tion to  a  judgment  at  law  on  personal  service  against  an  infant  de- 
fendant, especially  in  view  of  the  doctrine  there  announced  that  the 
chancery  court  "is  the  guardian  of  all  infant  litigants  before  it,  and 
will  permit  no  such  irregularity  and  error  [as  the  taking  of  a  decree 
pro  confesso  against  an  infant]  to  pass  unredressed."  Nor  was  it 
intended  by  this  language  of  the  court  in  that  case,  as  counsel  in- 
sist, to  convey  the  idea  that  the  substantive  rights  of  an  infant  stood 
upon  a  plane  different  from  and  higher  than  the  rights  of  persons 
sui  juris,  or  were  to  be  adjudged  by  a  different  standard,  but  only 
that  the  court  would  so  far  act  as  his  guardian  as  to  see  it  that  his 
abstract  rights  were  properly  presented  to  and  represented  before 
the  forum  of  conscience,  but  this  is  not  to  say  that  a  court  of  equity, 
any  more  than  a  common  law  court,  when  the  claim  of  the  infant 
is  fully  presented,  would  grant  any  other  relief  on  the  merits  thereof 
than  an  adult  litigant  would  be  entitled  to  on  the  same  facts.  It  is, 
therefore,  quite  an  error  to  suppose  that  chancery  will  enjoin  a  judg- 
ment at  law  against  an  infant  which  is  not  void  and  merely  irregular 
and  erroneous  on  the  theory  that  it  is  the  guardian  of  all  infant 
litigants,  wdien  it  is  without  competency  to  enjoin  such  a  judgment 
against  a  person  of  full  age.  The  w^ell  settled  law  is  that  chancery 
has  no  jurisdiction  to  enjoin  any  judgment  at  law  for  irregularities 
attending,  and  errors  committed  by  the  court  in,  the  rendition 
thereof  unless  such  irregularities  or  errors  were  of  a  character  to 
avoid  the  judgment  ipso  facto;  a  merely  erroneous  and  irregular 
judgment  whether  against  infants  or  adults  will  not  be  enjoined;  a 
void  judgment  against  either  will  be.  We  have  seen  that  the  judg- 
ment sought  to  be  enjoined  here  was  of  the  former  class;  it  was 
irregular  and  erroneous  but  not  void.  This  appears  by  the  bill.  And 
this  is  the  only  ground  upon  which  relief  by  injunction  is  sought; 
no  surprise,  accident,  mistake  or  fraud  is  alleged.  The  bill  was, 
therefore,  without  equity.  The  court  erred  in  overruling  the  mo- 
tion to  dismiss  for  want  of  equity,  and  also  in  overruling  those 
assignments  of  demurrer  which  went  to  the  point  we  have  been 
considering.  2  Freeman  on  Judgments,  §§  489,  513;  10  A.  &  E. 
Ency.  of  Law,  pp.  889  et  seq. ;  12  lb.  p.  147a;  Collier  and  Wife  v. 
Falk,  66  Ala.  223,  228;  Murphree  v.  Bishop,  79  Ala.  404;  Preston  v. 
Dunn,  25  Ala.  507. 

Reversed  and  remanded.^^ 


*°As  an  infant  can  only  appear  and  defend  by  a  guardian  ad  litem  the 
omission  to  appoint  such  a  guardian  is  reversible  error  in  all  cases  unless  it 


SYBELL  BELKNAP  S  CASE  III 

(b)   Married  Women. 

SYBELL  BELKNAP'S  CASE. 
In  the  King's  Bench,  1400. 
Year  Book,  i  Henry  IV,  i,  PI.  2. 

Our  lord  the  King  brings  a  writ  of  ward  against  Sybell  Belknap 
and  the  writ  brought  by  the  King  was  held  good.  Cokeine.  Judgment 
of  the  writ,  since  she  is  covert  of  a  husband  at  the  time  of  the  writ, 
etc.  Skrene.  Your  husband  for  a  crime  which  he  committed 
against  the  King  and  divers  of  his  peers  was  banished  to  Gascony  to 
remain  there  until  pardoned  by  the  King. 

Wherefore  Gascoigne,  ex  assensu  sociorum,  said  to  the  defend- 
ant, answer. 

And  after  that  she  pleads  in  bar.""   M.  10  Ed.  Ill,  53. 


\  appears  that  the  judgment  is  for  the  infant  and  not  to  his  prejudice.  Langston 
/v.  Bassette,  104  Va.  47  (1905)  ;  Weaver  v.  Glenn,  104  Va.  443  (1905)  ;  Sliver 
I  V.  Shelback,  i  Pall.  (Pa.)  165  (1786)  ;  Duncan  v.  Sand  ford,  14  Johns.  (N.  Y.)  ^ 
(  417  (1817)  :  Moore  v.  M'Ewen,  s  S.  &  R.  (Pa.)  ^7^  (1819)  ;  Foulkes  v. 
/  Yoking,  21  N.  J.  L.  438  (1848)  ;  McMiirray  v.  McMurray,  60  Barb.  (N.  Y.) 
'  117  (1870)  ;  Wells  V.  Wells,  144  Mo.  198  (1898)  ;  White  v.  Kilmartin,  205  111. 
525  (1903)  ;  Winterroth  v.  Cox,  75  Misc.  (N.  Y.)  467  (1912).    But  such  omis- 

!)sion  does  not  render  the  judgment  or  decree  void.  It  is  merely  voidable  and 
not  open  to  collateral  attack.  Austin  v.  Charleston  F.  Seminary,  49  Mass. 
196  (1844)  ;  Keller  v.  Wilson,  90  Ky.  350  (1890)  ;  Millard  v.  Mormon,  116  111. 
649  (1886)  ;  Childs  v.  Lanterman,  103  Cal.  387  (1894)  ;  Smith  v.  Blood,  106 
'  App.  Div.  (N.  Y.)  317  (1905),  unless  obtained  by  fraud  or  collusion,  Mc- 
Murray v.  McMurray,  66  N.  Y.  175  (1876)  ;  Wettrick  v.  Martin,  181  111.  App. 
94  (1913).  On  the  other  hand  the  failure  to  appoint  a  guardian  ad  litem  for 
an  infant  plaintiff  before  bringing  suit  is  not  a  jurisdictional  defect  but  a 
mere  irregularity  which  may  be  cured  or  waived.  Rima  v.  Rossie  Iron  Works, 
120  N.  Y.  433  (1890)  ;  Foley  v.  California  Horseshoe  Co.,  115  Cal.  184  (1896)  ; 
Chrisman  v.  Divinia,  141  Mo.  122  (1897)  ;  Parkins  v.  Alexander,  105  Iowa 
74  (1898). 

""  In  a  case  reported  in  the  following  year,  Y.  B.  2.  Hen.  IV.,  7,  pi.  26 : 
"It  was  testified  by  the  justices  that  the  wife  of  Sir  Robert  Belknap,  who  was 
exiled,  sued  a  writ  alone,  her  husband  not  being  named  in  the  writ,  and,  by 
their  award  in  that  suit,  the  said  suit  was  sufficient  because  her  husband  was 
attainted  at  law."    Markham,  J.  said: 

Ecce  modo  mirum,  quod  foemina  fert  breve  Regis, 
Non  nominando  virum  conjunctum  robore  legis. 
The  lady  was  the  wife  of  the  former  chief  justice  of  the  court  of  common 
pleas  banished  in  the  reign  of  Richard  II.    4  Foss'  Judges  35. 

"If  an  action  be  brought  against  a  husband  and  wife  for  the  debt  of  the 
wife,  when  sole,  and  the  plaintiff  recovers  judgment,  the  capias  shall 
issue  to  take  both  husband  and  wife  in  execution:  but,  if  the  action  was 
originally  brought  against  herself  when  sole,  and  pending  the  suit  she  mar- 
ries, the  capias  shall  be  awarded  against  her  only,  and  not  against  her  hus- 
band. Yet,  if  judgment  be  recovered  against  a  husband  and  v/ife  for  the 
contract,  nay,  even  for  the  personal  misbehavior  of  the  wife  during  her  cov- 
erture, the  capias  shall  issue  against  the  husband  only:  which  is  one  of  the 
many  great  privileges  of  English  wives."    Ill  Blackstone's  Commentaries  414. 


112  PARTI  F.S 


h.\tciii-:tt  r.  badi)i-:li-:v. 

Court  oi'  Common  Pleas,  1776. 
2  irilliani  Bhickstoiu-'s  Ri'f^orts,  1070. 


X 


Case  cTi^^ainst  the  (lefendant  Sophia  luuldclev  [without  any  addi- 
tion] by  John  Hatchett  and  William  P.oyse,  coachniakcrs  on  indebti- 
tartus  assumpsit,  for  work  and  labor  done,  and  tinchng  and  providing 
materials  and  other  necessary  things  for  the  defendant's  use.  She 
pleads  nonassumpsit  and  also  that  at  the  time  "when",  etc.,  she 
was  married  to  one  Robert  Baddeley,  her  husband,  who  is  still 
alive;  the  plaintiff  replies,  protestando  as  to  the  marriage,  that  the 
defendant,  before  the  cause  of  action  accrued,  eloped  from  the 
said  Robert  Baddeley.  and  hath  ever  since  lived  separate  from  him, 
"and  that  the  work  v\as  done  on  her  credit  only.  The  defendant  did 
not  rejoin  in  due  time,  and  judgment  w'as  signed  by  the  ])laintiffs 
on  the  5th  of  February,  1776,  for  want  of  a  rejoinder.  On  the  7th 
of  February  in  last  term.  Walker  moved  in  arrest  of  final  judgment 
(having  meant  to  demur  to  the  replication,  but  by  accident  slipped 
his  time)  that  the  replication  was  bad;  because,  i.  Supposing  the 
facts  to  be  true,  it  does  not  therefore  follow  that  she  is  liable  to  be 
sued  alone.  2.  It  should  not  have  been  alleged  that  she  eloped,  but 
that  she  lived  in  adultery.  .So  in  Rast.  230,  pi.  9  in  bar  of  dower, 
and  Robins.  Entr,  260.  3.  It  should  have  stated  the  cause  of  action 
to  have  been  for  necessaries.   And  now  in  this  term. 

Hill  and  Glyn  showed  for  cause,  that  the  replication  is  good. 
IClopement  is  a  well  known  term  in  the  law,  and  signifies  a  wife's 
departing  from  her  husband,  and  dwelling  with  the  adulterer. 
Terms  de  la  Ley;  Co.  Litt.  32a.  If  the  wife  elopes,  the  husband  is 
not  liable  to  pay  for  what  she  takes  up  on  credit.  Lungworthy  and 
Hackmore,  Ld.  Raym.  444.  No,  not  even  for  necessaries.  Stra.  647, 
706.  S.  P.  resolved  in  Manhy  and  Scott,  if  they  are  separated, 
though  not  for  adultery.  And  in  Deerley  and  Duchess  of  Mazarine, 
Salk.  116.  whose  husband  was  abroad,  the  court  intended,  that  they 
were  divorced,  and  refused  to  relieve  her  against  a  verdict. 

(jlvn  also  cited  CliUd  and  Hurdx'.v.an   (Mr.  Nott's  Case.)    Stra. 

Walker  in  sup[)ort  f)f  the  rule,  insisted,  that  the  very  admission 
of  the  fact  of  coverture  destroys  the  action.  If  a  feme  covert 
appears  as  a  feme  sole,  and  has  judgment  against  her,  she  and  her 
luisband  may  set  it  aside  by  writ  of  error,  alleging  the  coverture,  i 
Roll.  Abr.  759.  Styl.  254,  280.  The  eloj)ement  mentioned  in  the 
books,  is  merely  a  cause  of  losing  the  wife's  dower,  introduced  by 
the  statute  of  13  Ed.  1.  ch.  34,  and  did  not  exist  at  common  law. 
It  is  not  incumbent  on  me  to  maintain  that  an  action  lies  against 
the  husband  for  this  coachmaker's  bill ;  it  is  enough  that  it  does  not 
lie  against  the  wife  alone.  It  is  the  creditor's  folly  to  trust  her,  and 
(as  is  saifl  in  Stra.  875)  he  does  it  at  his  own  peril. 


IIATCIIETT  Z'.  BADDELY  II3 

DeGrey,  C.  J.:  The  word  elopement  is  not  a  legal  term,  nor 
has  any  express  meaning  in  the  law.  It  is  not  to  be  found  in  Brac- 
ton,  Britton  or  Fleta;  nor  is  used  in  the  statutes  of  Westm.  2.  The 
Mirror  indeed  has  the  word  elopa ;  but  in  a  different  sense.  And 
none  of  the  dictionaries,  or  etymologists  explain  the  word,  except 
Blount  and  Jacob.  Lord  Coke  is  the  first  that  I  remember  to  have 
mentioned  it,  and  he  speaks  2  Inst.  435  of  a  wife's  eloping  and  re- 
maining with  an  adulterer.  The  modern  books  never  speak  of  elope- 
nuent,  but  in  a  criminal  view. 

But  it  is  quite  indifferent,  as  to  forming  my  opinion  on  this  case, 
in  what  sense  the  word  is  to  be  taken.  The  present  case  is  not  that 
of  a  woman  having  separate  maintenance,  and  living  apart  from  her 
husband  by  his  express  permission ;  but  of  a  wife  departing  from  her 
husband's  house,  or  if  you  please  elo])ing  without  his  consent.  She 
is  in  c\cr>-  vicv,  c\cm  in  respect  of  (lower  (unless  adultery  be 
"^rov'edj  a  feir.c  co\erl;  ;ni(l  as  sncli  c'lii  :ieitlier  sue  or  be  sued  alone. 
This  is  tiie  i^em  ral  law.    The  ex,-e]>[ions  to  this  are: 

1.  Local  customs,  as  in  the  city  of  London,  where  a  feme  covert, 
being  a  sole  trader,  may  be  sued.  But  there  the  husband  must  be 
joined  in  the  action  at  the  outset,  for  conformity. 

2.  The  wife  of  an  exile,  one  abjuring  the  realm,  or  perhaps  one 
professed;  who  are  looked  upon  as  dead  in  law. 

3.  The  same  law  has  been  extended  to  cases  somewhat  like  the 
former,  as  the  Duchess  of  Mazarine's  case,  whose  husband  lived  in 
France. 

All  these  are  by  the  acts  of  the  husband,  but  no  act  of  the  wife 
can  ever  make  her  liable  to  be  sued  alone.  If  she  can  be  sued,  she 
can  sue,  acquire  property,  release  actions,  execute  deeds,  etc., 
which  would  overturn  first  principles.  On  the  whole,  therefore,  I 
am  clearly  of  opinion  the  defendant  is  not  in  a  capacity  to  be  sued 
alone. 

Gould,  J. :  I  think  this  case  is  not  ripe  for  a  general  determina- 
tion upon  principles,  because  in  my  opinion  the  replication  is  ill 
pleaded.  Elopement  is  a  word  of  too  vague  and  uncertain  a  mean- 
ing. If  adultery  is  intended  by  it,  it  should  not  be  thus  insinuated, 
but  plainly  expressed.  6  Edw.  Ill  39.  Rastel.  Dower  t.  Bar.  e.  It 
is  on  this  I  found  my  opinion. 

Blackstone,  J. :  It  seems  to  be  supposed  by  the  argument,  that 
if  the  husband  is  not  bound  to  pay  this  debt,  it  follows  that  the  wife 
may  be  compelled  alone.  But  this  is  no  legal  consequence.  I  think 
in  the  present  case,  that  it  can  not  be  recovered  of  either.  And  I 
see  no  hardship  in  a  man's  losing  his  money,  that  avows  upon  the 
record,  that  he  furnished  a  coach  to  the  wife  of  a  player  whom  he 
knew  to  have  run  away  from  her  husband.  If  this  were  universally 
known  to  be  law,  it  would  be  difficult  for  such  women  to  gain  credit ; 
and  this  would  consequently  reduce  the  number  of  wanderers.  But, 
be  this  as  it  may,  I  am  clearly  of  the  opinion  that  in  no  case  can  any 
feme  covert  be  sued  alone,  except  in  the  known  excepted  cases  of 
abjuration,  exile,  and  the  like;  where  the  husband  is  considered  as 
dead,  and  the  woman  as  a  widow  or  else  as  divorced  a  vinculo.    Co. 

8 — Cjv.  Proc. 


114  rAKTll'S 

Lit.  r^^^v  Aiul  ihcrol'orc  IJizabctli  W'ilnK-t,  whose  husband  was 
ahrivncl.  when  she  attempted  to  sue  alone,  Moor  851,  did  it  with  the 
addition  o\  widow.  The  contrary  doctrine  mihtates  ag'ainst  the  first 
principles  of  the  ICntjlish  law,  wliich  considers  the  woman's  powers, 
nay  almost  her  very  being;,  as  sus[)endcd  durinjj  the  coverture.  Her 
contract  is  merely  void  so  as  to  bind  herself,  say  all  the  judges  in 
.\finib\'  anil  Scot,  i  Sid.  120.  She  and  her  luisband  may  ])lead  non 
est  factum  to  her  bond.  Salk.  7.  6  Mod.  311.  2  Wms.  144.  If 
judgment  be  had  against  her,  or  she  be  outlawed,  her  husband  and 
she  may  reverse  it  by  writ  of  error.  Bro.  Abr.  ICrror.  173.  The 
very  forms  of  the  action  demonstrate  the  same  thing.  If  sued  alone 
she  can  have  no  addition  (as  in  the  case  at  bar)  which  is  in  the  teeth 
of  die  statute  of  i  Hen.  V.  c.  5.  If  sued  by  her  maiden  name  it  is 
misnomer,  6  Mod.  311.  vShe  can  not  ]Hit  in  bail  without  her  hus- 
band. Cro.  Jac.  445.  If  l)y  her  husband's  name  and  as  widow  it 
is  the  like.  And  as  the  previous  steps  are  thus  embarrassed,  so  after 
judgment  the  remedy  must  prove  defective.  No  elegit  can  go 
against  her  lands,  else  this  would  be  a  mode  of  alienation  by  a  feme 
covert  without  a  fine.  It  would  be  endless  to  pursue  this  idea 
through  all  its  legal  absurdities.  And  therefore  I  am  clearly  of 
opinion  for  arresting  the  judgment. 

Nares,  J.,  concurred  in  opinion,  that  no  action  would  lie  against 
a  feme  covert  without  her  husband.  Therefore, 

Judgment  arrested  per  tot.  Cur.''^ 


/ 


"At  common  law  a  married  woman  could  not  sue  or  be  sued  as  a  feme 
sole  unless  her  husband  was  an  alien  who  had  always  resided  abroad  or  was 
civillv  dead.  Marsh  v.  Hutchisson,  2  B.  &  P.  226  (1800)  ;  Marshall  v.  Rut  ton, 
8  Tei-m  Rep.  545  (1800)  ;  Carrol  v.  Blencon,  4  Espin.  N.  P.  27  (1801)  ;  Kay  v. 
Dnchcsse  Dc  Picnnc,  3  Camp.  123  (1811)  ;  Lewis  v.  Lee,  3  B.  &  C.  291  (1824)  ; 
Bardcn  V.  Kcrcrherv,  2  M.  &  \V.  61  (1836);  Gregory  v.  Paul,  15  Mass.  30 
(1818)  ;  Pryyv  V  Bnilrnn  TO  S  K^  R.  (Pa.)  208J282O  ;  StocktOH  V.  Farley. 
10  W.  Va.  171  (1877).  In  FLquity  too,  the  rule  was  to  join  the  husband  as 
the  natural  protector  of  her  interests.  Bein  v.  Heath,  6  How.  (U.  S.)  228 
(1848)  ;  Burns  v.  Lynde,  88  Mass.  305  (1863).  Where,  however,  the  equity  of 
the  wife  is  adverse  to  her  husband  a  next  friend  sliould  be  joined  as  complain- 
ant and  the  husband  made  a  defendant.  Johnson  v.  Vail,  14  N.  J.  Eq. 
423  (1862)  ;  Porter  v.  Bank  of  Rnthland,  19  Vt.  410  (1847).  See  Roberts  v. 
Evans,  L.  R.  (1878)  7  Ch.  Div.  830.  As  at  law,  the  equity  rule  has  been  mod- 
ified in  modern  practice  under  the  statutes  enlargins  the  married  women's 
riphts.  Forbes  v.  Tuckennan,  115  Mass.  115  (1874)  ;  JJeckman  v.  Ileckman. 
2i5Pa.  202(1906).  In  matrimonial  cases  the  wife  sued  or  defended  without 
Tf  fVJVr  IHeml.     Van  Ordcn  v.  Van  Orden,  58  N.  J.  Eq.  545  (1899). 

It  was  formerly  held  that  where  the  husband  was  a  native,  the  wife  could 
not  sue  or  be  sued  as  a  feme  sole  althoush  deserted  by  the  husband  who  had 
pone  abroad.  Bogget  v.  Frier,  11  East  301  (1809)  ;  Robinson  v.  Reynolds,  I 
Aiken  (Vt.)  174  (1826).  In  America  the  rule  was  relaxed  and  it  has  been 
frequently  held  that  where  a  husband  has  permanently  abandoned  his  wife, 
the  latter  may  sue  or  be  sued  as  a  feme  sole.  Arthur  v.  Broadnax,  3  Ala.  557 
(1842)  ;  Love  v.  Moyneham,  16  111.  277  (1855)  and  cases  tliere  cited;  Oshorn 
V.  Nelson,  59  Barb.  (N.  Y.)  375  (1871)  ;  Wolf  v.  Baureis,  72  Md  481  (1890). 
This  is  frequently  a  matter  of  statutory  provision.  Matterson  v.  Dederkey, 
12  R.  I.  68  (1879)  ;  Heath  v.  Morgan,  117  N.  Car.  504,  22,  S.  E.  489  (1895)  ; 
Muller  V.  Hale,  138  Cal.  163  (1902);  Koch^v.  Williamsport,  195  Pa.  488 
(irKX))  ;  Schmeher  v.  Chester  Traction  Co.,  218  Pa.  29  (1907). 


STARR  V.  TAYLOR  1 15 

STARR  V.  ANN  TAYLOR,  alias  TAYLOR  &  CO. 

Court  of  Appeals  of  South  Carolina,  1828. 

4  McCord  L.  {S.  Car.)  413. 

This  was  a  suit  by  sum.  pro.  brought  on  a  note  signed  Taylor  & 
Co.  against  Ann  Taylor,  a  sole-trader,  without  joining  her  husband. 

The  defendant  pleaded  that  she  was  feme  covert,  and  although 
a  sole-trader,  yet  that  her  husband's  name  should  have  been  joined 
for  conformity  sake.  The  plaintiff  replied,  that  by  the  Act  of  As- 
sembly of  1744,  (Pub.  Laws  190,  2d  Brev.  Dig.  348,)  it  was  enacted 
that  a  feme  covert,  a  sole-trader,  might  be  sued  as  a  feme  sole, 
without  joining  her  husband.  Gaillard,  J.,  presiding,  overruled  the 
objection  of  the  defendant,  and  gave  a  decree  for  tlie  plaintiff. 
McCord  for  the  defendant  appealed  on  the  ground  that  the  husband 
should  have  been  joined.^- 

CoLcocK,  J. :  The  clause  of  our  act  is  in  the  f ollov/ing  words : 
"That  any  feme  covert  being  a  sole-trader  in  this  province,  shall  be 
liable  to  any  suit  or  action  to  be  brought  against  her  for  any  debt 
contracted  as  a  sole-trader,  and  shall  also  have  full  power  and  au- 
thority to  sue  for  and  recover,  naming  the  husband  for  conformity, 
from  any  person  whatsoever,  all  such  debts  as  have  or  shall  be 
contracted  with  her  as  a  sole-trader.  And  that  all  proceedings  to 
judgment  and  execution,  by  or  against  such  feme  covert,  being  a  sole 
trader,  shall  be  as  if  such  woman  was  sole  and  not  under  coverture, 
any  lav/  or  custom  to  the  contrary  thereof  in  anywise  notwith- 
standing." 

If  Vv-e  had  no  other  guide  to  direct  us  in  this  case  than  the  act, 
the  opinion  of  the  presiding  judge  might  be  supported;  for  it  would 
appear  from  the  construction  of  the  clause,  that  the  joining  of  the 
husband  for  conformity  relates  only  to  the  power  which  is  given  to 
her  to  sue.  It  does  seem  to  have  declared  in  the  first  part  of  the 
clause,  that  she  may  be  sued  for  debts  contracted  as  sole  trader, 
without  the  necessity  of  the  husband  being  joined.  But  when  we 
trace  this  departure  from  the  law,  which  relates  to  husband  and 
wife  to  its  source,  v/e  can  not  but  perceive  the  meaning  of  the  legis- 
lature although  somewhat  ambiguously  expressed.  This  partial 
dissolution  of  the  contract  of  marriage  originated  in  a  custom  of 
London,  and  upon  turning  to  the  authorities,  it  will  be  found  to  be 
expressed  in  language  very  similar  to  that  of  our  act,  and  that  even 
in  the  city  courts  there  the  husband  must  be  joined,  (as  it  is  said 
for  conformity)  v/hether  she  sue  or  be  sued;  and  as  Lord  Eldon 
says,  in  the  case  of  Beard  v.  Wehh,  2  Bos.  &  Pul.  99,  it  will  be  diffi- 
cult to  show  that  the  right  to  sue,  and  the  liability  to  be  sued,  do  not 
stand  upon  the  same  footing.  In  that  case,  the  first  question  was, 
whether  a  feme  covert,  sole-trader  in  London,  is  liable  to  be  sued 
as  such  at  Westminster,  and  whether  the  husband  ought  not  to  be 
joined  in  the  action?     On  the  first,  Lord  Eldon  decides  that  she 


"Arguments  of  counsel  and  part  of  the  opinion  are  omitted. 


Il6  PARTII'S 

could  not  be  sued  iu  that  court;  anJ,  on  the  second,  he  goes  into  a 
most  elaborate  argument,  and  refers  to  all  the  authorities  that  can 
be  found  on  the  sul)iect.  And,  since  his  decision  in  that  case,  which 
was  in  iSoo,  I  do  not  iind  that  the  point  has  been  ducstioned,  but 
seems  to  be  spoken  of  as  settled.     *     *     * 

In  this  elaborate  opitiion.  Lord  h^ldon  adverts  to  what  may 
be  considered  as  the  only  argument  against  this  rule  of  law,  which 
is,  that  it  is  absurd  to  join  a  party  in  an  action  against  \vhoni  there 
can  be  no  judgment.  But,  he  says,  "the  question  is,  whether  upon  the 
authority  of  this  single  dictum  we  are  to  overturn  the  series  of  deci- 
sions which  I  have  traced  from  ist  Eldw. — ,  to  the  present  day." — 
He  concludes  by  examining  some  cases  of  settlements,  in  which 
there  appear  to  have  been  some  doubts  at  least,  entertained  on  this 
point.  But  the  case  of  Marshall  v.  Rutton,  8  Term  Rep.  545,  had 
not  been  at  this  time  decided,  but  was  ])cnding  before  the  twelve 
judges,  in  which  it  is  decided  that  a  feme  covert  can  not  contract 
and  be  sued  as  a  feme  sole,  even  though  she  be  living  apart  from  her 
husband,  having  a  separate  maintenance  secured  to  her  by  deed. 

I  am  of  the  opinion,  therefore,  that  when  the  legislature  intro- 
duced by  act  diis  custom  of  London,  they  meant  to  introduce  it  as 
practiced  tb.ere ;  and  I  feel  no  disposition,  nor  do  I  think  it  comports 
with  the  sacred  contract  of  marriage,  or  the  good  of  the  commu- 
nity, to  extend  this  partial  dissolution  of  the  husband's  authority 
over  the  wife,  and  to  subject  her  to  be  torn  from  her  family  by  the 
rude  hands  of  unfeeling  bailitTs,  at  a  moment  when,  perhaps,  they 
may  most  need  her  assistance. 
Motion  granted.'-*' 


"'By  the  custom  of  London  "where  a  woman  exerciseth  a  trade  wherein 
her  husband  doth  not  intermeddle,  she  shall  have  all  advantapes,  and  shall 
be  sued  as  a  feme  sole  merchant,"  Bohim's  Privileges  of  London,  187.  But 
a  feme  sole  trader  of  London  was  not  liable  to  be  sued  as  such  in  the  courts 
at  Westminster  and  even  in  the  citv  courts  the  husband  was  joined  for  con- 
formitv.  Y.  B.  Q  Edward  IV.  35.  Candell  v.  Shazv.  4  T.  R.  361  (179O  ;  Beard 
V.  Webb,  2  B.  &  P.  93  (1800),  where  the  cases  are  reviewed.  South  Carolina 
seems  to  have  adopted  the  custom  more  completely  than  the  other  states. 
Megrath  v.  Robertson,  i  Desaussure's  S.  Car.  Eq.  445  (1705)  ;  Newbiggin  v. 
Pillciis.  2  Bav  (S.  Car.)  162  (1798)  ;  MeDaniel  v.  Cornwall,  9  Hill  S.  Car.  L. 
277  (i833);'Dio/  v.  Heuffer,  3  Richardson  S.  Car.  78  (1846);  Hobart  v. 
Lemon.  3  Richardson  S.  Car.  L.  131  (1846).  The  existence  of  the  custom  has 
been  denied  in  other  states,  iltlerville  v.  Barber,  S2  Miss.  168  (1876)  ;  Carey 
V.  Burruss,  2  VV.  Va.  571  (1882).  In  Pennsylvania  by  the  act  of  February  22, 
1 718,  I  Sm.  L.  09,  §  1,  where  mariners  or  others  went  to  sea  leaving  their 
Kvives  at  shop-keeping  or  other  trades,  such  wives  were  deerned  feme  sole 
/traders  and  authorized  to  sue  and  be  sued  without  naming  their  husbands  as 
/parties.  RurLcJi^injde^  2  S.  &  R.^JPii4-l^3Llj8i6)  ;  Jacobs  v.  Featherstotie, 
I  6  W.  &  S.  (Pa.)  .^46  '(1843)  ■  By  the  act  ofMay  4,  iSsS,  P.  L.  430,  §§  2,  4, 
I  wHefF^  husband  neglects  to  provide  for  or  deserts  his  wife,  she  shall  have 
I  the  privileges  of  the  act  of  1718  and,  on  petition,  will  be  granted  a  certificate 
to  that  effect.  IVuUermtzjv.  Porter,  86  ]\a.  2>K  C1877)  ;  Eunng's  Af-^^eal^jioi 
Pa.  371  iiSS'jl-rr.llison  v.  A >idrrson;  110  Pa.  486  (1885)  and  P.  &  L.  Dig.  of 
Pa.  Dec,  vol.  8,  coT  13Q02. 

In  other  states  similar  statutes  authorizing  married  women  to  engage  in 
trade  also  provide  that  they  may  sue  and  be  sued  alone  in  respect  to  matters  inci- 
dental to  the  business.  Young  v.  Gori,  13  Abb.  Pr.  (N.  Y.)  13  note  (1861)  ;  Klen 
v.  Gibney,  24  How.  Pr.  (N.  Y.)  31  (1862)  ;  Foster  v.  Conger,  61  Barb.  (X.  Y.) 


I.UMLEY  t'.   TORSIELLO  llj 

\ 

LUMLEY  V.  TORSIELLO. 
Supreme  Court  of  New  York,  1902. 

69  App.  Div.  {K.  Y.)  76. 

Ingraham,  J. :  The  action  is  brought  to  recover  for  the  conver- 
sion of  a  United  States  bond  of  the  par  value  of  $1,000  and  $165  in 
money  dehvered  b\-  the  plaintiff  to  the  defendant  as  her  agent.  The 
answer  denied  eacli  of  the  allegations  of  the  complaint.  Upon  the 
trial  the  court  submitted  the  case  to  the  jury  with  a  charge  to  which 
there  was  no  exception,  and  the  jury  found  a  verdict  for  the  plaintiff. 
The  ques'tion"  upon  this  appeal  is  presented  upon  the  denial  of  a  mo- 
tion to  dismiss  the  complaint  at  the  end  of  the  plaintiff's  case,  re- 
newed at  the  end  of  the  defendant's  case,  to  which  rulings  the  de- 
fendant excepted.^* 

The  defendant  ba_s£dJus_motion  to  dismiss  the  complaint  upon 
the  qround  that  tlic  ])laintiff  being  a  married  woman  could  not  main- 
~tain  an  action  to  recover  this  bond  and  money  delivered  to  tlie 
defendant  without  proving  tliat  she  had  a  separate  estate,  but  this 
contention  is  based  upon  an  evident  misconception  of  the  rights  of  a 
married  woman  under  the  law  of  this  state.  By  section  21  of  the  Do- 
mestic Relations  Lav>-s  (Laws  of  1896,  ch.  2y2)  it  is  provided  that  "A 
married  woman  has  all  the  rights  in  respect  to  property,  real  or 
personal,  and  the  acquisition,  use,  enjoyment  and  disposition  there- 
of, and  to  make  contracts  in  respect  thereto  with  any  person,  in- 
cluding her  husband,  *  *  *  as  if  she  were  unmarried";  and 
by  section  450  of  the  Code  of  Civil  Procedure  it  is  provided  that  "in\ 
an  action  or  special  proceeding  a  married  woman  appears,  prose- I 
cutes  or  defends  alone,  or  joined  with  other  parties,  as  if  she  was 
single."  There  can  be  no  question  but  what,  if  the  plaintiff  was  a 
single  woman,  upon  evidence  that  she  delivered  money  or  property 
to  the  defendant  upon  his  promise  to  return  them  to  her,  she  could 
maintain  an  action  to  recover  such  property  without  proof  of  odier 
facts  as  to  ownership.  How  she  obtained  possession  of  this  money 
or  property  would  be  entirely  immaterial  to  the  defendant.  As  a 
married  woman  now  sues  in  respect  to  such  property  as  if  she 
were   single,   a   defendant   who   receives    from   a   married   woman 


145  (1871)  ;  Parker  V.  Symonds,  93  Mass.  258  (1861)  ;  Todd  v.  Clapp,  118  Alass. 
495  (1875)  ;  Rock-ii'ell  v.  Clark,  44  Conn.  534  (1877)  ;  Meyers  v.  Rahte,  40  Wis. 
655  (1879);  Camden  v.  Mullen,  29  Cal.  564  (1866);  Trieher  v.  Stover,  30 
Ark.  727  (1875)  ;  Wallace  v.  Rowley,  91  Ind.  586  (1883).  As  to  farming  com- 
pare Snow  V.  Sheldon,  126  Mass.  332  (1879)  with  Jn  re  Long,  Ir.  Rep.,  2  K. 
B.  343  (1905). 

In  England  the  married  v/oman's  property  act  o£  1882  (45  &  46  Victoria, 
ch.  75,  §§  I,  5)  provides  that  a  married  woman  carrying  on  a  trade  sepa- 
rately from  her  husband  shall,  in  respect  to  her  separate  estate,  be  subject  to 
the  bankruptcy  laws.  In  re  Gardiner,  L.  R.  (1888)  20  Q.  B.  Diy.  249.  In  the 
United  States  a  married  woman  can  be  declared  a  bankrupt  if  she  has  the 
requisite  capacity  under  the  state  law  to  contract  debts  in  trade.  MacDonald 
V.  Teit  Weller  Co.,  128  Fed.  381   (1Q04). 

'^  Part  of  tlie  opinion  is  omitted. 


IlS  I'ARTIF.S 

money  or  property  with  a  promise  to  return  it  to  her,  can  no  more 
object  to  her  suing  to  recover  jiosscssion  of  it  on  the  ground  that  the 
source  of  her  title  to  the  property  is  not  proved  than  lie  could  if  she 
were  single. 

Upon  the  whole  case  we  think  there  was  no  substantial  dispute 
as  to  the  plaintiff's  right  to  recover;  that  the  verdict  of  the  jury  was 
amply  sustained  by  the  evidence  and  that  no  error  was  committed 
which  would  justify  a  reversal  of  the  judgment. 

The  judgment  and  order  appealed  from  are,  therefore,  affirmed, 
with  costs. 

Van  Brunt,  P.  ].,  O'Brien  and  Hatch,  ]].,  concurred. '•^ 


"The  removal  of  the  disabilities  of  coverture  has  been  accomplished 
gradually  by  successive  statutes ;  in  some  states  the  process  is  still  incom- 
plete. Hence  it  is  impossible  to  state  any  general  rules  on  this  subject,  but 
in  each  case  the  statutes  of  the  particular  state  must  be  consulted.  The 
progress  of  the  law  may  be  illustrated  by  tiie  New  York  codes.  Under  the 
earlier  code  (§  114)  it  was  provided  that  where  a  married  woman  was  a 
party,  her  husband  must  be  joined  except,  (i)  where  the  action  concerned 
her  separate  property,  (2)  where  the  action  was  between  herself  and  her 
husband.  Palmer  v.  Davis,  28  N.  Y.  242  (1863).  This  section  has  been  fol- 
lowed in  the  codes  of  other  states,  for  example  California  Code  of  Civil 
Procedure  §  370.  In  other  states  statutes  have  conferred  similar  rights  so 
that  in  nearly  all  jurisdictions  a  married  woman  may  sue  or  be  sued  alone  in 
reference  to  her  separate  property.  Emerson  v.  Clayton,  32  111.  493  (1863)  I 
Securer  v.  Sioux  City  R.  Co.,  2.2  Minn.  29  (1875)  ;  Van  Cleve  v.  Rook,  40  N. 
J.  L.  25  (1878)  ;  Stevenson  v.  Morris,  37  Ohio  St.  10  (1881)  ;  IVeldon  v.  De 
Bathe,  L.  R.  (1884),  14  Q.  B.  Div.  339;  Wolfe  v.  Underivood,  91  Ala.  523 
(1890);  Norfolk  R.  Co.  v.  Dougherty,  92  Va.  372  (1895);  Hutton  v.  Wil- 
mington C.  R.  Co.,  3  Penn.  (Del.)   159  (1901). 

The  Code  of  Civil  Procedure  of  New  York  §  450  as  amended  in  1890 
and  1909,  provides :  "In  an  action  or  special  proceeding  a  married  woman  ap- 
pears, prosecutes  or  defends  alone  or  joined  with  other  parties  as  if  she  was 
single.  It  is  not  necessarj^  or  proper  to  join  her  husband  with  her  as  a  party 
in  any  action  or  special  proceeding  affecting  her  separate  property.  The 
iiusband  is  not  a  necessary  or  proper  party  to  an  action  or  special  proceeding 
to  recover  damages  to  the  person,  estate  or  character  of  his  wife.  The 
husband  is  not  a  necessarj'  or  proper  party  to  an  action  or  special  proceeding 
to  recover  damages  to  the  person,  estate  or  character  of  another  on  account 
of  the  wrongful  acts  of  his  wife  committed  without  his  instigation."  Janinsky 
V.  Heidelberg,  21  Hun  (N.  Y.)  439  (1880);  Qitilty  v.  Battie,  135  N.  Y.  201 
(1892).  In  the  words  of  Vann,  J.:  "All  courts  are  open  to  her  and  she  can 
enter  them  with  the  freedom  of  a  man."  }*/inter  v.  Winter,  191  N.  Y.  462 
(1908). 

In  Pennsylvania,  the  Act  of  June  8,  1893  (P.  L.  345,  §  3)  provides: 
"Hereafter  a  married  woman  may  sue  and  be  sued  civilly  in  all  respects 
and  in  any  form  of  action  and  with  the  same  effect  and  results  and  conse- 
quences as  an  unmarried  person."  But  she  may  not  sue  her  husband, 
nor  he  her,  except  in  a  proceeding  for  divorce,  or  in  a  proceeding  to  protect 
or  recover  her  or  his  separate  property  where  there  lias  been  desertion 
without  sufficient  cause.  Nor  may  she  be  arrested  or  imprisoned  for  her  torts. 
I  3  P.  &  L.  Dig.  (2d  ed.)  4879.  Littste^\  /,t».f/'r>\TjTPa^j7^i(  rSn-?)  :  Stahr 
■  V  /?r.^7.vr.  ^^^  ^'  ^'"'3  (^8^?^^  ;  (justmev.  IVcstcnBcrmr,  224  h^  455  CIS09). 
The  act  of  i8f>3  does  not  deprive  a  married  wornan  01  the  rightTTrtiTvoke  the 
aid  of  a  court  of  equity  to  secure  the  possession  of  her  separate  property 
against  the  fraud  of  her  husband.  Hecknian  v.  IIccktuan^-2\s  Pa.  203  (1906). 
See  also  Lav.s  of  New  Jersey,  May  17,  1906  (P.  L.  525)  ;  Iowa  Code  (1897) 
§§  3162,  3164;  Revised  Laws  of  Minnesota  Supplement  (1907)  §  3607.  Bliss 
on  Code  Pleading  (3d  ed.)   §  34. 

Where  the  action  is  in  respect  to  the  wife's  separate  property  it  has. 


HARRIS  V.  WEBSTER  119 

HARRIS  V.  WEBSTER.  4^ 

Supreme  Court  of  New  Hampshire,  1878. 
58  N.  //.  481. 

Case  for  slanderous  words  spoken  of  Mrs.  Harris  by  Mrs. 
Webster.    The  defendants  demurred. 

Foster,  J. :  By  the  doctrine  of  the  EngHsh  common  law,  hus- 
ban_d_and  wife  havealways  been  requiredto  sue  jointly  for  injuries 
To'tlae  peFson  of' character  "of  the  wife,  committed  during  coverture. 
Dfcey  on  Parties  389;  i  Ch.  PI.  y2>-  The  wrongful  act — for  exam- 
ple, an  assault  upon  the  wife — may  involve  two  distinct  wrongs, 
and  afford  two  distinct  causes  of  action.  The  first  is  the  assault 
upon  the  wife;  and  the  second  is  the  damage  occasioned  thereby 
(through  loss  of  service)  to  the  husband.  The  husband  can  not 
sue  alone  merely  for  the  injury  done  to  the  wife,  but  he  may  sue 
alone  for  the  damage  occasioned  thereby  to  himself.^''  In  like  man- 
ner, at  common  law,  in  an  action  for  the  slander  of  the  wife,  if  the 
words  are  actionable  per  se,  the  husband  and  wife  must  join  in  a 
suit  for  the  direct  injury  to  her  {Dengate  v.  Gardiner,  4  M.  &  W. 
5),  but  the  husband  must  sue  alone  for  consequential  damage  to 
him;  and  so,  also,  if  the  words  are  not  actionable  in  themselves,  but 
only  because  tliev  cause  damage  to  the  husband,  he  must  sue  alone; 
t^ie'wife  can  net  j<jin.  Dicey  on  Parties  391,  392.""  So,  also,  at  com- 
mon law,  husband  and  wife  must  be  sued  jointly  for  all  torts 
committed  by  the  wife  during  coverture,  unless  the  tort  be  commit- 
ted in  the  presence  and  by  the  direction  of  the  husband,  in  which 
case  he  alone  is  liable.  Dicey  on  Parties,  476 ;  i  Starkie  on  Slander 
349;  I  Ch.  PI.  93;  Carleton  v.  Hayward,  49  N.  H.  314-^® 


in  some  jurisdictions,  been  held  that  she  should  sue  alone.  Ackcrly  v.  Tarhox, 
31  N.  Y.  564  (1864)  ;  Whiddcn  v.  Coleman,  47  N.  H.  297  (1867)  ;  Donahue  v. 
Hubbard,  154  Mass.  537  (i8qi)  ;  Poiveils  Estates  Pa,_RR._^  (1894); 
but  not  if  the  husband  has  any  marital  rights  tnefein.  Swcrdfergcr  v.  Hopkins, 
67  Vt.  136  (1894).  In  some  cases  it  has  been  held  that,  if  the  wife  so  elects, 
she  may  join  her  husband  as  a  co-plaintiff.  Van  Mar  en  v.  Johnson,  15  Cal.  308 
(i86oy;Atk{nson  v.  Mott,  102  Ind.  431  (1885)  ;  Clay  v.  St.  Albans,  43  W.  Va. 
539  (1897). 

'■"Lewis  V.  Babcock,  18  Johns.  (N.  Y.)  443  (1821)  ;  Barnes  v.  Martin,  15 
Wis.  240  (1862)  ;  Berger  v.  'Jacobs,  21  Mich.  215  (1870). 

""'•  Beach  v.  Ranney,  2  Hill  (N.  Y.)  309  (1842)  -.Jimith  v.  Smith,  4=;  Pa. 
403  (1863);  Rndcrs  v.  Beach,  18  Iowa  86  (1864);  Harper  v.  Pinkston,  112 
N.  Car.  293  (1893).  Compare  Garrison  v.  Sun  Pub.  Co.,  207  N.  Y.  i  (1912)  ; 
Kovacs  V.  Mayoras,  175  Mich.  582,  141  N.  W.  662  (1913). 

""^JHawk  V.  Harmnn.  ^  Binnev  (Pa.)  43  ii8i2)  ;  Catterall  v.  Kenyon,  3 
Ad.  &E1.  (N.  S.)  310  (1842)  ;  Marshall  v.  Oakes,  51  Alaine  308  (1864)  ;  Davis 
V.  Taylor,  41  111.  405  (1866)  ;  note  to  Chicago  B.  &  R.  Co.  v.  Honey,  12  C. 
C.  A.  190  (1894).  As  to  slander,  Fitzgerald  v.  Quann,  109  N.  Y.  441  (1888)  ; 
Jackson  V.  Williams,  92  Ark.  486  (1909),  and  30  L.  R.  A.  521. 

In  Hess  v.  Heft,_2tV3^u-^cv.  Ct._s82__(i897),  an  action  for  malicious 
prosecution  was  lirought  against  a  husband  and  wife.  It  appeared  that  the 
complaint  which  led  to  the  arrest  was  signed  by  both  the  defendants.  Held 
that  the  husband  alone  was  liable.  In  Smith  v.  MqcbjlSlie^  238  Ea — §^ 
(1913)  it  was  held  improper  to  join  the  husband  as  defendant  with  his  wife 


IJO  PAKTIKS 

At  common  law  the  wife  alone  can  neither  sue  nor  be  sued. 
The  reason  of  this  is  founded  upon  tlie  general  doctrine  of  conju- 
gal union  expressed  by  "the  father  of  the  English  common  law," 
in  the  emjihatic  and  sacred  phrase,  "Man  and  wife  are  the  same 
flesh."  Simt  idon  corfyus  et  eadon  caro,  vir  et  uxor.  Bracton,  f. 
31.  Sunt  quasi  u)iica  persona,  quis  caro  una  et  sanguis  iinus. 
Bracton.  f.  430.  And  herein,  says  an  old  writer,  "The  common 
law  shaketh  hands  with  divinitie" — an  illustration  of  tlie  habit  of 
presenting  every  established  fact  which  is  too  bad  to  admit  of  any 
other  defense,  as  an  injunction  of  religion.  Mill  on  the  Subjection 
of  Women  84.  All  persons  are  either  free  of  serfs.  Also,  some 
are  under  the  rod  (sub  virga),  as  wives,  etc.   Bracton,  f.  46. 

"By  marriage,  husband  and  wife  become  one  person  in  law ; 
tliat  is,  the  very  being  or  legal  existence  of  the  wife  is  suspended 
during  the  marriage,  or,  at  least,  is  incorporated  and  consolidated 
into  that  of  the  husband,  under  whose  wing,  protection,  and  cover 
she  performs  everything;  and  is  therefore  called  in  our  law-French, 
a  feme-covert,  foemina  viro  co-operta;  is  said  to  be  covert-baron, 
or  under  the  protection  and  influence  of  her  husband,  her  baron  or 
lord ;  and  her  condition  during  her  marriage  is  called  her  cover- 
ture. *  *  *  For  this  reason  a  man  can  not  grant  anything  to 
his  wife,  or  enter  into  covenant  with  her,  for  the  grant  would  be 
to  suppose  her  separate  existence ;  and  to  covenant  with  her  would 
be  only  to  covenant  with  himself."  i  Bl.  Com.  442.  "It  is  a  well 
established  maxim  of  the  law,  that  husband  and  wife  are  one  per- 
son. For  many  purposes,  this  is  a  mere  figure  of  speech;  for  other 
purposes,  it  must  be  understood  in  its  literal  sense."  Lush,  J.,  in 
Phillips  V.  Barnet,  L.  R.  i  Q.  B.  Div.  436,  440. 

By  the  common  law,  the  married  woman's  contracts  were  abso- 
lutely void, — not  merely  voidable,  like  those  of  infants  and  luna- 
tics; and  this,  not  because  of  the  theory  that,  like  an  infant  or  a 
lunatic,  she  required  the  protection  of  the  law  (for,  in  legal  the- 
ory, a  wife  needed  the  protection  of  the  law  no  more  than  a  single 
woman),  but  because  of  the  theory  of  the  utter  absorption  of  the 
existence  of  the  wife  in  that  of  the  husband;  or  the  other  theory, 
of  her  subjection  and  slavery.  Both  theories  compelled  the  same 
practical  result:  her  legal  personality  was  extinguished,  and  her 
social  personality  was  that  of  a  slave,  "under  the  rod."  The  social 
condition  and  legal  status  of  woman  was  the  natural  condition  of 
the  age  of  feudalism  which  produced  it — an  age  when  every  social 
relation  was  governed  by  feudal  analogies.  It  is  not  surprising, 
therefore,  that  in  such  an  age  a  theory  of  conjugal  life  should  have 
gained  ground  in  England  which  seemed  to  reproduce  at  every 
fireside  the  bond  of  lord  and  vassal,  and  to  place  the  lord  in  the 
attitude  of  Petruchio : 


where  the  action  was  to  recover  damages  for  injuries  resulting  from  lack  of 
care  in  the  maintenance  of  a  freight  elevator  in  a  building  owned  by  the  wife. 
The  negligence  charged  being  that  of  the  wife's  employes. 


HARRIS  v.   WEBSTER  121 

"I  will  be  master  of  what  is  mine  own : 
She  is  my  goods,  my  chattels ;  she  is  my  house 
My  household  stuff,  my  field,  my  barn. 
My  horse,  my  ox,  my  ass,  my  anything." 
Kenny  on  Married  Women's  Property  8. 

The  wife  being  thus  sub  potestate  viri,  with  the  sanction  of  the 
law  and  of  public  opinion,  the  law  was  consistent  in  holding  that 
"if  a  man  beat  an  outlaw,  a  traitor,  a  pagan,  his  villein,  or  his  wife, 
it  is  dispunishable,  because,  by  the  law  common,  these  persons  can 
have  no  action."  Brooke,  J.,  12  Hen.  VIII  4.'='^  And  the  woman  being 
thus  utterly  within  her  husband's  control,  his  chattel,  his  "ox,"  he 
became  personally  and  solely  answerable  for  her  torts,  as  for  the 
trespasses  of  his  other  domestic  cattle;  and,  of  course,  the  law 
could  pursue  no  other  consistent  system  than  that  which  declared 
all  her  contracts  absolutely  void. 

Such  was  tlie  social  and  legal  status  of  a  married  woman  cen- 
turies ago ;  and  the  change  of  her  condition  before  the  law  seems 
to  be  much  less  in  England  than  in  New  Hampshire.  Phillips  v. 
Barnet,  L.  R.  i  O.  B.  Div.  436,  440. 

But  feudalism  exists  no  longer,  and  the  social  and  legal  condi- 
tions which  the  system  produced  have  likewise  passed  away.  The 
benign  influences  of  Christianity,  and  a  more  diffused  as  well  as  a 
higher  system  of  moral  and  intellectual  education,  have  gradually 
ameliorated  the  hardships  of  woman's  social  condition,  and  have 
elevated  her  to  the  state  of  dignity  and  importance  she  possesses 
to-day — a  social  position  of  honor  and  respect.  The  change  has 
been  gradual  but  it  has  been  as  marked  as  any  other  step  in  the 
course  of  advancing  civilization,  for  it  has  been  nothing  less  than 
a  slow  but  steady  march  from  slavery  to  freedom.  It  has  been 
uniform  in  one  respect:  "Through  all  its  course  it  has  been  dis- 
tinguished by  the  gradual  dissolution  of  family  dependency,  and 
tlie  growth  of  individual  obligation  in  its  place."  Maine's  Ancient 
Law  163. 

The  movement  has  been  "from  status  to  contract."  18  Alb. 
Law  J.  26.  And  if  it  be  true,  as  maintained  by  Spencer,  that  in  the 
United  States  "women  have  reached  a  higher  status  in  the  social 
structure  than  anywhere  else"  (i  Principles  of  Sociology  764),  it 
is  equally  true  that  in  many  of  the  states,  certainly  in  New  Hamp- 
shire more  than  anywhere  else,  have  the  legal  distinctions  between 
the  sexes  been  swept  away. 

The  law  of  servitude  in  marriage  is  repealed  in  this  state.  In 
1842  the  Revised  Statutes  empowered  a  deserted  wife  to  hold  and 
convey  property  without  the  interference  of  her  husband.  Rev. 
St.,  ch.  149,  sec.  I.  Successive  steps  in  the  direction  of  a  larger  lib- 
erty and  a  corresponding  responsibility,  *  *  *  resulted  finally 
in  the  Act  of  1876  (Laws,  ch.  32).  As  the  result  of  all  this  legisla- 
tion, it  is  now  settled  that  a  wife  may  hold  to  her  own  use,  free 


""Compare  State  v.  Rhodes,  61  N.  Car.  453,  98  Am.  Dec.  78  (1866),  with 
Edmond's  Appeal,  57  Pa.  232  (1868)  ;  i  Haw  kin's  P.  C.  130. 


122  PARTIES 

from  the  interference  or  control  of  her  husbantl,  all  property  at 
any  time  earned,  acquired,  or  inherited  by,  beciueathed,  given,  or 
conveyed  to  her,  either  before  or  after  marria.y^e,  and  may  make 
contracts,  and  may  sue  and  be  sued  in  all  matters,  whether  in  law 
or  in  equity,  in  the  same  manner  as  if  she  were  sole  and  unmar- 
ried. Thus  by  progress  in  the  same  direction,  by  changes  religious, 
social,  customary,  legislative,  and  judicial,  the  rule  of  the  common 
law  has  been  abolished  and  obliterated;  and  it  is  no  longer  possi- 
ble to  say  that  in  New  Hampshire  a  married  woman  is  a  household 
slave  or  chattel,  or  that  in  New  Hampshire  the  conjugal  unity  is 
represented  solely  by  the  husband.  By  custom  and  by  statute  the 
wife  is  now  joint  master  of  the  household,  and  not  a  slave  or  a 
servant.  The  rule  now  is,  that  her  legal  existence  is  not  suspended. 
So  practically  has  the  ancient  unity  become  dissevered  and  dis- 
solved, that  the  wife  may  not  only  have  her  separate  property, 
contracts,  credits,  debts,  wages,  and  causes  of  separate  action 
growing  out  of  a  violation  of  her  personal  rights,  but  she  may 
enter  into  legal  contract  wnth  her  husband  and  enforce  it  by  suit 
against  him.  Clough  v.  Russell,  55  N.  H.  279.^  And  since  the 
wife's  property  is  no  longer  her  husband's  nor  her  earnings  his, 
by  mere  force  of  law,  and  since  he  has  no  more  legal  power  of 
physical  control  over  her  than  she  has  over  him,  no  more  reason 
seems  to  remain  for  holding  him  liable  for  her  torts  than  for  hold- 
ing her  liable  for  his.  And  there  remains  "not  a  reason,  nor  the 
semblance  of  a  reason,  growing  out  of  the  condition  and  wants  of 
society,  the  progress  of  civilization,  the  exigencies  of  trade,  or  the 
analogies  of  the  law,"  why  the  rules  and  forms  adapted  to  a  condi- 
tion which  has  ceased  to  exist,  and  inapplicable  to  the  conditions 
which  have  succeeded,  should  be  longer  retained.  Cessante  ratione 
legis,  cessat  ipsa  lex.  Hammond  v.  Corhett,  50  N.  H.  501,  507; 
Cole  v.  Lake  Co.,  54  N.  H.  242,  279,  285. 

Why,  then,  should  the  husband  of  Mrs.  Harris  be  joined  in  this 
suit  as  a  party  plaintiff,  any  more  than  any  stranger?  None  of  his 
legal  rights  have  been  invaded  by  the  act  of  Mrs.  Webster;  and, 
since  his  wife  is  entitled  to  hold  to  her  separate  use  the  fruits  of 
the  judgment  that  may  be  rendered  in  this  action,  he  can  have  no 
right  to  or  interest  in  the  damages  v\-hich  may  be  recovered. 


*  In  some  states  the  statutes  enlars::inR  tlie  rij^lits  of  married  women 
expressly  save  the  common  law  inability  of  husband  and  wife  to  sue  each 
other.  Lombard  v.  Morse,  155  Mass.  136  (1891)  ;  Kennedy  v.  KnigjiLi'j^  Fa. 
408  (i8q6)  ;  Drum  v.  Drum,  69  N.  J.  L.  557  (1003)  ;  I'lioml^son  v  TJwmp.wn, 
218  U.  S.  611  (1910)  ;  Perkins  v.  Blethen,  78  Atl.  574  (\faine  1911)  ;  Hjinijv, 
Knehlcr,  2^6  Pa.  13  (1912);  Lazvler  v.  Lawler,  107  Ark.  70  (191.3)-  I" 
other  states  actions  at  hiw  may  be  maintained.  Mathezvson  v.  Mathezvson, 
79  Conn.  23  (1906)  ;  Winter  v.  Winter,  191  N.  Y.  462  (1908).  If  an  action  at 
law  will  not  lie  recourse  may  be  had  to  equity.  Woodward  v.  Woodward. 
148  Mo.  241  (1898)  ;  Frankel  v.  Frankel,  173  Mass.  214  (1899)  ;  Reckjuanv. 
Heckman,  21  ^  Pa.  203  (1906)  ;  In  re  Hoffman,  199  Fed.  448  (1912)  ;  Fitclier 
V.  Griffiilis,  216  Mass.  174  (1913).  As  to  separate  property,  see  Lamer  v. 
Lamer,  L.  R.  (1905)  2  K.  B.  Div.  539;  Gillespie  v.  Gillespie,  64  Minn.  381 
(1896).  As  to  torts,  see  Peters  v.  Peters,  42  Iowa  182  (1875)  ;  Abbot  v.  Abbot, 
67  Maine  304  (1877)  :  .S'wi//;  v.  Smith,  20  R.  I.  556  (1898)  ;  Decker  v.  Kedly, 
79  C.  C.  A.  305  (1906)  and  note. 


HARRIS  V.  WEBSTER  1 23 

And  why  should  the  husband  of  Mrs.  Webster  be  joined  in  this 
suit  as  a  party  defendant?  He  has  done  no  wrong,  and  neither  he 
nor  his  property  can  be  holden  for  any  damages  or  costs  which  may 
be  recovered.  We  are  unable  to  discover  any  reason  why  the  hus- 
band of  either  party  should  be  permitted  to  interfere  in  this  con- 
troversy, except  so  far  as  to  persuade  his  wife  to  cease  litigation. 
Under  recent  statutes,  antecedent  to  the  law  of  1876,  it  has  been 
held  that  a  husband  could  not  properly  be  joined  as  plaintiff  in  a 
suit  to  recover  his  wife's  earnings,  nor  in  an  action  to  recover  a 
debt  which  accrued  to  his  wife  before  marriage,  nor  in  a  writ  of 
entry  to  recover  possession  of  her  land,  nor  in  an  action  for  tres- 
pass upon  her  estate;  and,  as  we  have  seen,  in  matters  pertaining 
to  her  own  property,  sfie  may  sue  her  husband  and  be  sued  by  him. 
Aibin  v.  Lord,  39  N.  H.  196;  Bank  v.  Clark,  46  N.  H.  134;  IVhid- 
den  V.  Coleman,  47  N.  H.  297;  Cooper  v.  Alger,  51  N.  H.  172; 
Alexander  v.  Goodwin,  54  N.  H.  423 ;  Clough  v.  Russell,  55  N.  H. 
279;  CaJioon  v.  Coe,  57  N.  H.  556.  The  statute  of  1876  is  so  broad 
and  sweeping  in  its  terms  as  to  preclude  the  supposition  that  it 
could  have  had  reference  to  matters  of  contract  only. 

We  are  therefore  of  the  opinion,  that,  as  at  common  law,  so  no 
less  under  the  operation  of  the  statute,  the  rule  of  pleading  must 
prevail,  which  requires  that  an  action  at  law  must  be  brought  in 
the  name  of  the  party  whose  legal  right  has  been  affected,  against 
the  party  who  committed  or  caused  the  injury  (i  Chitty  PI.  i; 
Dicey  on  Parties  380-382)  ;  that  the  husbands  of  these  female 
parties  are  strangers,  in  law,  to  this  proceeding,  and  that  the  de- 
murrer should  be  sustained. 

Case  discharged." 


=  Accord:  Martin  v.  Robson,  65  111.  129  (1872);  McCarthy  v.  Best,  120 
Mass.  89  (1876)  ;  Story  v.  Doivney,  62  Vt.  243  (1890). 

In  actions  for  personal  injuries  the  right  of  the  husband  to  sue  for  con- 
sequential damages  is. distinct  from  the  right  of  the  wife  to  sue  for  her  in- 
juries.  Smith  V.  City  of  St.  Joseph,  55  Mo.  456  (1874)  ;  Kelly  v.  New  York, 
'TTyj.  &  H.  R.  Co.,' 168  Mass.  308  (1897)  ;  Southern  R.  Co.  v.  Crozvdcr,  135 
Ala.  417   (1902).    In  Pennsylvania  under  the  act  ^f  May  8,   1895,  P.  L.  54, 
personal  injuries  to  a  wifTare  redressecT  in  dne^'suTCbrought  in  the  names  of 
the  husband  and  wife.    Doiicc/hue  v.  Consolidated  Traction  Co.,  201   Pa.  181  )^ 
(1902).    Where  the  right  of  action  is  in  the  wTTe,  it  has  been  held  m^sdine  sX— 
cases  that   she   should  sue   alone.    Hennesy  v.    White,  84   Alass.   48    (1861)  ;  r 
Norfolk  &  l]\  R.  Co.  v.  Dougherty,  92  Va.  372  (1895)  ;  Long  v.  Pennsylvania  \ 
R.  Co.,  149  Fed.  598   (1907).    In  other  cases  the  joinder  of  the  husband  is 
held  permissible.    Brockett  v.  Fair  Haven  R.  Co.,  y^  Conn.  428  (1900)  ;  Nor- 
nnle  v.  Wheeling  Traction  Co.,  57  W.  Va.  132  (1905). 

While  there  are  cases  to  the  contrary,  and  while  there  is  a  conflict  of 
opinions  as  to  the  basis  for  the  rule,  it  is  now  generally  held  that  for  the] 
alienation  of  the  affections  of  her  husband  a  married  woman  may  sue  alone./ 
Bennett  v.  Bennett,  116  N.  Y.  584  (1889)  ;  Gerrard  v.  Gerrard,  185  Pa.  222i 
(1898)  ;  Nolin  v.  Pearson,  191  Mass.  283  (1906)  ;  kliason  v.  Draper,  2  t>oTce'^ 
(Del.)  I  (1910). 

In  England  a  married  woman  may  sue  or  be  sued  alone,  the  remedy 
again.st  her  being  confined  to  her  separate  property.  Countess  of  Aylesford 
V.  Great  Western  R.  Co.,  L.  R.  (1892)  2  Q.  B.  626;  Lamer  v.  Lamer,  L.  R. 
(1905)  2  K.  B.  Div.  539.  Nevertheless  her  husband  remains  liable  for  her 
torts,  and  he  and  she  may  be  sued  jointly  or  she  may  be  sued  separately  for 


124  PAUTIl.S 

(c)   Insane   Persons.  /\ 

WIESMANN  V.   DONALD. 

SuTKKME  Court  of  Wisconsin,  1905. 
125  Wis.  600.' 

Appeal  from  a  judgment  of  the  Circuit  Court  for  Racine  county ; 
E.  B.  Belden,  Circuit  Judge.   Reversed. 

Action_broughLiO-^'^'ch'  I903»  upon  a  money  demand  for  pro- 
fessional ^rvices_. rendered  by  plaintiff  to  defendant.  Defendant 
sened^^iswer,  merely  alleging  that  the  plaintiff  was  adjudged  to 
be  insane  by  the  county  court  in  November,  1991,  and  that  said  plain- 
tiff, at  the  time  of  the  commencement  of  the  suit  and  of  the  answer, 
I  was  insane  and  incompetent  to  institute  or  maintain  the  action,  and 
had  no  general  guardian,  nor  any  guardian  ad  litem  appointed  for 
tlie  action.  Plaintiff'  moved  to  strike  out  the  answer  as  frivolous, 
irrelevant,  redundant  and  scandalous,  and  for  judgment  accord- 
ing to  the  demand  of  the  complaint,  which  motion  was  denied  April 
17,  1903,  and  exceptions  duly  reserved.  Whereupon  the  action  was 
noticed  for  trial,  and,  despite  the  protest  of  the  plaintiff  against  the 
trial  of  his  sanity,  that  question  seems  to  have  been  tried  on  evi- 
dence of  some  sort,  including-  a  certified  copy  of  the  order  of  the 
county  judge  adjudging  said  plaintiff  insane  and  ordering  that  he  be 
committed  to  the  Northern  Hospital.  No  bill  of  exceptions  was 
served.  Thereupon  the  court  entered  an  order  reciting  that  the 
issue  had  been  tried  and  a  decision  in  writing  filed,  which  does 
not  appear  in  the  record,  and  ordering  judgment  dismissing  the 
plaintiff's  complaint.  Whereupon  judgment  to  that  effect  v^-as  en- 
tered, from  which  the  plaintiff  appeals. 

Dodge,  J- :  The  absence  of  any  bill  of  exceptions  informing  us 
v^-hat  evidence  was  presented  to  the  trial  court  precludes  us  from 
reviewing  the  question  of  plaintiff's  sanity  as  a  fact,  and  from  con- 
sidering the  validity  of  the  county  judge's  order,  earnestly  argued 
by  him.  By  reason  of  this  omission  the  case  must  be  considered  as 
if  his  insanity  had  been  fully  proved. 

The  drastic  action  of  the  trial  court  in  dismissing  plaintiff's  com- 
plaint itpon  a  fully  admitted  cause  of  action  because  of  his  mental 
incompetency,  thereby,  for  the  time  at  least,  relieving  the  defendant 
from  payment  of  money  which  he,  by  not  denying,  admitted  he  owed 
to  the  plaintiff,  seems  to  be  in  complete  negation  of  the  duty  owed 
by  all  courts  to  protect  and  care  for  the  rights  of  the  mentally  in- 
competent. We  are  given  very  little  aid,  either  by  the  record  or  by 
the  respondent's  brief,  in  ascertaining  the  reasons  which  led  to  such 
action.  The  respondent  informs  us,  without  citation  of  authority, 
that  "the  principle  that  an  insane  person  can  not  appear  as  plaintiff 
and  prosecute  a  case  in  his  own  behalf  is  elementary."   Perhaps  he 

her  tort  after  marriage.  Seroke  v.  Kattcnhurg,  L.  R.  (1886)  17  Q.  B.  Div. 
177;  Earl  V.  Kinciscotc,  L.  R.  (1900)  2  Ch.  Div.  585;  Cxienod  v.  Leslie,  L.  R. 
(190Q)   I  K.  B.  880. 

'  Part  of  the  opinion  of  the  court  is  omitted. 


WIF.SMANN  V.  DONALD  1 25 

told  tlie  circuit  court  the  same  thing,  and  that  court  beHeved  him. 
This  proposition  has,  however,  been  directly  negatived  by  this  court 
in  Menz  v.  Beebe,  95  Wis.  383,  70  N.  W.  468,  where  it  was  held  that 
no  obstacle  exists,  either  by  common  law  or  under  our  statute,  to  tlie 
maintenance  of  an  action  by  an  incompetent  person.  Among  the 
supporting  authorities  cited  in  that  case  was  Chicago  &  P.  R.  Co.  v. 
Munger,  78  111.  300,  where  it  is  pertinently  said: 

"This  note  was  due  and  unpaid,  and  somebody  was  entitled  to 
sue  upon  it  and  enforce  its  collection.  If  appellee  [the  incompetent] 
was  not,  who  was  ?" 

Again,  in  Rankin  v.  Warner,  2  Lea  (Tenn.)  302,  it  is  said: 

"The  law  mainly  designs  to  protect  the  weak  and  dependent,  and 
if  the  courts,  seeing  a  suitor  has  rights  or  property  entitled  to  their 
consideration  and  judgment,  turn  him  out  because  no  one  will  or 
does  assume  the  role  of  guardian  or  next  friend  for  him,  they  will 
certainly  be  guilty  of  a  strange  perversion  of  the  object  of  their 
creation." 

The  common  law  right  of  a  lunatic  to  maintain  a  suit  was  de- 
clared as  long  ago  as  Lord  Coke's  time,  in  Beverly's  Cases,  2  Coke's 
Rep.  pt.  4,  568.  And  the  distinction  in  this  respect  between  an  in- 
competent and  an  infant  has  always  been  recognized  (i  Freem. 
Judgm.  sec.  152),  and  is  fully  preserved  in  our  own  statutes,  which 
provide  (§  2613,  Stats.  1898)  that  an  infant  must  appear  by  guar-] 
dian,  but  omit  any  such  requirement  with  reference  to  the  insane 
plaintiff.  The  rule  in  Mcnz  v.  Beehe  is  supported  not  only  by  the 
authorities  there  cited,  but  also  by  Allen  v.  Ransom,  44  Mo.  263; 
Rankin  v.  Warner,  supra;  Amos  v.  Taylor,  2  Brev.  (S.  C.)  20; 
Stigers  v.  Brent,  50  Md.  214;  Looby  v.  Redmond,  66  Conn.  444, 
34  Atl.  102;  Skinner  v.  Tibbitts,  13  Civ.  Proc.  R.  (N.  Y.)  370/ 


'  It  is  said  that  at  the  early  common  law  idiots,  madmen  and  such  as 
were  deaf  and  dumb  naturally  were  disabled  from  suing  because  they  wanted 
reason  and  understanding.  Bracton  lib.  5  Chap.  20,  fol.  420  b,  but  later 
they  were  permiUed  to  sue  and  the  suit  was  required  to  be  brought  in  their 
own  names.  Coke  on  Littleton  135  b.  Hence,  following  the  later  common 
law,  it  is  generally  held  that  the  name  of  the  lunatic  should  appear  on  the 
record  as  the  plaintiff  and  that,  in  the  absence  of  a  statute,  an  action  at 
law  in  the  name  of  the  committee  or  guardian  alone  is  improper.  Coke  v. 
Darston.  Brown.  &  Gold.  107  (1618);  Caneron's  Committee  v.  Pottinger,  3 
Bibb  (Kv.)  II  (1813);  Steel  v.  Young,  4  Watts  (Pa.)  459  (i83S)  :  Lane  v. 
Seherme'rhorn,  I  Hill  (N.  Y.)  97;  Reed  v.  II  ilson,  13  Mo.  2«  '(iSso)  ;  Riggs 
V.  Zaislki,  44  Conn.  120  (1870)  ;  Rankin  v.  W'arner,  2  Lea  (Tenn.)  302  (1879)  ; 
Dixon  V.  Cardozo,  106  Cal.  506  (1895).  In  ejectment  compare  Petrie  v.  Shoe- 
maker, 24  Wend.  (N.  Y.)  85  (1840)  with  Warden  v.  liiehbaum,  14  Pa.  121 
(1850).  Contra  Chavannes  v.  Priestley,  80  Iowa  316  (1890).  If  there  is  a 
guardian  or  committee  appointed  the  practice  is  to  sue  in  the  name  of  the 
insane  person  "bv"  the  guardian  or  committee,  Lang  v.  Whidden,  2  N.  H. 
435  (1822)  ;  Ubcroth  v.  Union  N  Bank,  9  Phila.  (Pa.)  S3  (1872).  In  England 
the  Committee  must  now  be  added  as  a  co^\a.muti.'~7Zord  Idzvnsend's  Set- 
tlement L.  R.  (1908)  I  Ch.  Div.  201.  If  no  guardian  is  appointed  and  the 
insane  person  sues  alone  this  is  no  reason  for  dismissing  the  suit.  Chicago 
&  P.  R.  Co.  V.  Hunger,  78  111.  300  (1875)  ;  Koenig  v.  Union  Depot  R.  Co.. 
194  Mo.  564  (1905);  McKenna  v.  McArdle.  191  Mass.  96  (1906).  Contra 
Pelham  v.  Moore,  21  Tex.  755  (1858).  See  N.  Y.  Code  Civ.  Pro.  §  2340  and 
Dnpignac  v.  Quick,  27  Misc.  (N.  Y.)  500  (1899)  ;  Callahan  v.  Neiv  York  C  H. 
R.  Co.,  99  App.  Div.  (N.  Y.)  56  (1905). 


126  TAKTU-S 

Our  statutes  evince  a  policy  to  confer  upon  courts  full  power  to 
protect  the  interests  of  insane  persons  who  are  in  court  without  the 
protection  of  their  guardians,  by  authorizin;^  that  in  any  case  when 
a  ]Kirty  shall  appear  to  be  insane  the  court  or  judge  may  appoint  a 
guardian  for  the  action,  as  the  case  may  require,  and  by  requiring 
that,  in  case  of  a  defendant,  he  shall  be  ])rotected  by  a  guardian. 
§  -'(tis.  Stats.  1898.  The  jn-oper  course  for  courts  to  pursue  when  it 
becomes  apparent  that  a  i)laintitf,  by  reason  of  his  insanity,  can  not 
safely  ]irotect  his  rights  in  the  litigation,  is  illustrated  by  IP'eisjiiann 
V.  Daniels,  114  Wis.  240,  90  N.  V/.  162,  where,  u])on  suggestion  of 
such  a  situation,  this  court,  instead  of  dismissing  the  case  and  deny- 
ing all  hearing  to  the  unfortunate,  apiwinted  a  guardian  ad  litem 
and  directed  the  case  to  proceed.  For  the  reasons  above  stated  it 
is  obvious  that  the  circuit  court  erred,  to  the  grievous  prejudice  of 
the  plaintiff,  in  dismissing  this  action,  and  that  the  judgment  to  that 
effect  must  be  reversed.^ 


JOHN  VAN  HORN  z.'.  HANN.  Administrator  of  SARAH 

SEARCH.  ^ 

Supreme  Court  of  New  Jersey,  1877. 

39  iV.  /.  L.  207. 

This  is  an  action  originally  brought  in  the  Common  Pleas  of 
Warren,  against  the  administrator  of  a  lunatic.  The  claim  was  for 
board,  lodging,  etc.,  of  the  lunatic  from  June  9th,  1873,  to  October 
22d,  1873.  There  was  offered  in  evidence,  on  the  trial,  proceedings 
upon  a  commission  of  lunacy,  the  return  to  which  was  a  finding, 
dated  October  14th,  1873,  that  said  Sarah  Search  was  a  lunatic  and 
had  been  such  for  three  and  a  half  months  i)revious  to  that  date.  It 
aj)peared  also  that  upon  the  loth  of  November  following  upon 
transmission  of  the  proceedings  to  the  Orphan's  Court  of  Warren 
county,  a  guardian  was  appointed.    Sarah  .Search  subsequently  died, 


^  In  Beverly's  case,  4  Coke's  Reports,  124  (1603)  it  is  said  "an  idiot 
in  an  action  bronslit  against  him  shall  appear  in  proper  person,  and  he 
who  pleads  best  for  him,  shall  be  admitted,  as  appears  in  s;i  Hen.  VI  18  b. 
Otlierwise  it  is  of  him  who  becomes  non  compos  mentis,  for  he  shall  appear 
by  guardian  if  he  is  within  ajj;e,  and  by  attorney  if  he  is  of  full  age."  Amos 
V.  Taylor,  2  Brev.  (S.  Car.)  20  (1809)  ;  Buchanan  v.  Rout,  2  T.  B.  Mon.  (Ky.) 
114  (1825).  Although  there  is  some  conflict  of  authority,  in  some  instances 
due  to  local  statutes,  the  majority  of  decisions  permit  an  action  at  law  or  in 
equity  to  be  conducted  by  the  next  friend  of  one  who  is  actually  insane  but 
not  judicially  declared  so.  Didisheim  v.  Londoit  &  \V.  Bank,  L.  R.  (1900) 
2  Ch.  Div.  15;  Pennington  v.  Thompson,  5  Del.  Ch.  328  (1880);  Reese  v. 
Reese,  89  Ga.  345  (1892)  ;  King  v.  McLean  Asylum,  12  C.  C.  A.  U.  S.  139 
(1894)  ;  Isle  V.  Canby,  \gc)  111.  39  (1902),  S.  C.  64  L.  R.  A.  513  and  note; 
Kroehl  v.  Taylor,  69  N.  J.  Eq.  525  (190;).  Compare  Rankert  v.  Rankert,  iot 
App.  Div.  (N.  Y.)  27  (190.S).. 

Where  tliere  has  been  a  judicial  finding  of  insanity  and  the  appointment 
of  a  guardian  or  committee,  then  suits  should  be  brought  by  the  guardian 
or  committee,  either  in  the  name  of  the  lunatic  Iw  the  committee  or  by  the 


VAN  HORN  V.   IIANN  127 

under  guardianship,  and  the  defendant  was  appointed  administrator. 
After  a  year  had  elapsed,  this  action  was  brought. 

On  the  trial,  the  court  charged  the  jury  "that  the  plaintiff  was 
entitled  to  recover  from  the  9th  day  of  June  until  the  29th  of  the 
same  month."  The  three  and  a  half  months  reached  back  to  the 
last  date.  That  after  the  time  when  she  was  declared  a  lunatic,  her 
administrator  was  not  liable  for  any  debt  for  her  support.  That  the 
plaintiff  must  look  to  the  guardian  for  her  support  from  June  29th 
until  her  decease.  A  verdict  was  found  in  accordance  with  such 
charge.   An  exception  was  sealed  to  this  charge. 

Reed,  J. :  There  is  no  contention  in  this  case  that  no  right  at 
all  to  recover,  accrued  to  the  party  who  furnished  the  food  and  lodg- 
ing to  the  lunatic.  The  claim  seems  to  be  for  necessaries  fairly 
furnished,  and  affords  an  exception  to  the  general  rule  as  to  the 
inability  of  a  lunatic  to  bind  himself  by  contract.  Baxter  v.  Earl  of 
Portsmoufh,  5  Barn.  &  Cress.  170;  Ewell's  Lead.  Cas.  635,  note; 
Am.  Lazv.  Reg.,  Vol.  II  (N.  S.)  22,  notes.  The  ruling  of  the  court 
touches  the  manner  in  which  this  claim  may  be  secured.  The  idea 
of  the  court  below  was,  that  for  any  claim  against  the  lunatic,  aris- 
ing after  the  beginning  of  the  period  of  derangement  found  by  the 
inquisition,  recovery  must  be  sought  only  through  the  guardian ; 
but  for  a  claim  accruing  previously,  an  action  would  lie  against  the 
lunatic  himself. 

It  is  difficult  to  understand  upon  v/hat  principles  this  claim  can 
be  severed  at  that  point  of  time,  and  a  different  method  of  redress 
suggested  for  each  portion.  Each  part  is  a  debt  of  equal  obligation 
upon  the  lunatic  and  his  estate.  No  provision  is  made  by  law  for 
the  payment  of  one  class  of  debts  and  not  of  another.  This  claim  is 
all  admittedly  a  debt  of  the  lunatic,  and  a  single  method  of  redress 
should  obviously  be  afforded  to  the  creditor.  The  question  is,  was 
this  action  at  law  against  the  administrator  of  the  lunatic,  the  cor- 
rect method?  Has  the  creditor  a  right  of  action  at  law  for  this 
claim  ? 

That  the  lunatic  was  suable  at  law  for  his  debts,  was  a  well- 
established  rule  of  the  common  law.  Broom  on  Parties  182;  Dicey 
on  Parties  2.  Nor  did  the  fact  that  a  writ  de  lunatico  had  gone, 
and  a  fincling  had  been  returned  upon  it  that  the  defendant  was 
insane,  change  the  rule.  Anonymous,  13  Ves.  590.  It  appears  from 
the  statement  in  Baxter  v.  Earl  of  Porfsiiwutli,  that  there  had  been 

committee  alone,  according  to  the  local  statutes  or  practice.  Compare  Ortley 
V.  Mcssere,  7  Johns.  Ch.  (N.  Y.)  139  (1823)  with  Lombard  v.  Morse,  155 
Mass.  136  (1836)  ;  Looby  v.  Redmond,  66  Conn.  444  (1895)  ;  E^utable^Trust^ 
Co.  V.  Garis,  190  Pa.  ^4.  CiSoo').  But  unless  the  interests  of  the  committee 
are  adverse  to  those  of  the  hmatic,  a  next  friend  is  not  permitted  to  sue  for 
the  lunatic.  Dorsaeimcr  v.  Roorback,  18  N.  J.  Eq.  438  (1867)  ;  Palmer  V. 
Sinnickson,  S9  N.J.Eq.530  (1900)  ;  Bird  v.  Bird,  21  Gratt.  (Va.)  712  (1872)  ; 
Row  V.  Row,  53  Ohio  .St.  249  (1895)  ;  Tiffany  v.  Worthington,  96  Iowa  560 
(1896).  So  also  a  suit  by  a  next  friend  has  been  allowed  where  the  lunatic 
was  a  nonresident.  Thierry  v.  Chalmers,  L.  R.  (1900)  Ch.  Div.  80,  81  L.  T. 
(N.  S.)  511;  Pelham  v.  Moore,  21  Tex.  755  (1858);  Plympton  V.  Hall,  55 
Alinn.  22  (1893).  But  as  to  nonresident  insane  defendants,  compare  Sturgis 
V.  Longworth,  i  Ohio  St.  544  (1853)  with  Michigan  Trust  Co.  v.  Ferry,  175 
Fed.  221   (1910). 


128  PART IKS 

such  a  hndins;  in  that  case.  Nor  did  the  fact  tliat  a  committee  had 
been  api^ointcd  by  the  chancellor,  oi)erate  to  prevent  the  bringing  or 
arrest  the  ]>rogress  of  such  an  action.  When  actions  were  com- 
menced against  a  lunatic,  so  found  by  inquisition,  the  lord  chan- 
cellor, on  petition  of  the  committee  of  the  lunatic,  showing  that 
there  were  grounds  for  defending,  would  refer  it  to  a  master  to 
inquire  whether  it  would  be  proper  to  make  any  and  what  kind  of 
defense.     Shelford  on  Lunacy  408. 

It  was  not  only  well  settled  that  an  action  lay  against  a  lunatic, 
whether  he  was  or  was  not  under  guardianship,  but  it  was  the  only 
method  open  for  the  recovery  of  a  contested  claim  against  him  by 
suit.  Xo  action  at  law  or  suit  in  ec|uity  could  be  maintained  against 
the  committee.  The  committee  was  the  mere  curator  of  the  prop- 
erty of  the  lunatic.  He  could  make  no  contracts  which  bound  the 
latter  in  any  manner.  The  committee  was  appointed  by  the  chan- 
cellor. He  made  the  appointment  not  ex  virtute  ofificio,  but  by  dele- 
gation of  power  from  the  crown.  The  king,  by  the  statute  de  prae- 
rogativa  regis,  (17  Ed.  11.,  st.  2,  ch.  610,)  was  bound  to  provide 
for  the  safe  keeping  of  the  projierty  and  the  maintenance  of  the 
lunatic.  He  was  compelled  to  do  this  by  agents,  and  he  delegated  the 
appointment  of  these  agents  to  the  holder  of  the  great  seal.  These 
agents  were  termed  committees,  and  were  merely  the  receivers  or 
bailiffs  of  the  crown.  As  such,  they  were  controllable  by  and  account- 
able to  the  chancellor  as  keeper  of  the  king's  conscience.  They  had 
no  title  in  the  property  of  the  lunatic.  They  could  not  contract  for 
the  lunatic.  They  could  not  sue  or  be  sued  as  the  rej)resentative  of 
tJie  lunatic.'' 

Xor  could  a  suit  in  equity  be  sustained  for  such  a  claim.  It  is 
true  that  where  there  was  a  debt. against  the  lunatic  admittedly  ow- 
ing, Llie  chancellor  would  entertain  a  petition  to  establish  it,  and  pro- 
vide for  its  payment  out  of  the  proceeds  of  the  lunatic's  estate  not 
needed  for  his  maintenance.  Even  to  accomplish  this,  the  chancellor 
had  no  right  to  sell  any  real  estate  of  tlie  lunatic  until  that  authority 
was  given  himin  1803,  by  the  statute  of  43  Geo.  HI.  The  collection 
of  debts  or  the  establishment  of  such  as  were  the  subject  of  contro- 
versy, was  not  within  the  scope  of  equity  jurisdiction. 

We  therefore  will  see  that  the  court  of  chancery,  either  before  or 
after  the  statute  of  Geo.  HI,  would  not  retain  a  petition  to  establish 
any  alleged  debt  against  the  lunatic  which  was  controverted,  or  con- 
cerning which  there  was  a  doubt,  but  would  send  the  matter  to  a 
common-law  tribunal.     Ex  parte  McDougal,  12  Ves.  384. 

A\^hile  the  chancellor-  would  not  order  a  debt,  although  undis- 
puted, to  be  paid  without  reserving  sufficient  to  maintain  the  lunatic, 
and  would  not  take  cognizance  of  a  contested  matter  of  debt  at  all, 
yet  the  right  of  action  against  the  debtor  himself  in  a  court  of  law, 
was  constantly  admitted.  In  instances  where  the  court  refused  to 
apply  ]»roperty  to  the  lunatic's  debts,  on  account  of  the  insufficiency 
of  the  remainder  for  his  support,  the  court  admitted  that  all  the 
lunatic's  proi)erty  could  be  reached  by  the  process  of  the  common- 

*  Crane  v.  Anderson,  3  Dana  (Kv.)  119  (1835);  Lane  v.  Schermerhorn,  I 
Hill  (X.  Y.)  97  (1841). 


VAN  HORN  V.  HANN  1 29 

law  courts,  and  that  equity  would  not  restrain.     Ex  parte  Dikes,  8 
Ves.  79;  Ex  parte  Hastings,  14  Ves.  182/ 

And  the  right  to  sue  the  lunatic  himself,  at  law,  is,  in  all  the 
cases  at  common  law,  alluded  to  as  a  settled  practice,  and  as  not 
presenting  a  matter  for  discussion.  Ihhotson  v.  Lord  Galway,  6 
T.  R.  133;  Steel  V.  Alan,  2  Bos.  &  Pul.  362;  Cock  v.  Bell,  13  East 

^  ^  - 

This  was,  then,  the  method  of  procedure  at  common  law.  Nor 
is  there  any  marked  departure  from  that  method  discoverable  in 
this  country.  The  schemes  for  the  care  of  the  person  and  property 
of  the  lunatic  vary  somewhat  in  the  different  states,  but  very  gener- 
ally the  character  of  the  committee  or  guardian  here  is  assimilated 
to  that  of  the  committee  under  the  English  system.  In  New  York, 
there  is  a  departure  by  force  of  the  construction  given  to  their 
statute.  Chancellor  Kent  decided  that  in  that  state,  the  estate  in 
the  hands  of  the  committee  was,  by  their  statute,  placed  in  the  pos- 
session of  the  court,  not  only  for  the  maintenance  of  the  lunatic, 
but  for  the  payment  of  creditors.  Brashsear  v.  Cortland,  2  Johns  Ch. 
401.  So  courts  of  equity  will  there  restrain  actions  at  law.  Matter 
of  Hiller,  3  Paige  199;  Soverhill  v.  Dickson,  5  How.  Prac.  Rep. 
109.  The  courts  of  law  there,  however,  take  no  notice  of  this,  but 
leave  the  equity  side  to  deal  with  the  party.  In  an  action  at  law,  the 
status  of  the  defendant,  as  a  lunatic,  can  not  be  urged  against  the 
proceeding.   Robertson  v.  Lain,  19  Wend.  650.* 

'At  law  actions  could  be  maintained  against  insane  persons  and  they 
could  be  arrested  and  imprisoned  upon  civil  process.  Kcrnot  v.  Norman,  2 
T.  R.  390  (1788)  ;  Nuit  v.  Vcrncy,  4  T.  R.  121  (1790)  ;  Ex  parte  Leighton,  14 
Mass.  207  (1817)  ;  unless  otherwise  provided  by  statute.  Bush  v.  Pettthone, 
4  N.  Y.  300  (1850)  ;  J^nna.  Act  of  Jime  16.  18.^6.  P.  .L.„6io  §  44-  While, 
however,  Chancery  has  no  jurisdiction  tolnterfere  with  the  rights  o£  cred- 
itors to  seize  and  sell  by  legal  process  property  of  the  lunatic  which  at  the 
time  of  seizure  is  not  in  the  custody  of  the  court.  Ex  parte  Dikes,  8  Vesey 
|r.  79  (1803);  Salter  v.  Salter,  6  Bush.  (Kv.)  624  (1869);  In  re  Farnham. 
L.  R.  (1896)  I  Ch.  Div.  836;  In  re  Clarke.  L.  R.  (1898)  i  Ch.  Div.  336,  a 
court  of  equity  Avill  not  allow  property  of  a  lunatic  in  its  custody  to  be 
applied  in  paying  creditors  without  first  providing  for  his  maintenance.  Ex 
parte  Hastings,  14  Vesey  Jr.  182  (1807).  Such  property  is  regarded  as  in 
aistodia  legis  and  no  creditor  can  reach  it  by  execution.  There  must  be  an  or- 
der of  court  for  payment  which  will  not  be  made  until  a  sum  sufficient  for 
the  maintenance  of  the  lunatic  is  first  provided.  Eckstein's  Estate,  1  Par- 
son's Eg.  Pa  ^0  (1842)  ;  Guthrie's  Appeal,  16  Pa.  321  riSSiTT  Adams  v. 
TTiojno.CSrN.  Car.  296   (1879).    Pending  an  ir 


Inquisition  Chancery  has  ap- 
pointed an  interim  receiver  of  the  estate  of  an  alleged  lunatic  against  whom 
executions  were  pending.  In  re  Fountain,  L.  R.  (1888);  37  Ch.  Div.  609; 
InreKrntnn.  K  B'mn.   CPa.')   6l^   ClSl^). 

"ITtefnhergh  v.  Schoolcraft,  2  Barb.  (N.  Y.)  153  (1848);  Ingersoll  v. 
Harrison,  48  Alicli.  234  (1S82).  In  New  York  since  the  adoption  of  the  code 
the  courts  have  enforced  their  prior  equity  rule  and  the  committee  of 
an  incompetent  person  is  regarded  as  an  officer  of  the  court  against  whom, 
as  well  as  his  ward,  no  action  will  be  permitted  without  leave  of  court.  Smith 
V.  Keteltas,  27  App.  Div.  ("N.  Y.)  279  (1898).  But  leave  to  sue  is  not  neces- 
sary unless  the  incompetent  person  has  been  judicially  declared  insane  and  a 
committee  appointed.  Grant  v.  Humbert,  114  App.  Div.  (N.  Y.)  462  (1906). 
As  to  service  of  process,  see  American  Mortcjacje  Co.  v.  Dcivev,  94  N.  Y.  S. 
808  (1905). 

9 — Civ.  Pkoc. 


!>)  FAKTXES 

^-^^"^ty,  in  tiiis       "^  ci.aracter  of  ^e  cammitiee  or 

iiS-  a  ruere  c-.:  :  title  in  the  propertv  of  the  hina- 

-  ^  "~  ~  '"  ""'  ""^ :  ■--"--  of  the 

-  -  "^-.^^ 

■  -    -    "  '  i. » 

;  -  ■ -  .6 

:^o.   12 

.     -  -   -     -  :..  V.  Pat- 

tTx:i~r.  ;  iiirit^  .  Kv.  *   ii.'   Xor  does  it  matter  whether  the  person 
'-' '     ""-".  as  cur:;"  ~     "  "--  -----   -  -  -         '^^"^  of  the  itmatic  is 

uirirree  .21  Ind.  ju>. 

-  in  our 

e-   Tne 

-z^'^c  iS  iicrc,  itS  in  Eng- 

e  remm  to  that  writ,  it 

r:iardiarL   That  dntr.  by 

-'- -    --' -     :-   __-    -   — - r:,  as  in  Eng-Iand  for  a 

rmie  ir  "was  tip«oa.  the  court  01  wards,  and  now.  in  mC'Si  of  the  states, 
r'"  '-^r  Z'TOliSZs  courts.  Supsni^om.  of  the  gnardian's  accounts 
1:  -  -he  ocT'hans'  axm,  with  an  apr-eal  to  the  ordinarv.  The 

'   ^    "  -   -   "     - 1  lars'is  where  the  interest  of  the  Iti- 
^-  -    §  7-    By  the  foirrth  secti<3n  of  this 

aci.  '_  -  ' :  z-^y  ^^  real  estate  uy  pay  debts, 

T_  -i^njc,  and  no  greater  '■-— er  upon  the  orphans' 

or^trrt  man  trie  statirte  43  «jeo.  ITI  ■_  -.rery.    There  is  do 

7«jTir-er  to  Ojszipel  eEther  to  investigate  ^i-_  .  -::.e  a  qtsestiaDed  claim 
aramst  the  I-matic.   Xeither  shccdd  as.stmie  the  settl-ement  of  such  a 
----      v\~here  the   ~--^ —    ■' — — ;  to  present  a  debt  against 
rre  are  no   :  -:  harts"  corniT:  can  decree  an 

i^-    :^^t.    V»l:ere  the  gu^r "..'.-    :  .      ,  ^     -jiere  is  no 

'•-—^  -~  ~Jr^  cr-^rt?  t--  c^T^'nr:^'  h£r-_  n,  in  every 

"-  "          -    _-   :r  is  equally 

:'  1  :    :    T     nh"  remedy 

Lseif.   It  was  in  recog- 


—      :.  .-  _-    _.--_;  that  the  ..: :n  was  reached  in  Cooml'j  v. 

I  cozier  et  d.^  z  Vroocn  2x1,  that  the  guardian  of  an  habitual  dnmk- 
1"'  -    -'-■  '- -_  -----     ~--  -■-  =-        -  ;e  said:   "'The  statute  places 

"-  to  his  euardian.  verv  much 

'  -     "  -  :s.tu5  of  the  lat- 

-    and  the  suits 

r  ise.  the  incon- 

'  "-g  as  an  action 

'-jn.  IS  f  ordbiy  presented,  and  attention  is  called  to 
:  f  the  act  ccncerrrrrLg  lunatics,  which  recognizes 

'  - '  .      -  .  -^  2^  Qf  Jr^ie  I3u  1B36,  the  i.ia.tLiS  of  2  l-rrztic 

iat;  the 

--•-r._--    -  _  _',  -.  r?g.   See 
;   Act  of  1890  ''=3  and  54  \ic- 


VAN  HORN  V.   JIANN  I3I 

the  liability  of  the  lunatic  himself,  by  providing  for  his  exemption 
from  imprisonment  for  want  of  bail.  The  conclusion,  then,  is 
reached,  that  for  any  legally  contracted  debt,  incurred  before  or 
after  his  derangement,  the  lunatic  is  liable  to  an  action  at  law. 

A  question  arises,  incidentally,  as  to  the  manner  in  which  such 
a  defendant  should  be  brought  into  court,  and  how  he  should  defend. 
A  word  as  to  the  practice  may  be  of  use,  as  it  seems  untouched  by 
any  previous  intimation  of  our  courts.  The  common-law  rule  is, 
that  a  lunatic  defends  in  the  same  manner  as  ordinary  persons. 
Process  is  served  upon  him  personally;  then,  if  an  infant,  he  appears 
by  guardian,  and  if  of  full  age,  by  attorney.  This  rule  seems  as  old 
as  Bez-erly's  case,  4  Coke  124,  b.  See  Tidd's  Prac,  Vol.  I,  p.  93, 
note  b;  i  Arch  Prac.  25;  2  Saund.  333,  n.  4,  and  cases  cited  in 
Coombs  v.  Janvier,  ante.  This  was  the  rule  in  actions  at  Iz-w?^ 

In  suits  in  equit}-,  the  practice  is  different.  In  those,  the  lunatic 
defends  by  guardian  ad  litem,  and  his  committee  is  appointed  such 
guardian  as  of  course,  (IVestcomb  v.  Westcomh,  i  Dick.  233,)  un- 
less there  is  no  committee,  or  the  committee  is,  in  interest,  adverse 
to  him  in  the  suit.  Shelf ord  *425;  Morgan's  case,  2  Bland.  184. 
There  a  third  party-  is  appointed.^^ 

A  failure  to  notice  this  diversity-  of  procedure,  or  the  blending  of 
the  two  in  the  same  courts,  has  caused,  in  one  or  two  states,  an  allu- 
sion to  a  practice  of  defending  by  guardian  ad  litem  in  all  cases — 
notes  to  Leach  v.  Marsh,  Am.  L.  R.,  vol.  II,  (N.  S.j  31 — and  in  one 


^"Justice  V.  Ott,  87  Cal.  530  (1891)  ;  Oldrich  v.  Williams,  12  \  t.  413 
(1841)  ;  King  v.  Robinson,  33  Maine  114  (1851);  Johnson  v.  Pomeroy,  31 
Ohio  St.  247  (1877)  ;  Stiggers  v.  Brent,  50  Md.  214  (1878)  ;  At'u'ood  v.  Lester, 
20  R.  I.  660  (1898). 

In  the  absence  of  a  statute  authorizing  ser%-ice  of  process  on  the  com- 
mittee or  cruardian  ser\-ice  must  be  made  on  the  lunatic.  Potts  v.  Mines, 
=7  Miss.  735  (1S80);  Scott  V.  U'inningham,  79  Ga.  492  (1887);  Redmond 
V.  Peterson,  102  Cal.  595  (1894);  State  v.  District  Court,  38  Mont.  166 
(1908)  ;  Cecil  v.  Cecil,  149  Kv.  605  (1912).  Compare  Shoemaker  v.  Smith, 
80  Iowa  6^5  (1890);  Jones  v.  Crourll,  143  Ind.  218  (1895);  Burger  v. 
Bordman,  234  Mo.  238  (1913)  J  ^'-  Y.  Code  Civ.  Proc.,  §§  426,  4^9-  In  Pennsyl- 
vania the  Act  o£  June  13,  1836,  P.  L.  601,  §  45,  provides  for  service  of  writs 
on  the  committee  of  the  estate  of  the  lunatic.  Before  the  writ  issues  there 
should  be  a  suggestion  on  record  of  the  inquisition  of  lunacv*  and  the  name 
of  the  com.mittee.  Hillings  v.  Laird ^21  Pa.  263  (1853).  By  the  Act  of  Tune 
10,  1901,  P.  L.  554,  ~§  I,  service  is  m-ade  on  the  next  of  kin  where  no  commit- 
tee has  been  appointed.  If  no  committee  be  appointed  then  it  is  the  dut\- 
of  the  plaintiff  to  apply  for  the  appointment  of  a  committee  ad  litem.  In 
Massachusetts  it  is  said'  that  the  guardian  of  a  lunatic  should  have  notice  of 
proceedings  and  if  he  does  not  appear  and  defend  in  the  name  of  his  w-ard 
a  guardian  ad  litem  should  be  appointed.  Taylor  v.  Lovering,  171  Mass.  302 
(1898);  Mitchell  V.  Kingman,  22  Mass.  431  (1827);  King  v.  Sto-ji-ell,  211 
Mass.  246  (1912). 

"  In  equitv  the  guardian  or  committee  must  be  made  a  defendant  Daniel's 
Chancerv  Practice  *I7^,  Wilson  v.  Grace,  14  Vesey  Jr.  172  (1807)  ;  Harrison 
V.  Rouan,  4  Wash.  C.  C.  202  (1819)  ;  Andrc'Ji's  v.  O'Reilly,  22  R.  I.  362 
(1901).  Where  there  is  no  committee  a  guardian  ad  litem  should  be  ap- 
pointed. Nelson  v.  Buncombe,  9  Bevans  211  (1&46);  Denny  v.  Denny.  90 
Mass.  311  (1864).  To  proceed  without  the  appointment  of  such  a  guardian 
is  reversible  error.  Eakin  v.  Haiikins,  52  W.  Va.  124  (1902).  So  where  the 
interests  of  the  guardian  are  adverse  to  those  of  the  ward.  Marx  v.  Row- 
lands, 59  Wis.  no  (1883).   X.  Y.  Code  Civ.  Proc.  §  428. 


132  PARTI  i:s 

state  he  so  tlcfcncls  by  statutory  direction.  Symnics  v.  Major,  21 
Incl.  443.  The  coninion-lau  method,  however,  was  unitorni  and  un- 
i|uestioned,  and  has  never  been  departed  from  in  this  country, wher- 
ever the  courts  have  had  occasion  to  consider  it  directly.  Faulkner  v. 
McClnre,  18  Johns.  134;  Ihichanan  \.  Rout,  2  T.  B.  Monroe  114; 
.Imos  V.  Taylor,  2  Brev.  S.  C  20;  Barbour  on  I'arties.^- 

W'ho  can  ai^pear  as  his  attorney?  It  is  manifest  that  the  hmatic 
himself  has  no  capacity  to  a])point.  His  want  of  natural  ability,  as 
well  as  the  implied  prohibition  in  section  15  of  the  practice  act,  for- 
bids it.  It  naturally  follows  that  the  jjerson  who  appears  as  the  at- 
torney should  be  selected  or  approved  by  the  court.  This  was  the 
rule  adopted  by  the  Supreme  Court  of  New  York,  in  the  case  of 
Faulkner  v.  McClure,  18  Johns.  134.  In  that  case,  the  court  granted 
a  rule  appointing  the  attorneys  of  the  defendant.  I  think  this  is  the 
correct  practice,  and  I  think  that  wdicre  the  defendant  is  under 
guardianship,  the  rule  should  never  be  granted  until  notice  to  such 
guardian  has  been  given  of  the  application  for  the  rule,  and  an  op- 
portunity for  hearing  him  afforded.^'* 

In  this  case,  this  question  does  not  directly  arise.  The  decease 
of  the  lunatic,  before  the  institution  of  the  present  action,  rendered 
the  course  of  procedure  plain.  Upon  her  death,  any  exceptional  treat- 
ment which  she  or  her  estate  was  entitled  to  or  subject  to  as  a  luna- 
tic, ceased.  The  duty  of  the  guardian,  beyond  accounting  and  pay- 
ing over  the  balance  to  her  personal  rei:»resentatives,  ceased,  i  Collin- 
son  310;  In  re  Colvin,  3  Md.  Ch.  278.  By  statute  32  Hen.  VIII,  all 
personal  property  of  the  lunatic  was  then  payable  to  his  executor  or 
administrator,  i  Collinson  320,  section  11.^*  The  personal  represent- 
ative of  the  lunatic  was  suable,  as  the  deceased  herself  was,  subject 
to  the  statutory  regulations.  She,  herself,  was  liable.  The  action 
was  for  a  debt  legally  incurred. 

The  instruction  to  the  jury,  that  a  part  could  not  be  recovered  in 
this  action,  was  erroneous,  and  the  judgment  nuist  be  reversed:^"' 


'■  "It  shall  not  be  necessary  to  make  an  idiot  or  lunatic  a  joint  party  with 
his  guardian  or  committee  except  as  may  be  required  by  statute."  Bums' 
Ann.  Stat.  Ind.  (1914).  See  also  California  Code  Civ.  Pro.  §  372;  Code  of 
Iowa  (1897)  §  3485.  In  England  a  lunatic  appears  and  defends  by  his  com- 
mittee who  must  obtain  the  sanction  of  the  court  before  suing  or  defending. 
Annual  Practice  (1914)  249,  Order  XVI,  rule  17. 

"Ex  parte  A'otliinglou,  37  Ala.  4<)6  (1861);  Ciiiviiiujhaiii  v.  Davis,  175 
Mass.  213  (1900)  ;  Stoner  v.  Rigc/s,  128  Mich.  129  (1901).  Contra:  fix  parte 
Roiindtrcc,  51  S.  Car.  405  (1897).   See  also  Gill  v.  GUI,  L.  R.  (iQOc^)  Prob.  Div. 

1-^7-  , 

"Ex  parte  McDougal,  12  Vesey  Jr.  384  (1806);  I'axton  v.  Stuart,  80 
Va.  873  (1885)  ;  Reanclo  v.  Misplay,  90  Mo.  251  (1886)  ;  Findley  v.  Cowles,  93 
Iowa  389  (1895);  SU>hert_y^Jimith,  184  Pa.  34  (1898);  In  re  Hunt,  L.  R. 
(1906)   2  Ch.  Div.  295.  ^ — 

"  For  the  statutory-  law  referred  to  by  the  court,  and  amendatorj^  acts, 
see  2  Comp.  Stat.  N.  J.  2780. 


TAYLOR  V.   CARPENTER  133 

(d)  Aliens.  ' 

TAYLOR  V.  CARPENTER. 

United  States  Circuit  Court,  First  Circuit,  1846. 
2  IVoodh.  and  M.  (U.  S.)  i. 

This  was  an  action  on  the  case,  brought  by  the  plaintiffs,  citizens 
of  Great  Britain,  agamstnTe  defendant,  a  citizen  of  Massachusetts, 
for  imitating  and  using  from  January,  1842,  to  January,  1845,  in 
this  State,  the  trade-marks  of  the  plaintiffs,  on  thread  of  the  defend- 
ant, and  selling  great  cjuantities  thereof,  as  and  for  the  plaintiffs' 
thread,  to  his  damage  in  the  sum  of  $20,000.  The  defendant  pleaded 
the  general  issue,  and  at  the  trial  here  at  an  adjournment  of  the 
October  Term,  1845,  a  verdict  was  found  for  the  plaintiffs  for  $800. 
The  defendant  moved  the  court  to  set  aside  this  verdict,  and  to 
grant  a  new  trial  for  the  reasons  assigned  in  a  motion,  embracing 
various  alleged  misdirections  and  omissions  by  Judge  Sprague,  be- 
fore wliom  the  case  was  tried.^*' 

Woodbury,  J.:  The  eighth  objection  is,  that  the  court  refused 
to  instruct  the  jury  that  the  plaintiffs  could  not  recover,  because 
citizens  and  residents  of  Great  Britain,  are  foreigners.  This  seems 
to  be  the  point  most  labored  and  most  relied  on. 

The  first  inquiry  under  this  head  is,  Vv-hether  the  subject-matter 
here  is  one  over  which  this  court  has  jurisdiction,  and  can  be  prose- 
cuted here  at  all  by  an  alien  friend. 

Being  an  action  for  a  tort  or  wrong  to  a  foreigner,  gives  to  this  ' 
court  general  jurisdiction. 

But  being  an  action  for  a  particular  kind  of  wrong,  an  injurious 
deceit  to  the  damage  of  tlie  plaintiff's,  practiced  here,  though  they 
live  abroad,  is  said  to  give  them  no  cause  of  action. 

The  exceptions  to  this  position,  as  to  the  rights  of  foreigners,  I 
take  to  be  twofold,  if  no  more.  One  is,  that  it  is  not  reciprocal,  no 
such  right  being  granted  to  exist,  and  which  may  be  prosecuted  by 
our  citizens  in  Great  Britain  where  this  plaintiff  resides.  But  this 
might  be  a  good  reason  for  legislation  by  Congress,  not  allowing 
aliens  to  have  any  rights,  or  to  prosecute  them  in  this  court,  unless 
they  are  reciprocal  and  allowed  to  our  people  in  their  respective 
countries.  But  no  such  discrimination  has  ever  been  made  by  Con- 
gress, and  no  court  could  make  it  by  mere  construction,  without  an, 
exercise  of  judicial  legislation.  The  cannibal  of  the  Fejees  may  sue 
here  in  a  personal  action,  though  having  no  courts  at  home  for  us  to 
resort  to. 

It  is  contended,  that  no  property  exists  here  in  mere  words  or 
marks,  and  that  they  are  unlike  the  good  will  in  a  trade  or  store  for 
business.  And  it  is  further  urged,  that  if  a  foreigner  can  obtain  no 
redress  in  such  a  case,  and  a  citizen  might,  he  should  not  complain, 


*°  Portions  of  the  opinion  of  the  court  are  omitted.    See  generally,  Borch- 
ird's  Diplomatic  Protection  of  Citizens  Abroad. 


134  rAKTii.s 

ami  may  rciiKun  at  home,  as  in  many  thing^s  he  is  not  allowed  here 
all  ihe  rights  and  privileges  of  a  eitizen,  and  ought  not  to  be. 

He  can  not  by  the  Constitution  be  President.  He  can  not  in 
many  states  vote.  lie  can  not  hold  land  in  many  or  take  by  descent 
though  in  others  he  can.  lie  can  not  take  out  patents  and  copy- 
rights in  all  cases,  and  under  like  rules  with  a  citizen.  He  can  not 
own  vessels  here.  He  can  not  engage  in  the  coasting  trade  here. 
He  can  not  in  the  conllict  of  laws  enforce  some  rights,  in  cases  of 
discharges  in  insolvency,  which  citizens  may.  Story,  Confl.  of 
Lavrs,  ^T,,  415;    Tozme  v.  Smith,  i  Woodb.  &  Minot,  115.^^ 

r>ut  an  alien  is  not  now  regarded  as  "the  outside  barbarian,"  he 
is  considered  in  China,  and  the  struggle  in  all  commercial  coun- 
tries for  some  centuries,  has  been  to  enlarge  his  privileges  and 
powers  as  to  all  matters  of  property  and  trade.  It  was  one  of  the 
grievances  in  INIagna  Charta,  as  well  as  the  Declaration  of  Independ- 
ence, that  the  naturalization  of  foreigners  had  been  too  much  ob- 
structed. 

So  too  heavy  taxation  of  alien  merchants  was  guarded  against 
in  Magna  Charta,  allowing  them  "to  go,  and  come,  and  buy,  and 
sell,  without  any  evil  tolts."  i  .Statutes  at  Large,  art.  30;  Thompson 
on  Charters,  p.  55. 

It  is  hence,  undoubted!}',  that  Montesquieu  observed,  "that  the 
English  have  made  the  protection  of  foreign  merchants  an  article 
of  their  national  liberty ;"  and  Thompson  on  Charters,  p.  232,  says, 
that  once  they  enjoyed  it  even  in  war,  "in  common  with  the  clergy 
and  husbandmen,  in  order  that  those  who  prayed,  ploughed,  and 
trafficked,  might  be  at  peace." 

For  many  years  it  has  been  held,  that  picas  of  alienage  are  to  be 
discouraged ;  and  are  a  defense  not  favored  in  the  law.  8  D.  &  E. 
71,  166;  2  Bl.  R.  1326;  13  East,  332;  10  East,  326;  i  Bos.  &  Pul. 
163,  170;  9  East,  321  ;  Stephen,  PI.  67;  Soc.  for  Prop.  Gosp.  v. 
IV heeler  et  ai,  2  Gall.  127. 

Even  as  long  ago  as  the  time  of  Lord  Ch.  J.  Hale,  he  "saith,  that 
the  law  of  England  rather  contracts  than  extends  the  disability  of 
aliens,  because  the  shutting  out  of  aliens  tends  to  the  loss  of  people, 
who,  when  laboriously  employed  are  the  true  riches  of  any  coun- 
try." Bac.  Ab.  "Aliens"  C.  note;  Went.  427;  2  Rol.  R.  94. 

An  alien  may  bring  an  action  for  slander  of  his  character. 
Bac.  Ab..  "Aliens"  D. ;  Yelv.  198.'^  And  by  31  Hen.  VI,  ch.  4, 
he  may  sue  for  any  injury  on  sea  or  in  the  realm.     I'ersonal  actions 


''  See  jrenerally  II  Kent's  Commentaries  *S3-  As  to  land.  Doe  v.  Robert- 
son, II  Wlieat.  (U.  S.)  332  (1826)  ;  McKinlcy  Co.  v.  Ala.<;ka  Co.,  183  U.  S. 
363  (1902)  ;  Haley  v.  Sheridan,  190  N.  Y.  331  (1907);  Doe  v.  Roe,  55  Atl. 
341  (Del.  1903).  "Compare  Jcle  v.  Lemberger,  163  111.  338  (1896)  ;  Connolly 
V.  Reed,  22  Idaho  29  (1912);  Donaldson  v.  State,  182  Ind.  615  (1913). 
As  to  insolvency,  Lctchford  v.  Convillon,  20  Fed.  608  (1884)  ;  Judd  v.  Law- 
rence, I  Cush.  (Mass.)  531  (1848).  Bankruptcy,  Cutter  v.  Foleom,  17  N.  H. 
140  (1845)  ;  In  re  Boynton,  10  Fed.  277  (1882)  ;  in  re  Clisdell,  2  Am.  Bank.  R. 
424  (1899)  ;  Ex  parte  Blain,  L.  R.  (1879)  12  Ch.  Div.  522. 

'■"Accord:  Fisani  v.  Lawson,  6  Bingham's  New  Cases  90  (1839);  Sid- 
greaves  V.  Myatt,  22  Ala.  617  (1853);  Crashley  v.  Press  Publishing  Co.,  179 
X.  Y.  27  (1904). 


TAYLOR  Zi.   CARPENTER  135 

being  transitory,  are  not  limited  to  any  particular  country.  Story 
Confl.  of  Laws^  p.  450;  3  Bl.  C.  249.^^  And  "the  laws  of  a  sovereign 
rightfully  extend  over  persons,  who  are  domiciled  within  his  terri- 
tory, and  even  property  which  is  there  situate."    lb.  section  539. 

Our  duties  are  such  to  redres?  wrongs  to  foreigners,  that  they 
are  by  the  Constitution  allowed  to  sue  in  the  United  States'  Courts, 
so  as  to  secure  greater  exemption  from  local  partialities  or  preju- 
dices against  them;  and  a  refusal  of  justice  to  them  in  judicial 
tribunals  is  one  just  cause  of  war.  4  Elliott,  Deb.  167.  The  nth 
section  of  the  Judiciary  Act  confers  the  same  power  on  this  court 
to  sustain  suits  where  an  alien  is  a  party,  as  where  a  citizen  is. 2° 
Aliens  may  sue  here  as  extensively  as  in  the  state  courts.  19  Pick. 
214. 

In  Barry's  case,  so  notorious  for  eight  or  ten  years  past  m  both 
the  courts  of  New  York  and  of  the  Union,  he,  though  an  alien,  has 
been  allowed  as  to  regaining  the  custody  of  his  child  from  his  wife 
and  her  connections,  the  same  remedies  and  principles  as  are  granted 
to  citizens.  Barry's  Case,  2  How.  65;  Mercein  v.  The  People,  25 
Wend.  64 ;  Barry's  Case,  5  How.  103. 

An  alien  gets  the  right  of  protection,  from  his  obedience,  in- 
dustry, and  care  while  here,  and  the  usefulness  of  his  capital  and 
skill  employed  here,  when  he  resides  abroad.  In  Story's  Confl.  of 
Laws,  section  565,  he  says :  "It  may  be  laid  down,  as  a  general  rule, 
that  all  foreigners,  siii  juris,  and  not  otlierwise  specially  disabled  by  | 
the  law  of  the  place  where  the  suit  is  brought,  may  there  maintain 
suits  tot  vindicate  tlieir  rights  and  redress  their  v.Tongs."  2  Blighj 
-,i ;  I  Dovv^  &  Clark  169;  i  Clark  &  Fin.  333  ;  2  Sim.  94;  8  Barn.  & 
Cress.  427;  9  Ves.  347;  4  John  Ch.  370;  and  13  Peters,  519;  ex- 
tends comity  of  suits  to  corporations  out  of  a  state. 

A  person  from  abroad  suing  in  this  country  is  to  enjoy  no 
greater  nor  less  rights  than  citizens.  "He  is  to  have  the  same  rights 
which  all  the  subjects  of  this  kingdom  are  entitled  to."  Ld.  Tenter- 
den  in  De  la  Vega  v.  Vimna,  i  Barn.  &  Adol.  284;  2  Cow.  626; 
I  Peters,  C.  C.  317;  i  Wash.  C.  C.  376;  2  John.  345;  10  Wheat,  i ; 
Henry  on  For.  Laws,  81-86.-^ 

"One  alien  may  sue  another  alien  if  the  subject-matter  of  the  action  is 
within  the  jurisdiction  of  the  court.  Barrcll  v.  Benjamin,  15  Mass.  354  (1819)  ; 
Peabody  v.  Hamilton,  106  Mass.  217  (1870)  ;  The  Jentsalcm,  2  Gall.  U.  S.  C 
C.  191  (1814).  Contra:  Dumonssay  v.  Delvit,  3  H.  &  H.  Md.  151  (i793),  and 
compare  Dcwitt  v.  Buchanan,  54  Barb.  (N.  Y.)  31  (1868). 

='See  U.  S.  Judicial  Code,  Act  of  Mar.  3,  191 1,  ch.  231,  §  24,  36  Statutes 
at  Large  U.  S.  1187.  The  federal  courts  are  without  jurisdiction 
where  both  parties  are  aliens  and  no  federal  question  is  involved.  Montalct  v. 
Murray,  4  Cranch  (U.  S.)  19  (1807):  Rjdiixititis-^^SliLatt,  lA  y^"^^-  (Pa^) 
412  (1879)  ;  Laird  v.  Indemnity  Co.,  44  Fed.  712  (1890)  ;  altHough  one  is  a 
consul  of  a  foreign  nation,  Pooley  v.  Luco,  72  Fed.  561  (1896),  but  see  Judi- 
cial Code  §  233. 

''Accord:  Ramkissenscat  v.  Barker,  i  Atk.  51  (i737),  contract;  Pugh  v. 
Gillam,  I  Cal.  485  (1851),  seamen's  wages;  Palmer  v.  DelVitt,  47  N.  Y.  532 
(1872)  insurance;  Johnston  v.  Trade  Ins.  Co.,  132  Mass.  432  (1882)  insur- 
ance; United  States  v.  O'Kecfe,  78  U.  S.  178  (1870)  ;  Squilache  v.  Tidewater 
C.  Co.,  64  W.  Va.  337  (1908)  personal  injuries.  At  common  law  an  alien 
could  not  maintain  a  real  or  mixed  action  altliough  he  could  defend  his  title 
against   all   persons  but   the   state.     Wangh   v.   Riley,  49   Mass.   290    (1844); 


13"  TARTll-.S 

Iniroign  contracts,  as  well  as  laws,  arc  respected  and  enforced 
only  from  comity,  not  propria  vigorc,  but  almost  invariably  enforced. 
Story  Conll.  of  Laws,  section  244.  Much  more  should  we  allow  to 
persons  pnitection  and  redress  by  comity,  than  to  contracts  and  laws, 
made  abroad,  as  we  do  daily,  in  every  appropriate  case.-- 

The  whole  system  of  modern  facilities  for  intercourse  through 
consuls  and  ambassadors,  through  less  rigid  exclusions,  through  im- 
])roved  roads  and  steamships,  through  free  trade  and  lower  duties, 
and  the  greater  brotherhood  caused  by  the  art  of  printing,  the  mar- 
iner's compass,  and  Christianity,  all  tend  to  connect  nations  closer, 
and  equalize  their  rights  and  privileges  in  business.  The  progress  of 
civilization  and  commerce,  and  the  whole  character  of  ovir  institu- 
tions and  laws,  are  more  and  more  friendly  to  foreigners,  regard- 
ing them  more  as  brethren,  of  one  blood  and  origin,  and  hope, 
rather  than  barbarians  and  enemies. 

So  as  to  permitting  them  to  trade  here,  to  sell  and  buy,  to  re- 
cover for  conversions,  or  injuries,  or  sales  of  their  property,  to  sue 
for  frauds  and  deceits  in  relation  to  it  as  well  as  contracts,  this  has 
been  the  law  ever  since  the  Constitution  empowered  congress  to 
have  courts  to  try  suits,  w'here  an  alien  was  a  party,  and  ever  since 
congress  confirmed  that  power  in  1789  in  the  circuit  court.  We,  as 
well  as  the  state  courts,  have  yearly  sustained  alien  friends  in  vindi- 
cating their  personal  rights,  as  fully  as  we  do  citizens,  in  all  analo- 
gous cases. -^ 

Comity  and  courtesy  are  due  to  all  friendly  strangers,  rather  than 
imposition  or  pillage.    Taking  their  marks  and  using  them,  as  and 


Sicmsscn  v.  Bofcr,  6  Cal.  250  (1S56);  White  v.  Sabaricgo,  23  Tex.  243 
(1859)  ;  Jcle  V.  Lcmhcrger,  163  111.  338  (1896).  The  right  to  hold  land,  how- 
ever, ordinarily  carries  with  it  the  right  to  maintain  actions  therefor.  Den  v. 
Brown,  7  N.  J.  L.  305  (1879)  ;  Bradstreet  v.  Oneida  Supervisors,  13  Wend. 
(N.  Y.)  546  (1835)  ;  Scharpf  v.  Schmidt,  172  111.  255  (1898). 

"'  Comity  will  not  allow  a  nonresident  alien  creditor  to  obtain  b}-  gar- 
nishment an  advantage  over  a  resident  creditor,  although  the  lien  of  the 
home  creditor  is  junior  to  that  of  the  alien.  Diicouto  Gesselsehaft  v.  Umbreit, 
127  Wis.  651  (1906). 

^  There  is  a  conflict  of  authority  as  to  whether  a  nonresident  alien  can 
maintain  an  action  for  wrongful  death  under  the  statutes  conferring  that 
right  upon  the  relatives  of  a  decedent.  Among  the  cases  upholding  the 
right  of  action  are  Davidson  v.  Hill,  L.  R.  (1901)  2  K.  B.  Div.  606;  Philpott 
v.  Missouri  P.  R.  Co.,  85  Mo.  164  (1884)  ;  Chesapeake  &  O.  R.  Co.  v.  Hig- 
gins,  85  Tenn.  620  (1887)  ;  Mithall  v.  Fallon,  176  Alass.  266  (1900)  ;  Szymanski 
v.  Blumcnthal,  3  Penn.  (Del.)  558  (1902)  ;  Kellyville  Coal  Co.  v.  Petraytis, 
195  111.  215  (1902);  Renhind  v.  Commodore  M.  Co.,  89  Minn.  41  (1903); 
Romano  v.  Capital  City  B.  Co.,  125  Iowa  591  (1904)  ;  Pittsburg,  etc.,  R.  Co. 
v.  Xaylor,  73  Ohio  St.  115  (1905)  ;  Hirchkovitz  v.  Pennsylvania  R.  Co.,  138 
Fed.  438  (1905,  N.  J.  Stat.);  Lotv  Moor  T.  Co.  v.  La  Bianca,  106  Va.  83 
(1906)  ;  Alfson  v.  Bush  Co.,  182  N.  Y.  393  (1905)  ;  Atchison,  etc.,  R.  Co.  v. 
Fajardo,  74  Kan.  314  (1906)  ;  Kaneko  v.  Atchison,  etc.,  R.  Co.,  164  Fed.  263 
(1908  Cal.  Stat.)  ;  Mascitelli  v.  Union  C.  Co.,  151  Mich.  693  (1908)  ;  Ferara 
V.  Auric  M.  Co.,  43  Colo.  496  (1908)  ;  Mahoning  Ore  Co.  v.  Blomfelt,  163 
Fed.  827  (1908  Minn.  Stat.).  Among  the  cases  denving  the  right  are  Adam 
v.  Brittish  &  F.  S.  Co.,  L.  R.  (1898)  2  Q.  B.  Div.  430 ;  J2£ML\[^^emisylvania 
Co,^_i8i_Ea._i25__(i82j)  ;  McMillan  v.  Spider  Lake  Co.,  115  Wis.  332  (1902)  ; 
Roberts  V.  Great  X  or  them  R.  Co.,  161  Fed.  239  (1904,  Wash.  Stat.)  ;  Maio- 
ramo  v.  Baltimore  &  O.  R.  Co.,  216  Pa.  402  Clqot.).  Affirmed,  213  U.  S.  268, 
Iged  by'Ta.  Act  of  June  7,  191 1,  P.  L.  678. 


CLARK  t'.   MOREY  1 37 

for  theirs,  to  their  damage,  is  like  preying  on  a  visitor,  or  inhospit- 
ably i)lundering  a  wreck  on  shore.  To  elevate  our  own  character  as 
a  nation,  and  the  purity  of  our  judicial  tribunals,  it  seems  to  me  we 
ought  to  go  as  far  in  the  redress  and  punishment  of  these  decep- 
tions as  can  be  vindicated  on  any  sound  principle. 

Some  of  the  statutes,  passed  in  what  we  consider  a  compara- 
tively barbarous  age,  are  not  without  admonitory  lessons  on  this 
subject.  Beside,  one  before  referred  to,  the  9  Edw.  3  d.  st.  2,  ch.  i, 
empowers  alien  merchants  to  sell  and  buy  freely  any  where,  and 
to  have  redress  if  disturbed  and  damages,  i  Stat,  at  Large,  212. 
And  2"]  Ed.  Ill,  st.  2  ch.  18,  19,  provides,  that  as  such  merchants 
"can  not  often  long  tarry  in  one  place  we  will  and  grant  that  speedy 
right  be  to  them  done  from  day  to  day  and  from  hour  to  hour,  ac- 
cording to  the  laws,"  etc.    i  Stat,  at  Large  281. 

Again,  in  the  3d  article  of  our  Treaty  of  1794  with  England, 
each  power  is  authorized  in  America  "freely  to  carry  on  trade  and 
commerce  with  each  other."  So  we  are  under  treaty  obligations  to 
Great  Britain  and  most  other  European  powers  to  admit  their  mer- 
chandise on  favorable  terms,  and  to  allow  their  merchants  to  trade 
here  as  those  of  favored  nations.  But  it  would  be  a  mockery  of 
such  provisions  and  engagements,  if  we  prevented  them  from  sell- 
ing their  goods  after  arriving' here  (Ch.  J.  Marshall  in  Brown  v. 
State  of  Maryland,  12  Wheat.  447)  ;  unless  noxious  to  health  or 
morals ;  or  if  we  made  onerous  discriminations  against  them,  or  pre- 
vented their  receiving  the  proceeds  of  their  goods,  or  abstained 
from  yielding  protection  against  injuries  to  thern,  or  to  their  marks. 
vSee  Taylor  v.  Carpenter,  3  Story,  R.  461. 

I  am  not  satisfied,  then,  that  the  judge  at  the  trial  did  wrong  in 
not  charging  on  this  point  .as  desired  by  the  defendants.  Nor  am  I 
dissatisfied  with  the  verdict  in  law  or  fact,  in  this  respect. 

New  trial  refused  and  judgment  on  the  verdict.-^ 


CLARK  V.  AIOREY. 

Supreme  Court  of  New  York,  181 3. 
10  Johns.  {N.  Y.)  69. 

This  was  an  action,  of  ..assumpsit,  on  a  promissory  note  made  by 
the  defendant  to  the  plaintiff,  dated  the  5th  June,  181 1,  for  $209.50, 
I)aya1)le  on  demand.  The  declaration  was  filed  in  May  term,  1812. 
In  August  term  last  the  defendant  pleaded,  i.  Non  assumpsit; 
2.  that  the  plaintifif  ought  not  to  have  and  maintain  his  action,  etc., 

-*  Accord  :  Collins  Co.  v.  Brouni,  3  K.  &  J.  423  (1875)  ;  Palmer  v.  De  Witt, 
47  N.  Y.  532  (1872).    See  Frohman  v.  Ferris,  238  111.  430  (1909). 

As  an  alien  may  sue,  so  also  he  may  be  sued,  provided  the  court  has  ac- 
quired jurisdiction  of  his  person  or  property.  Field  v.  Kennedy,  7  Md.  209 
(1854);  Rnss  V.  Mitchell,  11  Fla.  80  (1864);  Roberts  v.  Knights,  89  Mass. 
449  (1863)  ;  Olcott  v.  MacLean.  72  N.  Y.  223;  McHenry  v.  New  York  P.  & 
O.  R.  Co.,  25  Fed.  65  (1885)  ;  Vestal  v.  Ducktown  Sulphur,  etc.,  Co.,  210  Fed. 
375  (1911)- 


138  PARTir.S 

\  because  the  defendant  says,  that  the  plaintiff  is  an  aUen,  born  in  for- 
Wign  i>arts.  out  of  llie  allegiance  of  the  United  States  of  America, 
land  within  the  allegiance  of  a  foreign  state,  to  wit,  of  the  united 
jkingdoni  of  Cireat  Britain  and  Ireland,  and  not  made  a  citizen  of  the 
United  States  of  America,  by  naturalization  or  otherwise,  to  wit,  at, 
etc.  And  that  the  persons  exercising  the  powers  of  government  in 
the  said  foreign  state,  the  united  kingdom  of  Great  Britain  and  Ire- 
land, aforesaid,  are  at  war  with,  and  enemies  of,  the  United  States 
of  America,  to  wit,  at,  etc.,  and  that  the  said  plaintiff,  so  being 
such  alien  born,  etc.,  and  an  enemy  of  the  United  States  of  Amer- 
ica, and  not  made  a  citizen  by  naturalization,  or  otherwise,  entered 
and  came  into  the  United  States  of  America,  and  still  remains 
therein,  without  any  letters  of  safe  conduct  from  the  President  of 
the  United  States  of  America,  or  any  license  to  be,  reside  or  remain 
in  these  United  States  of  America.  i\nd  this  the  said  defendant  is 
ready  to  verify,  wherefore  he  prays  judgment  if  the  said  plaintiff 
ought  further  to  have  or  maintain  his  aforesaid  action  thereof 
against  him,"  etc. 

To  this  plea  there  was  a  demurrer,  and  joinder  in  demurrer. 
Kent,  C.  I. :   The  second  ])lea  states  that  the  i)laintiff  is  an  alien, 
born  out  of  the  allegiance  of  the  United  States,  and  under  the  alle- 
giance of  the  King  of  the  United  Kingdom  of  Great  Britain  and  Ire- 
lland,  and  not  naturalized,  and  that  war  exists  between  the  United 
States  and  the  said  kingdom ;  and  that  the  plaintiff  came  into  the 
;  United  States  and  remains  here  without  any  letters  of  safe  conduct 
'  from  the  President  of  the  United  States,  or  any  license  to  remain 
'  here. 

This  plea  is  not  without  jirecedent  in  the  English  books;  (Rast. 
Ent.  252,  b.  605  b;  Denier  v.  Arnaud,  4  Mod.  405,  the  record  of 
which  plea  Lord  Kenyon,  in  8  Term  Rep.  167,  says  he  had  exam- 
ined;) but  there  are  many  and  weighty  reasons  why  it  can  not  be 
supported.  To  render  the  plea  of  alien  enemy  good,  it  seems  now 
to  be  understood  to  be  the  law  of  England  that  the  plea  must  not 
only  aver  that  the  plaintiff  was  an  alien  enemy,  but  that  he  was  ad- 
hering to  the  enemy.    The  disability  is  confined  tT^TTiese  two  cases: 

1.  Where  the  right  sued  for  was  acquired  in  actual  hostility,  as  was 
the  case  of  the  ransom  bill  in  Anthon  v.  Fisher;  (Doug.  649,  note;) 

2.  \Miere  the  ])laintiff,  being  an  alien  enemy,  was  resident  in  the 
enemy's  country;  such  was  the  form  of  the  plea  in  George  v.  Pozvell 
(Fortesc.  221,)  and  in  Le  Bret  v.  Papillon;  (4  East,  502;)  and  such 
was  the  case  with  the  persons  in  whose  behalf,  and  for  whose  benefit 
the  suit  was  brought  upon  the  policy,  in  Brandon  v.  Neshitt.  (6 
Term  Rep.  23.) 

It  was  considered  in  the  Common  Pleas,  at  Westminster,  as  a 
settled  point,  (Heath,  J.,  and  Rooke,  J.,  in  Sparenhiirg  v.  Bannatyne, 
I  Bos.  &  Pull.  163,)  that  an  alien  enemy  under  the  king's  protec- 
tion, even  if  he  were  a  prisoner  of  war,  might  sue  and  be  sued.  This 
point  had  long  before  received  a  very  solemn  decision  in  the  case 
of  Wells  V.  Williams,  (i  Ld.  Raym.  282,  i  Lutw.  34  S.  C.,  i  Salk. 
46.)  It  was  there  decided  that  if  the  plaintiff  came  to  England  be- 
fore the  war,   and   continued  to  reside  there,  by   the  license  and 


CLARK  Z'.   MOREY  I39 

under  the  protection  of  the  king  he  might  maintain  an  action 
upon  his  personal  contract;  and  that  if  even  he  came  to  Eng- 
land after  the  breaking  out  of  the  war,  arid  continued  there  under 
the  same  protection,  he  might  sue  upon  his  bond  or  contract ;  and 
that  the  distinction  was  between  such  an  ahen  enemy,  and  one  com- 
morant  in  his  own  country.  The  plea,  in  that  case,  averred  that  the 
plaintiff  was  not  only  born  in  France,  imder  the  allegiance  of  the 
French  king,  then  being  an  enemy,  but  that  he  came  to  England, 
without  any  safe  conduct,  and  the  plea  was  held  bad  on  demurrer. 
It  was  considered,  that  if  the  plaintiff  came  to  England  in  time  of 
peace,  and  remained  there  quietly,  it  amounted  to  a  license,  and  that 
if  he  came  over  in  time  of  war,  and  continued  without  disturbance, 
a  license  would  be  intended.  It  is,  therefore,  not  sufficient  to  state 
that  the  plaintiff  came  here  without  safe  conduct.  The  plea  must  set 
forth,  affirmatively,  every  fact  requisite  to  prove  that  the  plaintiff 
has  no  right  of  action.  It  is  not  to  be  favored  by  intendment.  This 
was  the  amount  of  the  decision  in  Casseres  v.  Bell ;  (8  Term  Rep. 
i66;)  and  one  of  the  judges  in  that  case  referred  to  the  decision  in 
Udells  v.  JVilliams,  as  authority,  and  so  it  has  uniformly  been  consid- 
ered in  all  the  books ;  and  all  the  former  precedents  and  dicta  that 
are  repugnant  to  it  may  be  considered  as  overruled.  Though  there 
is  a  loose  and  unsatisfactory  note  of  Sylvester's  Case,  in  7  Mod. 
150,  which  was  a  few  years  later,  and  looks  somewhat  to  the  con- 
trary ;  yet  it  never  has  been  considered  as  affecting  the  former  deci- 
sion. Indeed,  the  law  on  this  subject  has  undergone  a  progressive 
improvement.  The  doctrine  once  held  in  the  English  courts,  that  an 
alien  bond  became  forfeited  by  the  war,  (Year  Book,  19  Edw.  IV, 
pi.  6,)  would  not  now  be  endured.  The  plea  is  called  in  the  books 
an  odious  plea,  and  the  latter  cases  concur  in  the  opinion  that  the 
ancient  severities  of  war  have  been  greatly  and  justly  softened,  by 
modern  usages,  the  result  of  commerce  and  civilization. 

In  the  case  before  us,  we  are  to  take  it  for  granted  (for  the 
suit  was  commenced  before  the  present  war)  that  the  plaintiff  came 
to  reside  here  before  the  war,  and  no  letters  of  safe  conduct  v.ere, 
therefore,  requisite,  nor  any  license  from  the  president.  The  license 
is  implied  by  law  and  the  usage  of  nations ;  if  he  came  here  since  the 
war,  a  license  is  also  implied,  and  the  protection  continues  until  the 
executive  shall  think  proper  to  order  the  plaintiff  out  of  the  United 
States ;  but  no  such  order  is  stated  or  averred.  This  is  the  evident 
construction  of  the  act  of  congress  of  the  6th  July,  1798,  entitled, 
"An  act  respecting  alien  enemies."  (Sess.  i  cong.  5,  ch.  y^.)  Until 
such  order,  the  law  grants  permission  to  the  alien  to  remain,  though 
his  sovereign  be  at  war  with  us.  A  lawful  residence  implies  protec- 
tion, and  a  capacity  to  sue  and  be  sued.  A  contrary  doctrine  would 
be  repugnant  to  sound  policy,  no  less  than  to  justice  and  humanity. 

The  right  to  sue,  in  such  a  case,  rests  on  still  broader  ground 
than  that  of  a  mere  municipal  provision,  for  it  has  been  frequently 
held  that  the  law  of  the  nations  is  part  of  the  common  law.  By  the 
law  of  nations,  an  alien  who  comes  to  reside  in  a  foreign  country,  is 
entitled,  so  long  as  he  conducts  himself  peaceably,  to  continue  to  re- 
side there,  under  the  public  protection ;  and  it  requires  the  express 


140  I'AKTIl-S  • 

will  of  the  sovorcijjn  power  lo  order  him  away.  The  rigor  of  the  old 
rules  of  war  no  longer  exist,  as  llynkershoek  admits,  when  wars  are 
earried  on  with  the  moderation  tliat  the  intluence  of  commerce  in- 
si)ires.  It  may  be  said  of  commerce,  as  Ovid  said  of  the  liberal 
arts:  Htnollit  mores,  nee  sinit  esse  feros. 

W'e  all  recollect  the  enlightened  and  humane  iirovision  of  Magna 
Charta  (c.  30)  on  this  subject;  and  in  l^-ance  the  ordinance  of 
Charles  Y  as  early  as  1370,  was  dictated  with  the  same  magnanimity 
— for  it  declared  that  in  case  of  war,  foreign  merchants  had  nr)thing 
to  fear  for  they  might  depart  freely  with  their  effects,  and  if  they 
happened  to  die  in  France,  their  goods  should  descend  to  their  heirs. 
(Renault's  Abrege  Chron.  torn,  i,  338.)  So  all  the  judges  of  Eng- 
land resolved,  as  early  as  the  time  of  Henry  VIII,  that  if  an  alien 
came  to  England  before  the  declaration  of  war,  neither  his  person, 
nor  his  efifects,  should  be  seized  in  consequence  of  it.  (Bro.  tit. 
Property,  pi.  38;  Jenk.  Cent.  201,  case  22.)  And  it  has  now  become 
the  sense  and  practice  of  nations,  and  may  be  regarded  as  the  public 
law  of  Europe,  (the  anomalous  and  awful  case  of  the  present  vio- 
lent power  on  the  continent  excepted,)  that  the  subjects  of  the 
enemy,  (without  confining  the  rule  to  merchants,)  so  long  as  they 
are  permitted  to  remain  in  the  country,  are  to  be  protected  in  their 
persons  and  property,  and  to  be  allowed  to  sue  as  well  as  to  be 
sued.  (Bynk.  Ouoest.  Jur.  Pub.  b.  i  c.  25  s.  8.)  It  is  even  held, 
that  if  they  are^ordered  away  in  consequence  of  the  war,  they  are 
still  entitled  to  leave  a  power  of  attorney,  and  to  collect  their  debts 
by  suit.    (Emerigon,  Traite  des  Assurances,  torn.  i.  567.) 

Modern  treaties  have  usually  made  provision  for  the  case  of 
aliens  found  in  the  country,  at  the  declaration  of  war,  and  have  al- 
lowed them  a  reasonable  time  to  collect  their  efifects  and  remove. 
Bynkershoek  gives  instances  of  such  treaties,  existing  above  two 
centuries  ago ;  and  for  a  century  past,  such  a  provision  has  become 
an  established  formula  in  the  commercial  treaties.  Emerigon,  who 
has  examined  this  subject  with  the  most  liberal  and  enlightened 
views,  considers  these  treaties  as  an  affirmance  of  common  right,  or 
the  ])ublic  law  of  Euro]:»e,  and  the  general  rule  is  so  laid  down  by 
the  later  publicists,  in  conformity  with  this  i)rovision.  (Vattel,  b. 
3.  c.  4.  s.  63.  Le  Droit  Public  de  L'Europe,  par  Mably.  Oeuvres,  tom. 
6.  334.)  Some  of  these  treaties  have  provided  that  foreign  subjects 
should  be  permitted  to  remain  and  continue  their  business,  notwith- 
standing a  rupture  between  the  governments,  so  long  as  they  behave 
I)eaceably ;  (Treaty  of  Commerce  between  Great  Britain  and  France, 
in  1 7S6,  and  of  Amity  and  Commerce  between  Great  Britain  and  the 
United  States,  in  1794;)  and  where  there  was  no  such  treaty,  the 
permission  has  been  frequently  announced  in  the  very  declaration 
of  war.  Sir  Michael  Foster  (Discourse  of  High  Treason,  185,  186) 
mentions  several  instances  of  such  declarations;  and  he  says  that 
the  aliens  were  thereby  enabled  to  acquire  personal  chattels,  and  to 
maintain  actions  for  the  recovery  of  their  personal  rights,  in  as  full 
a  manner  as  alien  friends.    The  act  of  Congress  of  July,  1798,  be- 


CLARK  Z'.  MOREY  I4I 

fore  alluded  to,  provides,  in  cases  where  there  may  be  no  existing 
treaty,  a  reasonable  time,  to  be  ascertained  and  declared  by  the 
president  to  alien  enemies  resident  at  the  opening  of  the  war,  "for 
the  recovery,  disposal  and  removal  of  their  goods  and  effects."  This 
statute  may  be  considered,  in  this  respect  as  a  true  exposition  and 
declaration  of  the  modern  law  of  nations. 

The  opinion  that  wars  ought  not  to  interfere  with  the  security 
and  collection  of  debts,  has  been  constantly  gaining  ground,  and  the 
progress  of  this  opinion  is  worthy  of  notice,  as  it  will  teach  us  with 
what  equity  and  liberality,  and  with  what  enlarged  views  of  national 
policy,  the  question  has  been  treated.  A  right  to  confiscate  the 
debts  due  to  the  enemy  was  the  rigorous  doctrine  of  the  ancient  law ; 
but  a  temporary  disability  to  sue,  was  all  Grotius  (b.  3.  c.  20.  s.  16) 
seemed  willing  to  allow  to  hostilities.  Since  his  time,  continued  and 
successful  efforts  have  been  made  to  strengthen  justice,  to  restrain 
the  intemperance  of  war,  and  to  promote  the  intercourse  and  hap- 
piness of  mankind.  The  power  to  collect  debts,  notwithstanding  the 
event  of  war,  is  not  an  unusual  provision  in  the  conventional  law  of 
nations.  In  the  treaty  of  commerce  between  England  and  France,  in 
1 713,  it  was  provided  by  the  2d  article,  that  in  case  of  war,  the  sub- 
jects of  each  power  residing  in  the  dominions  of  the  other,  should 
be  allowed  six  months  to  retire  with  their  property,  and  in  the  mean- 
time, should  be  at  full  liberty  to  dispose  of  the  same,  "and  the  sub- 
jects on  each  side  were  to  have  and  enjoy  good  and  speedy  justice, 
so  that  during  the  said  space  of  six  months  they  may  be  able  to  re- 
cover their  goods  and  effects."  So  also  in  the  treaty  of  commerce 
between  Great  Britain  and  Russia,  in  1766,  and  again  in  1797,  it  was 
provided,  that  in  case  of  war,  the  subjects  of  each  were  to  be  allowed 
one  year  to  v/ithdraw  v/ith  their  property  ;  and  they  were  also  author- 
ized to  substitute  others  to  collect  their  debts  for  their  benefit,  "which 
debts  the  debtors  should  be  obliged  to  pay  in  the  same  manner  as  if 
no  such  rupture  had  happened."  A  similar  provision,  in  substance, 
was  inserted  in  the  treaty  between  the  United  States  and  Russia,  in 
1785 ;  and  in  the  treaty  of  commerce  between  the  United  States  and 
Great  Britain,  in  1795,  the  government  of  each  country  was  prohib- 
ited to  interfere,  either  by  confiscation  or  sequestration,  with  private 
contracts,  and  it  was  expressly  declared  to  be  unjust  and  impolitic, 
that  the  debts  of  individuals  should  be  impaired  by  national  differ- 
ences. 

The  case  before  us  does  not  raise  the  question,  nor  do  we  give 
any  opinion  in  favor  of  the  right  of  action  by  aliens  who  resided  in 
the  enemy's  country  when  war  was  declared,  and  when  the  action 
was  commenced.  The  cases  appear  to  be  against  such  right.  But  as ' 
to  aliens  who  were  residents  with  us  when  the  war  broke  out,  or  who 
have  since  come  to  reside  here,  by  a  presumed  permission,  the  au- 
thorities seem  to  be  decisive.  And  whether  we  consider  this  case  in 
reference  to  the  decisions  of  the  English  courts,  to  the  act  of  Con- 
gress, or  to  the  sense  of  European  nations,  declared  in  their  treaties. 


142  PART IKS 

ami  hv  their  writers  (in  public  law,  the  i^lea  must  be  overruled;  and 
the  plaintiff  is  entitled  to  judgment,  upon  his  demurrer. 
Judgment  for  plaintiff.-^ 


"Accord:  Ottcridgc  v.  Thompson,  2  Cranch.  C.  C.  (U.  S.)  io8  (1814)  ; 
Janson  v.  Drcifontcin  Con.  Min.,  87  L.  T.  372  (1902)  ;  Princess  Thurn  and 
Taxis  V.  Moffit,  112  L.  T.  114  (1915)- 

The  rule  is  well  settled  that  during  any  war,  foreign  or  civil,  an  action 
can  not  be  prosecuted  by  an  enemy  residing  in  the  enemy's  territory,  but  must 
be  stayed  until  the  return  of  peace.  The  reasons  assigned  are  that  an  enemy 
shall  not  have  the  protection  of  the  courts  and  that  the  fruits  of  an  action 
shall  not  be  remitted  to  a  hostile  country  to  furnish  resources  to  the  enemy. 
Kcrsha  v.  Kclscy,  100  Mass.  561  (186S)  ;  McConncl  v.  Hector,  3  B.  &  P.  113 
(1802');  Alcinoiis  v.  Nigrcii,  4  El.  &  B.  216  (1854);  Janson  v.  Drcifontein 
Consolidated  Mines,  L.  R.  (1902)  App.  Cas.  484;  IFilcox  v.  Henry,  I  Pall. 
(PaJ_j69  (1782)  ;  Rttssel  v.  Skip-u'ith,  6  Binney  (Pa.)  241  (1814)  ;  Levine  v. 
Taylor,  12  Mass.  8  (1815)  ;  Bishop  v.  Jones,  28  Tex.  294  (1866)  ;  Whelan  v. 
Cook,  29  Md.  I  (1867) ;  Knoefel  v.  Williams,  30  Ind.  i  (1868)  ;  Sanderson  v. 
Morgan,  39  N.  Y.  231  (1868)  ;  Zacharie  v.  Godfrey,  50  111.  186,  99  Am.  Dec. 
506  (1869)  ;  Haymond  V.  Camd en,  22  W'.Wa.  80  (1883).  The  rule,  however,  sus- 
pends the  remedy  only  and  the  right  of  action  revives  on  suspension  of  hos- 
tilities. Bellv.  Chapman,  10  Johns.  (N.  Y.)  182  (1813)  ;  Hutchinson  v.  Brock, 
II  Mass.  119  (1814)  ;  Crutcher  v.  Hord,  4  Bush.  (Ky.)  360  (1868)  ;  Louisville 
&  N.  R.  Co.  V.  Buckner,  8  Bush.  (Ky.)  277  (1871),  and  by  treaty  or  law  "the 
statute  of  limitations  is  ordinarily  prevented  from  running.  Hopkirk  v.  Bell, 
3  Cranch  (U.  S.)  454  (1806)  ;  Steivart  v.  Kahn,  78  (U.  S.)  493  (1870)  ;  Cross 
V.  Sabin,  13  Fed.  309  (1882). 

The  existence  of  war  does  not  prevent  the  citizens  of  one  belligerent 
from  taking  proceedings  against  the  citizens  of  the  other  in  their  own 
courts,  whenever  the  latter  can  be  reached  by  process.  Masterson  v.  Howard, 
85  U.  S.  99  (1873)  ;  Seymour  v.  Bailey,  66  ill.  288  (1872)  ;  McNair  v.  Toler, 
21  Minn.  175  (1875)  ;  McVeigh  v.  United  States,  78  U.  S.  259  (1870);  Uni- 
versity V.  Finch,  85  U.  S.  106  (1873). 


CHAPTER  III. 
Actions. 

SECTION  I.     COMMON-LAW  ACTIONS.^ 

3  Blackstone's  Commentaries  117. 

With  us  in  England  the  several  suits,  or  remedial  instruments  of 
justice,  are  from  the  subject  of  them  distinguished  into  three  kinds: 
actions  personal,  real,  and  mixed. 

Personal  actions  are  such  whereby  a  man  claims  a  debt,  or  per- 
sonal duty,  or  damages  in  lieu  thereof ;  and,  likewise,  whereby  a  man 
claims  a  satisfaction  in  damages  for  some  injury  done  to  his  per- 
son or  property.  The  former  are  said  to  be  founded  on  contracts, 
the  latter  upon  torts  or  wrongs ;  and  they  are  the  same  which  the 
civil  law  calls  "actiones  in  personam,  quae  adversus  euni  infenduntur, 
qui  ex  contractu,  vel  delicto  obligatus  est  aliquid  dare  vel  concedere."- 
Of  the  former  nature  are  all  actions  upon  debt  or  promise ;  of  the  lat- 
ter, all  actions  for  trespasses,  nuisances,  assaults,  defamatory  words, 
and  the  like. 

Real  actions,  (or,  as  they  are  called  in  the  Mirror,^  feodal  ac- 
tions) which  concern  real  property  only,  are  such  whereby  the 
plaintiff,  here  called  the  demandant,  claims  title  to  have  any  lands 
or  tenements,  rents,  commons,  or  other  hereditaments,  in  fee-simple, 
fee-tail,  or  for  term  of  life.  By  these  actions  formerly  all  disputes 
concerning  real  estates  were  decided ;  but  they  are  now  pretty  gener- 
ally laid  aside  in  practice,  upon  account  of  the  great  nicety  required 
in  their  management,  and  the  inconvenient  length  of  their  process : 
a  much  more  expeditious  method  of  trying  titles  being  since  intro- 
duced, by  other  actions  personal  and  mixed. 

Mixed  actions  are  suits  partaking  of  the  nature  of  the  other 
two,  wherein  some  real  property  is  demanded,  and  also  personal 
damages  for  a  wrong  sustained.  As  for  instance  an  action  of  waste ; 
which  is  brought  by  him  who  hath  the  inheritance  in  remainder  or 
revision,  against  the  tenant  for  life  who  hath  committed  waste 
therein,  to  recover  not  only  the  land  wasted,  which  would  make  it 
merely  a  real  action ;  but  also  treble  damages,  in  pursuance  of  the 
statute  of  Gloucester,'*  which  is  a  personal  recompense;  and  so  both, 
being  joined  together,  denominate  it  a  mixed  action. 

Under  these  three  heads  may  every  species  of  .remedy  by  suit  or 
action  in  the  courts  of  common  law  be  comprised. 


^  See  Maitland's  History  of  the  Register  of  Original  Writs,  3  Harvard  Law 
Review,  97  ct  scq.,  reprinted  in  Select  Essays  in  Anglo-American  Legal  His- 
tory, vol.  II,  p.  549.  Stephen  on  Pleading,  Chap.  I ;  Gould  on  Pleading 
(Will's  ed.)   Chap.  I;  Chitty  on  Pleading,  Chap.  II. 

^4  Inst.  6,  15. 

'  Ch.  2,  §  6. 

^6  Edw.  I,  ch.  5. 


144  ACTIONS 

3  Stri:i:t's  1'\)L"ni)atio\.s  of  Li:(;ai,  LiAi'.ii.nv  44."' 

To  ijo  tliroiigh  the  catalogue  of  actions  in  order  to  place  them 
projierly  in  this  classification  would  be  unprofitable  and  the  result 
unsatisfactory.  We  have  a  hint  of  the  dilTiculties  that  would  be 
encountered  in  such  an  undertaking  when  we  learn  that  Bracton 
could  hardly  determine  in  his  own  mind  whether  the  assizes  of  novel 
disseisin  and  morte  d'ancestor  were  actions  in  rem  or  in  personam. 
We  must,  however,  notice  a  few  of  the  most  important  of  the  actions 
and  observe  where  they  belong. 

At  the  top  of  the  scale  actions  avialable  for  the  recovery  of 
lands  and  interests  therein  was  the  writ  of  right,  the  most  real  of 
the  real  actions,  the  great  and  final  remedy  for  the  recovery  of  pro- 
prietary interests  in  land.  Closely  associated  with  this  remedy  in 
procedure  v.ere  certain  other  writs  said  to  be  in  the  nature  of  the 
writ  of  right.  Such  were  the  w^it  of  right  of  dower,  the  formedon 
in  descender  and  reverter,  and  the  wTit  of  right  de  rotionabili  parte- 

Below  the  w^it  of  right  were  the  possessory  real  actions  known 
as  the  assizes  and  the  writ  of  entry.  In  the  assize  of  nozfel  disseisin 
the  plaintiff  recovered  both  seisin  and  damages,  this  being,  says 
Blackstone,  the  only  instance  where  damages  were  recoverable  in  a 
possessory  action  at  common  law. 

The  assizes  were  in  the  nature  of  statutory  remedies,  and  avail- 
able only  under  circumstances  defined  for  each.  The  writ  of  entry, 
on  the  other  hand,  was  the  universal  remedy  for  the  recovery  of  pos- 
session w-rongfully  withheld  from  the  owner.  Its  forms  were  many, 
"being  plainly  and  clearly  chalked  out  in  that  most  ancient  and 
highly  venerable  collection  of  legal  forms,  tlie  Registrnm  Brevium." 
Some  form  of  this  writ  was  available  by  a  party  ousted  of  his  tene- 
ments by  abatement,  intrusion,  or  disseisin,  and,  in  general,  for  de- 
forcements. But  the  widow's  writs  for  obtaining  her  dower  had 
special  names :  writ  of  dower  and  writ  of  dower  unde  nihil  habet. 
Tf  too  much  were  assigned  for  dower  her  holdings  could  be  cut  down 
by  means  of  a  writ  for  the  admeasurement  of  dower,  sued  out  at 
the  instance  of  the  heir  or  his  guardian.  The  writs  of  dower  were 
analogous  to  the  writ  of  right. 

For  disturbance  or  usurpation  of  the  right  of  presentation  to  a 
benefice  there  was  a  scheme  of  real  actions  beginning  with  the  writ 
of  right  of  advowson  and  ending  in  the  quare  impedit,  which  latter 
remedy,  in  Blackstone's  day,  had  supi)lanted  the  others  and  then 
remained  almost  the  sole  real  action  in  common  use.  For  disturb- 
ance in  franchises,  commons,  ways,  and  tenures,  the  usual  remedy 
was  by  an  action  on  the  case ;  but  a  real  action  for  the  admeasure- 
ment of  common  and  an  action  upon  a  writ  quod  permittat  w^ere 
respectively  available  for  surcharging  and  disturbing  the  common. 

The  writs  de  ejectione  firmae  and  quare  ejecit  infra  terminitm 
were  maintainable  at  the  suit  of  a  tenant  for  years  who  was  dispos- 
sessed of  his  interest  in  the  term.  The  former  lay  against  the  les- 
sor, reversioner,  remainderman,  or  any  stranger  who  was  himself 


See  tills  volume  frenerally  for  the  personal  actions  at  common  law. 


ACTIONS  145 

the  wrongdoer ;  the  other  against  a  person  claiming  under  a  wrong- 
doer. From  the  qiiare  ejecit  came  the  modern  action  of  ejectment. 
These  actions  are,  hke  waste,  mixed,  inasmuch  as  the  plaintiff  re- 
covers the  unexpired  term  and  damages  for  the  injury.  Originally 
the  recovery  of  damages  was  the  chief  object  in  ejectment,  but  as 
the  remedy  came  to  be  more  and  more  real  and  was  principally  used 
to  try  questions  of  title,  this  object  was  lost  sight  of.  The  damages 
recoverable  in  tlie  action  of  ejectment  thus  became  nominal,  and  the 
plaintiff  was  allowed  to  sue  for  his  actual  damages  in  an  independent 
action  for  mesne  profits. 

Of  personal  common-law  actions  the  most  important  are  account, 
covenant,  debt,  detinue,  assumpsit,  trespass,  case,  trover,  and  re- 
plevin. These,  as  we  have  seen,  are  divided  into  two  classes — actions 
ex  contractu  and  actions  ex  delicto;  a  classification  logical  enough 
in  itself,  but  made  somewhat  unsatisfactory  by  the  supposed  neces- 
sity of  forcing  the  action  of  detinue  into  one  or  the  other  divisions. 

One  who  compares  the  treatise  of  Bracton  with  such  a  modern 
work  as  Chitty  on  Pleading  will  be  struck  with  the  fact  that  the 
comparative  importance  of  the  real  and  personal  actions  has  been 
reversed  in  the  period  spanning  the  six  intervening  centuries.  Brac- 
ton wrote  a  big  book,  and  a  large  part  of  the  really  English  law 
which  he  undertook  to  expound  is  found  in  connection  with  the  sub- 
ject of  real  actions.  Of  the  personal  actions  he  has  little  or  nothing 
to  say.  In  Blackstone's  treatise  only  the  personal  actions  are  thought 
deserving  of  attention.  The  old  real  actions  vv^ere  practically  obso- 
lete when  Chitty  wrote  (1808),  and  within  the  succeeding  genera- 
tion legislation  abolished  nearly  every  remaining  vestige  of  them. 
The  procedure  incident  to  their  prosecution  was  too  cumbersome. 

It  was  a  toilsome  and  tedious  process,  that  by  which  English 
remedial  law  was  wrought  out.  Remedies  conceived  and  partially 
developed  in  one  field  had  to  be  warped  and  bent  to  strange  uses. 
Ejectment,  assumpsit,  trover,  all  illustrate  this.  Wondrous  are  the 
mazes  encountered  even  in  a  casual  glance  at  the  history  of  the 
various  actions.  That  there  has  never  been  a  logical  classification 
in  this  field  is  not  surprising.  Before  the  time  of  Blackstone  no  man 
could  have  been  in  a  position  to  see  tlae  subject  in  its  entirety.  Even 
when  Coke  Avrote,  many  new  things  were  yet  to  be  done  with  such 
actions  as  assumpsit,  detinvie,  trover,  and  replevin,  and  in  Black- 
stone's  day  some  parts  of  the  long  cavalcade  of  actions  had  already 
passed  or  were  receding  from  view. 


10 — Civ.  Proc. 


J46  A(."n(»NS 


"yy'KX^^^ 


'-^^^-^  ''■^■y    (a)  Eijectment.* 

^^^^  ^'•'  DEX^r.i-  (/<•;;;.   j(Ml.\S()X  v.    .MORRIS. 

SrpRKME  Coi'RT  or  Xr.w  jk.nskv,  1822. 
7  A'.  /.  /..  6. 


\ 


This  was  an  action  of  cicclnicnt,  and  came  before  the  court  ujion 
a  rule  to  show  cause  why  tlie  nonsuit  which  had  been  granted  by  tlie 
judj^e,  at  the  circuit,  should  not  be  set  aside  and  a  new  trial  j^ranted." 

KiKKPATRTCK,  C.  J.:  This  is  an  ejectment  for  lands  in  Salem. 
At  the  trial  of  the  cause,  it  was  moved  for  a  nonsuit  by  the  defend- 
ant's counsel;  because  the  lessor  of  the  plaintiff  had  not  shown  a 
title  by  deed  or  other  conveyance,  nor  a  possession  in  themselves  and 
those  under  whom  they  claimed,  for  the  term  of  twenty  years,  and 
the  ])laintilT  was  called  accordingly. 

The  ground  of  the  nonsuit,  as  thus  presented  by  the  counsel, 
and  taken  by  the  court,  is  not  c]uite  so  ])recisely  stated  as  could  have 
been  A\-ishcd.  From  the  manner  in  which  it  is  exi)ressed,  it  is  left 
doubtful  \\-hether  it  was  intended  to  say,  that  the  lessors  of  the 
plaintiflf  had  not  shown  a  possession  of  twenty  complete  years,  and 
therefore  not  a  sufficient  one  to  maintain  an  action  of  ejectment,  or 
that  they  had  not  shown  a  possession  within  twenty  years  before 
action  brought,  and  therefore  were  barred  by  the  statute. 

It  will  be  necessary,  therefore,  to  look  into  the  case,  and  see  how 
far  the  motion  is  supported  in  point  of  fact,  ujion  either  the  one  or 
the  other  of  those  grounds. 

But  before  I  proceed  to  this,  T  feel  myself  constrained,  from  the 
course  which  the  argument  at  the  bar  has  taken,  rather  than  from 
anything  in  the  case  itself,  to  make  a  few  observations  respecting 
the  action  of  ejectment,  as  it  has  been  used  in  this  state,  from  the 
earliest  settlement  of  the  country  down  to  this  time.  I  say,  I  feel 
myself  constrained  to  do  this  from  the  course  of  the  argument; 
for  it  has  been  insisted,  that  the  i)laintifT  in  ejectment  always  has 
been,  and  still  is  obliged,  in  order  to  maintain  his  suit,  to  show, 
what  the  counsel  call,  a  comj)lete,  substantive,  impregnable  title; 
that  is.  as  it  has  been  explained,  a  regular  deduction  of  title,  by  deed 
from  Charles  II  down  to  himself,  or  an  exclusive  and  uninterrupted 
possession  in  himself  and  those  under  whom  he  claims,  formerly 
for  sixty  years,  then  for  thirty,  and  now  for  twenty,  according  as  the 
successive  statutes  of  limitation  prevailed;  or  in  other  words,  such 
a  title  as  might  be  disputed,  indeed,  in  point  of  fact,  but  could  never 
be  overcome  by  one  superior  to  it.  And  by  way  of  fortifying  this 
position,  reference  is  made  to  former  practice,  in  which  it  is  said 
such  deduction  was  uniformly  made,  and  always  required. 


'See  3  Blackstone's  Commcntaric<:,  199;  3  Stephen's  Commentaries 
Ci5th  ed.),  403;  Adams  on  Ejectment,  ch.  i;  Sedgwick  &  Wait  on  Trial  of 
Title  to  Land.  ch.  i. 

'  Part  of  the  opinion  is  omitted. 


JOHNSON  V.   MORRIS  147 

Let  us  examine  this  position  a  little.  By  the  common  law,  estates 
of  freehold  in  lands  passed  by  livery  of  seisin  only;  that  is,  by  a  de- 
livery o\er  the  actual  possession.  He,  therefore,  who  was  in  the 
actual  possession  of  land,  v.^as,  prima  facie,  the  tenant  of  the  free- 
hold, and  had  in  him  the  heritable  sesina  facit  stipitem.  If  he  were 
ousted  or  dispossessed  of  this  freehold,  by  one  who  had  no  right,  he 
might  without  process  of  law,  make  a  peaceable  entry,  or,  if  de- 
terred from  that,  he  might  make  claim  from  year  to  year,  which 
was  called  continual  claim,  as  near  the  land  as  he  could,  and  such 
entry  or  claim  restored  him  to  his  lawful  seisin,  and  made  him  capa- 
ble again  of  conveying,  either  by  descent  or  purchase.  This  right  of 
entry,  though  it  might  be  tolled  or  taken  away  by  a  descent  cast,  and 
so,  generally  speaking,  must  be  pursued  during  the  life  of  him  that 
made  the  ouster,  or  be  forever  lost,  yet  it  was  limited  to  no  particular 
period  or  number  of  years;  so  that  if  it  was  not  actually  lost  by 
descent  or  otherwise,  the  lawful  owner  might,  at  all  times,  restore 
himself  by  entering  upon  the  wrongdoer,  in  a  peaceable  manner, 
and  turning  him  out;  but  if  he  suffered  it  to  be  once  lost,  he  could 
no  longer  restore  himself  by  his  own  act,  but  must  have  recourse  to 
his  action  at  law.^  And.  indeed,  even  where  it  was  not  lost,  as  it 
but  seldom  happened  that  the  wrongdoer  would  tamely  submit  to  be 
turned  out  without  force,  the  owner,  if  his  object  was  to  gain  the 
actual  possession  and  enjoyment  of  the  land,  and  not  merely  to  put 
himself  in  a  capacity  to  make  a  lawful  conveyance,  was  generally 
obliged  to  have  recourse  to  such  action,  and  to  call  to  his  aid  the 
process  of  the  law,  to  restore  to  him  that  right  which  he  could  not 
obtain  by  peaceable  means  without  it;  so  that,  in  most  cases  it  may 
l)e  said,  he  was  put  to  his  action,  even  when  his  right  of  entry  was 
not  tolled  or  taken  away. 

This  action  might  be,  in  the  first  place,  by  writ  of  entry,^  in 
which  he  undertook  to  prove  his  own  former  possession,  and  that  the 
defendant,  or  some  one  under  whom  he  held,  had  dispossessed  him ; 
to  which  the  defendant  might  answer  by  denying  the  fact  of  the 
dispossession,  or  by  showing  in  himself  an  older  and  a  better  pos- 
session;  and  then,  upon  the  trial,  it  was  adjudged  for  him  who  had 
the  clearest  right,  or  it  might  be,  in  the  second  place,  after  the 


■  It  would  seem  that  in  the  time  o£  Bracton  "A  term  of  four  days  was 
tlie  time  during  which  one  who  has  ousted  the  owner  must  de  facto  hold  it 
in  order  that  he  may  have  seisin  of  it."  Maitland,  The  Beaiititude  of  Seisin,  4 
Law  Quarterly  Review,  31. 

"At  common  law  a  writ  of  entry  was  a  possessory  action  brought  against 
the  occupant  of  a  freehold  in  possession  under  an  entry  alleged  to  have  been 
unlawfully  made  by  him  or  those  under  whom  he  claimed.  Booth  on  Real 
Actions,  172;  III  Blackstone's  Commentaries,  181;  15  Cyc.  1059.  These  writs 
were  of  various  sorts  according  to  the  nature  of  the  injury  intended  to  be 
redressed.  Steam  on  Real  Actions,  139.  By  the  middle  of  the  eighteenth 
century  they  were  nearly  obsolete  and  were  abolished  by  the  act  of  3  and  4 
William  IV,  cb.  27,  §  36  (1833),  but  in  America  they  were  used  in  several  of 
the  colonies  in  preference  to  ejectment  and,  with  modifications,  survived  the 
Revolution.  Hancock  v.  Wentworth,  46  Mass.  446  (1843)  ;  Bussey  v.  Grant, 
20  Maine  281;  WitJierov  v  Krllcr^  ir  S.  &  R.  Pa.  271  (1824)  ;  Potter  v. 
Raker,  19  N.  H.  166  (1848).  Where  still  in  use,  the  proceedings  are  largely 
statutory.    Rev.  Laws  of  Mass.   (1902),  cb.   179. 


14^  At  IIONS 

rcii^n  of  Ilenr}-  II  by  writ  of  assize,  which  went  upon  the  suggestion, 
that  tlie  demandant's  ancestor  had  died  in  possession,  and  that  he 
was  tlie  next  heir;  and  therefore  directed  the  sheriff  to  inquire,  by 
a  jury,  whether  this  were  so,  and,  if  found  for  the  demandant,  the 
land  was  immediately  restored.^"  Hut  still,  even  if  the  demandant 
prevailed  in  these  actions,  it  only  restored  to  him  his  former  posses- 
sion, it  decided  nothing  with  respect  to  the  right  of  property;  all 
that  he  had  to  show,  in  order  to  n^aintain  his  suit,  was  the  possession 
of  himself  or  his  ancestor,  and  this  might  he  overcome  by  the  de- 
fendant showing  an  older  and  a  better  ])osscssion ;  for  it  never  was 
pretended  that  the  demandant's  must  be  such  a  possession  as  estab- 
lished the  ultimate  right ;  for  this,  either  party  might  afterwards 
resort  to  his  writ  of  right."  In  these  possessory  actions,  therefore, 
neither  the  deed  of  feoffment,  by  which  the  estate  was  created, 
nor  the  actual  livery  of  seisin  upon  such  deed  were  necessarily  given 
in  evidence,  but  the  mere  possession  only.  And  so  also  after  the  29 
Car.  II  which  directed  that  all  conveyances  of  land  should  be  in 
writing,  and  not  otherwise,  it  was  not  necessary,  upon  the  same  prin- 
ciple, to  give  the  writing  in  evidence,  and  tlie  reason  was,  that 
the  deed  of  feoffment  and  livery  of  seisin  thereupon,  in  ancient 
times,  and  the  written  conveyance  tuider  the  statute,  related  to,  and 
were  evidence  of,  the  commencement  of  the  estate,  and  of  the  ulti- 
mate right  only,  which  was  not  at  all  in  question ;  but  that  they 
could  be  no  proof  of  the  actual  and  subsequent  ])ossession  upon 
which  the  ouster  was  alleged  to  have  been  committed,  and  which 
was  the  foundation  of  those  possessory  actions,  and  the  only  thing 
to  be  proved  in  them,  or  recovered  by  them.  It  is  true  that  those 
might  be  given  in  evidence,  and  might  greatly  strengthen  the  proof 
of  possession,  but  they  were  not  essential  to  the  maintenance  of  the 
action ;  that  depended  upon  the  mere  possession. 

To  these  real  actions  for  the  recovery  of  the  possession  of 
lands,  succeeded,  in  common  use,  the  action  of  ejectment.  This 
was  not  originally  devi.sed  as  a  remedy  for  injuries  done  to  real 
estates,  that  is,  to  estates  or  freehold  in  lands,  but  as  a  remedy 
for  injuries  done  to  chattels  real,  such  as  terms  for  years,  which 
were  considered  as  mere  chattel  interests.    But  then,  as  one  who 


'"III  Blackstone's  Commentaries,  184;  1  Pollock  &  Maitland's  Hist.  F".ng:. 
L.  (2d  ed.)   144.    Writs  of  assize  were  also  abolished  in  Entrland  in  1833. 

"  The  writ  of  right  was  the  most  important  of  the  real  writs.  While  it 
lay  concurrently  with  all  other  real  actions  in  which  an  estate  in  fee  simple 
could  be  recovered,  it  was  the  exclusive  and  final  remedy  of  an  owner  of  land 
in  fee  simple  who  had  lost  the  right  to  recover  in  a  possessory  action.  Ill 
Blackstone's  Commentaries,  193.  The  writ,  with  other  obsolete  real  actions, 
was  abolished  in  England  in  1833.  In  America  the  writ  of  right  was  in  use 
in  several  of  the  .states.  Haines  v.  Budd,  i  Johns.  (N.  Y.)  335  (1800)  ;  Leon- 
ard v.  Leonard^  10  Mass.  280  (1813)  ;  Green  v.  Liter,  8  Cranch  (U.  S.)  229 
(1814);  Ten  Eyck  v.  Waterbury,  7  Cowcn  (N.  Y.)  51  (1827);  Boiling  v. 
The  Mayor,  3  Rand.  (Va.)  563  (1825);  Genin  v.  Ingersoll,  2  W.  Va.  558 
(1868).  So  also  the  Writ  of  Formedon,  the  writ  of  right  of  the  tenant  in 
tail,  IVells  v.  Prince,  4  Mass.  63  (1808)  ;  Dozv  v.  Warren,  6  Mass.  327  (1810). 
Statutory  real  actions  and  the  action  of  ejectment  have  superseded  these 
ancient  methods  of  trying  title.  Kerr  v.  Leigliton,  2  Greene  (Iowa)  196 
(1849)  ;  Betz  V.  Mnllin,  62  Ala.  365  (1878). 


JOHNSON  V.   MORRIS  149 

came  into  a  court  of  justice  to  complain  that  he  had  been  ousted 
of  his  term,  must  necessarily  show  that  such  term  existed,  and  that 
the  lease  under  which  he  claimed  was  a  good  and  valid  lease,  and, 
of  course,  that  the  lessor  had  a  right  to  make  it,  the  title  of  the 
lessor  was  thereby  brought  into  question,  as  fully  and  upon  the 
same  principles  as  it  would  have  been  in  the  real  action;  so  that 
though  the  action  of  ejectment  got  clear  of  all  the  intricacy  and  per- 
plexity of  the  real  action,  and  so  become  an  easy  and  expeditious 
method  of  trying  the  title  to  land,  yet  it  required  precisely  the  same 
proof  of  title  in  substance  as  the  real  action  did.  For  tliough  the 
form  of  the  action  may  have  been  changed,  yet  the  great  principles 
of  right  have  not  been  changed,  nor  can  they  be  without  a  total 
subversion  of  the  whole  system  of  property  in  land.  In  a  real  ac- 
tion, the  demandant  must  show  his  possession,  his  ouster,  and  his 
right  to  re-enter;  in  an  ejectment,  the  lessor  of  the  plaintiff  must 
show  the  very  same  thing;- — he  must  show  that  he  has  been  in  pos- 
session of  the  land ;  that  it  is  now  withholden  from  him,  which  is  an 
ouster;  and  that  he  had  a  right  to  re-enter  and  make  the  lease  in 
question.  I  say  he  must  show  those  things,  for  the  lease,  entry  and 
ouster,  which  are  confessed  are  the  mere  form  of  the  action,  and 
have  nothing  to  do  with  the  substantial  right.  The  title,  therefore, 
vdiich  the  lessor  of  the  plaintiff,  by  the  consent  rule,  is  bound  to  rest 
upon,  and  which  he  is  obliged  to  make  out  at  the  trial,  is  his  right  of 
entry,  (for  if  he  had  this  right,  it  is  always  confessed  that  he  had  a 
right  to  make,  and  did  make,  the  lease)  a  right  which,  upon  the 
principles  of  the  common  law,  necessarily  results  from  his  having 
had  an  anterior  and  peaceable  possession  of  the  lands  in  question, 
and  their  being  now  withholden  from  him  by  the  defendant ;  a  right, 
too,  which  can  not  be  overcome  by  any  subsequent  possession,  unless 
it  has  been  tolled  or  taken- away  in  the  manner  before  mentioned,  or 
is  restrained  by  the  statutes  of  limitation. 

Let  us,  then,  look  a  little  to  the  history  of  these  statutes,  and 
consider  their  nature  and  effect. 

I  have  said  before,  that  this  right  of  entry  by  the  common  law, 
was  unlimited,  in  point  of  time,  as  were  also  the  real  actions  of 
which  I  have  spoken.  In  the  progress  of  society,  however,  it  was 
found  necessary  to  constrain  men  to  pursue  their  rights  within  a 
reasonable  time  or  to  abandon  them  forever,  and  especially  so  where 
they  were  to  be  pursued  by  the  mere  act  of  the  party  himself,  with- 
out the  intervention  of  judicial  authority.  Hence,  after  sundry  other 
statutes,  the  32  Henry  VIII  which  limits  writs  of  right  to  sixty 
years ;  writs  of  assize  and  entry  and  other  possessory  writs,  if 
founded  upon  the  possession  of  one's  ancestors,  to  fifty  years;  and 
if  founded  upon  one's  own  possession,  to  thirty  years.  Hence,  also, 
the  21  Jac.  I,  which  declares,  that  none  shall  make  entry  into  lands 
but  within  twenty  years  next  after  his  right  or  title  shall  accrue  to 
the  same.^-  After  this  last  statute,  if  the  lawful  owner  did  not  make 


"In  England  the  Act  of  3  and  4  William  IV,  ch.  2y  (1833),  reduced  the 
period  of  limitation  in  actions  relating  to  real  property,  from  sixty  to  twenty 
years,  except  in  cases  of  disability,  in  which  ten  years  from  the  removal  of 
such  disability  was  allowed  for  the  assertion  of  their  rights.    By  the  Act  of 


15*^  ACTIONS 

his  entry,  and  si)  restore  liinisclf  to  liis  |)()sscssi()n  within  the  time 
therein  prescribed,  liis  right  to  do  so  in  this  extra-judicial  manner 
was  gone,  but  still  his  right  to  have  possession  of  the  land  re- 
mained as  before.  The  only  dili"crence  in  his  condition  was,  that  be- 
fore he  had  the  remedy  in  his  own  hands,  and  he  could  restore  him- 
self when  he  pleased;  but  that  now  his  remedy  was  in  the  hands  of 
the  law,  and  he  must  be  restored,  if  at  all,  by  its  judicial  process. 
r>ut  his  right,  in  both  cases,  was  the  same,  a  mere  i)ossessory  right, 
founded  upon  his  having  had  the  possession,  and  his  having  been 
turned  out  of  it  by  the  defendant;  in  both  cases  he  was  restored  to 
his  possession,  and  his  possession  only. 

But  those  statutes  of  limitation  which  governed  those  remedies 
in  England  were  not  considered  as  extending  to  this  country,  until 
the  Act  of  ^7^7.  which  declares,  that  "all  the  b'.nglish  statutes  con- 
cerning tfie  limitation  of  actions,  real  and  personal,  shall  be  in  force 
here." 

[The  court  discusses  the  early  statutes  of  limitation  and  con- 
tinues:] 

The  right  of  the  lawful  owner,  therefore,  to  enter  upon  the 
wrongdoer  in  this  extra-judicial  manner,  and  so  to  restore  himself 
to  his  possession  and  make  leases,  etc.,  from  the  first  settlement  of 
the  province  till  the  act  of  1727,  was  wholly  unlimited  in  point  of 
time;  from  that  time  till  the  Act  of  1787  it  was  limited  to  sixty 
}ears ;  after  that,  in  some  cases,  to  thirty  years ;  and  since  the  Act  of 
1798,  in  all  cases,  with  the  usual  sa\ings,  to  twenty  years  :^''  and  as 
this  right  of  entry  is  the  foundation  of  the  action  of  ejectment,  that 
action,  of  course,  was  limited  in  the  same  manner,  and  not  other- 
wise. But  that  limitation  is  merely  a  limitation  of  the  time  within 
which  the  entry  must  be  made,  and,  by  no  i)ossible  construction,  a 
designation  of  the  time  during  which  the  possession  must  have 
continued.  Can  any  book  case  be  found  in  which,  since  the  21  Jac. 
1,  a  possession  of  twenty  complete  years  has  been  holden  necessary 
to  maintain  an  ejectment?  None  such  can  be  found.  One  comes 
into  a  court  of  justice,  and  says  he  has  been  in  i)ossession  of  lands 
for  five,  ten,  or  iifteen  years,  and  that  the  defendant  has  turned  him 
out,  and  holds  him  out,  shall  he  be  told  he  has  no  redress,  because 


37  and  38  Victoria,  cli.  37  (1S74),  twelve  was  sul)slituted  for  twenty  years 
and  .six  years  for  the  extra  ten  allowed  to  persons  under  disabilit}-. 

In  Pennsylvania  the  Act  of  Marcii  26,  1785  (2  Smith's  Laws  299,  §  2), 
barred  an  entry  after  the  expiration  of  twenty-one  \ears,  hut  the  entrj'  is 
onlv  barred  bv  hostile  and  adverse  possession.  Jfnzvic  v.  Scii.'ioiiaii.  6  S.  ik 
R.  "(Pa.)    21    (1820). 

Those  under  disal)ility  were  allowed  ten  years  from  its  removal,  §  4. 
But  the  ri^bt  of  entry  of  persons  under  disability  is  definitely  limited  to 
thirty  years  by  the  Act  of  April  22,  1836,  P.  L.  532,  §  i.  Hunt  v.  IVall,  75  Pa. 
413  (1874).  Ejectment  must  be  brouj:ht  within  one  year  after  entry  to  arrest 
the  runnintr  of  the  statute.  Doiif/las  v.  Irvine,  126  f'a.  643  (i88<^).  See  fur- 
ther for  En^'land.  Banniu);  on  the  Limitation  of  Actions,  ch.  g,  and,  for  the 
L'nited  States,  Kelly  on  Code  Limitations  of  Actions,  ch.  12.  N.  Y.  ("ode  Civ. 
Proc.  §  365,  recjuircs  seisin  within  twenty  years  before  the  commencement  of 
the  action. 

"  See  3  Compiled  Statutes  of  New  Jersey,  3169.  Den  v.  Jl'riylit,  7  N.  J. 
L.  173  (1824')  ;  Pinckney  v.  Barrage,  31  N.  J.  L.  21   (1864). 


JOItNSON  V.   MORRIS  I5I 

he  has  not  been  in  twenty  ccniiplete  years  ?  And  shall  the  defendant 
be  justified  in  withholding  from  him  his  peaceable  possession,  thus 
tortiously  and  forcibly  gained  ?  Suppose  another  should  enter  and 
turn  him  out,  and  another  him,  shall  the  last  always  hold?  To  what 
would  all  this  lead  but  a  mere  trial  of  strength,  in  defiance  of  all 
law ;  for  it  is  directly  in  the  tooth  of  that  universally  acknowledged 
])rinciple,  that  peaceable  possession  itself  is  a  title  which  shall  never 
be  disturbed  but  by  one  who  has  a  better  right,  and  which,  therefore, 
the  law  will  carefully  protect  until  that  right  be  shown  in  a  judicial 
manner.  And  whether  that  possession  has  lasted  five  years,  or  ten 
years,  or  twenty  years,  the  law  sees  no  difference.  Upon  what 
ground,  then,  is  this  notion  of  possession  of  twenty  complete  years 
founded?  Certainly  the  21  Jac.  I  says  no  such  thing — our  Act  of 
1798  says  no  such  tiling;  they  merely  limit  the  time  of  entry,  but 
require  no  possession  of  twenty  complete  years  for  this  or  any 
other  purpose.  Well,  if  those  statutes  do  not  rec]uire  it,  what  is  it 
that  does  require  it?  Ts  it  the  common  law?  Let  us,  then,  lay  the 
statutes  of  limitation  out  of  the  question,  and  then  let  us  inquire 
what  length  of  possession  did  the  common  law  require.  Does  it 
say  auAthing  about  twenty  years,  or  thirty,  or  fifty,  or  even  three 
score  years  ?  No.  Time  immemorial  was  its  only  limitation — time 
whereof  the  memory  of  man  runneth  not  to  the  contrary,  and  be- 
yond which,  of  course,  no  proof  could  possibly  reach.  But  will  any 
one  say,  that  a  possession  for  time  immemorial  was  necessary  to 
support  an  ejectment  or  other  possessory  action?  No  one  will  say 
so.  It  is  true  that,  in  early  times,  it  was  custoAiary,  in  actions  of 
ejectment,  to  deduce  title  from  the  general  pro])rietors,  and  thereby 
to  cut  ofif  all  pretensions  of  the  defendant  at  once,  and  that  this  con- 
tinued to  be  the  custom  up  till  the  revolutionary  war,  and  for  some 
time  afterwards ;  and  it  is  true,  too,  that  this  is  done  even  till  this 
day,  when  it  can  conveniently  be  done,  because  it  is  by  far  the 
shortest  and  safest  course,  for  it  stops  the  mouth  of  the  defendant 
in  limine.  But  the  conclusion  that  is  drawn  from  this,  to  wit,  that 
the  ejectment  was  put  upon  the  same  footing  as  the  writ  of  right, 
and  required  the  same  proof,  and  had  the  same  consequences,  is  not 
true.  It  never  was  put  upon  the  footing  of  the  writ  of  right ;  it  never 
was  conclusive  ujion  the  right  of  proj)erty ;  it  never  did  necessarily 
require  such  deduction  of  title ;  but,  on  the  contrary,  always  de- 
l)ended  upon,  and  was  governed  by,  its  own  proper  principles ;  and, 
except  in  die  cases  I  have  mentioned,  kept  within  its  own  proper 
bounds.  I  never  heard  of  a  nonsuit  or  a  decision  made  against  the 
l)laintifl^,  upon  the  ground  that  he  had  not  made  such  deduction  of 
title,  except  in  one  case  from  Sussex,  I  think,  in  the  Court  of 
l'>rors  at  Perth  Aniboy,  and  in  that,  probably,  there  might  have  been 
intermingled  other  operative  reasons,  not  much  connected  with  the 
case,  and  not  now  easy  to  be  traced.     *     *     * 

I  conclude,  then,  that  the  lessor  of  the  plaintiff,  in  an  action  of 
ejectment,  must  always  count  upon  and  show  a  possession  of  the 
land  within  the  time  to  which  the  right  of  entry  is  limited,  and  under 
our  Act  of  1798,  within  twenty  years  next  before  the  action  brought, 
otherwise  he  is  barred;  but  that  he  need  not  show  a  possession  of 


15-  ACTIONS 

twonty  coniiilcto  years,  or  of  any  oilier  iiunibor  of  years,  lurtlier  than 
is  necessary  to  constitute  a  full  and  peaceable  possession;"  and 
that  this  being  merely  a  possessory  action,  and  the  possession  to  be 
proved  not  being  intended  to  establish  the  ultimate  right,  and  not 
depending  for  its  validity  upon  the  manner  in  which  it  commenced, 
but  being  a  mere  matter  in  pais,  it  may  be  shown  as  well  without 
dcetl  as  with  it,  though,  when  without  it,  it  will  always  be  looked 
upon  with  greater  jealousy,  and  be  overcome  with  greater  ease.^^ 

[The  court  then  reviews  the  facts,  finds  evidence  of  undisturbed 
possession  in  the  lessors  of  the  plaintiffs  and  those  under  whom 
they  held  from  1759  to  1813  and  concludes:] 

Upon  whichsoever  of  the  two  grounds  first  stated  we  may  go, 
therefore,  I  see  nothing  in  the  case  that,  in  point  of  fact,  can  sup- 
port the  motion;  and  even  if  it  were  otherwise,  and  the  lessors  of 
the  plaintift  had  given  no  evidence  of  a  possession  of  twenty  com- 
plete years,  but  only  of  a  possession  within  twenty  years,  the  motion 
must  fail,  for  the  law  is  not  so.    In  my  opinion,  therefore, 

Let  the  rule  for  a  new  trial  be  made  absolute. ^'^ 

"Accord:  Smith  v.  Lorillard,  10  Johns.  (N.  Y.)  338  (1813)  :  Hoev  v.  Fur- 
man^  I  Pa.  295  (1845)  ;  Currier  v.  Gale,  91  Mass.  522  (1865)  ;  Bowman  v.  Wet- 
tig,  39  111.  416  (1866)  ;  Elofrson  v.  Lindsay,  90  Wis.  203  (1895).  As  to  what  is 
evidence  of  possession  see  English  v.  Johnson,  17  Cal.  107  (i860)  ;  Courtney  v. 
Turner,  12  Nev.  345  (1877)  ;  Miller  v.  Long  L<;land  R.  Co.,  71  N.  Y.  380  (1S77)  ; 
Perrx  v.  Weeks,  137  Mass.  584  (1884)  ;  Thompson  v.  Burhaus,  79  N.  Y.  93 
(1879)  ;  Doe  V.  Roe,  26  Del.  78  (1911). 

"In  the  absence  of  a  paper  title,  possession  is  prima  facie  evidence  of 
ownership.  Strange  v.  White,  84  Ala.  212  (1887)  ;  Robinoe  v.  Doe,  6  Blackf. 
85  (1841)  ;  Plume  v.  Steivard,  4  Cal.  94  (1854)  ;  Dale  v.  Faivre,  43  Mo.  556 
(1869)  ;  Hunter  v.  Starin,  26  Hun  (N.  Y.)  529  (1882)  ;  Beam  v.  Gardner.  18 
Pa.  Super.  Ct.  245  ( 1901 )  ;  McCreary  v.  Jackson  Lumber  Co./ 148  Ala.  247 
(1906);  Perry  v.  Clissold,  L.  R.  (1907)  App.  Cas.  72.  Possession  is,  how- 
ever, the  lowest  form  of  evidence.  It  is  merely  presumptive  and  liable  to  be 
overcome  b}-  any  evidence  showing  the  character  of  the  possession,  and  that 
it  is  not  necessarily  as  owner.  Rawley  v.  Brozvn,  71  N.  Y.  85  (1877)  ;  Alexan- 
der V.  Campbell,  74  Mo.  142  (1881)  ;-Cahill  v.  Caliill,  75  Conn.  522  (1903).  The 
legal  title  to  real  property  carries  with  it  the  right  of  possession  and  this 
is  sufficient  against  an  adverse  occupant  who  has  not  remained  in  possession 
a  sufficient  length  of  time  to  divest  the  legal  title.  Norton  v.  Frederick,  107 
Minn.  36  (1909)  ;  Kreamer  v.  Voneidq.  213  Pa.  74  (1905). 

"Accord:  Den  v.  Sinnickson,  9  N.  J.  L.  149  (1827);  Leport  v.  Todd, 
32  N.J.  L.  124  (1866). 

The  plaintiff  must  recover  on  the  strength  of  his  own  title,  not  the  weak- 
ness of  that  of  his  adversary-.  Joseph  v.  Bonaparte,  118  Md.  591  (1912)  ; 
Turknett  v.  Johnson,  66  Fla.  309  (1913)  ;  Center  Bridge  Co.  v.  Wheeler.  86 
Conn.  585  (1913);  James  v.  Hutchinson,  72,  W.  Va.  488  (1914).  The 
plaintiff  must  trace  his  paper  title  back  to  someone  who  is  shown  to  have  been 
in  possession  of  the  locus  in  quo,  or  failing  in  that,  he  must  show  that  his 
grantor  acquired  title  from  the  original  proprietors.  Troth  v.  Smith,  68  N.  J. 
L.  36  (1902). 

Where  both  parties  claim  title  from  a  common  source,  the  plaintiff  need 
not  go  back  of  that  source  since  neither  party  can  deny  the  title  under  which 
he  claims.  The  inquiry  is  limited  to  which  has  the  better  title.  l<iddl£_ji__ 
MuyJ>]j^,  7  Serg.  &  R.  (Pa.)  230  (1821)  ;  Clark  v.  Trindle,  52  Pa.  492  (1866)  ; 
Pollock  v.  Maison,  41  HI-  516  (1866);  Jav  'vT^ichael,  82  Md.  i  (1896); 
Drake  v.  Happ,  92  Mich.  580  (1892)  ;  Board  v.  Board,  L.  R.  (1873),  9  Q.  B. 
48;  Gaines  v.  New  Orleans,  73  U.  S.  642  (1867)  ;  Mining  Co.  v.  Tavlor,  100 
U.  S.  37  (1879). 

The  common-law  rule  is  that  an  equitable  title  to  land  will  not  support 


CAPERTON   V.   SCHMIDT  1 53 

CAPERTON  V.  SCHMIDT.  ^f""- 

Supreme  Court  of  California^  1864. 
26  Cal.  479. 

The  plaintiff,  Caperton,  brought  an  action  against  the  defendant, 
Schmidt,  to  recover  certain  real  property  in  the  City  of  Oakland 
relying  on  a  title  derived  from  the  original  grantee  of  the  Mexican 
government.  On  the  trial  the  defendant  offered  in  evidence  the 
record  of  a  former  suit  by  the  plaintiff  against  the  defendant  for  the 
recovery  of  the  same  land,  in  which  it  was  adjudged  that  the  de- 
fendant was  the  owner  of  an  undivided  interest  in  the  tract  amount- 
ing to  forty  eighty-firsts.  The  evidence  was  rejected  and  judgment 
entered  for  the  plaintiff. 

Defendant  appealed  contending  that  the  judgment  in  the  former 
suit  was  conclusive.  Plaintiff  argued  that  a  verdict  and  judgment  in 
ejectment  did  not  conclude  the  parties  from  questioning  the  title  in 
a  subsequent  contest  about  the  same  land.^^ 

Sawyer,  J. :  From  habit,  and  as  a  matter  of  convenience,  we  ordi- 
narily speak  of  the  action,  in  a  general  sense,  as  an  action  of  eject- 
ment. This  is  well  enough,  so  long  as  we  do  not  suffer  ourselves  to 
be  misled  by  confounding  the  action  to  recover  real  estate  in  use 


an  action  of  ejectment.  Sin'ayzc  v.  Burke,  12  Peters'  (U.  S.)  II  (1838)  ; 
Peck  V.  Newton,  46  Barb.  (N.  Y.)  173  (1862);  J-allette  v.  Bennett, 
69  111.  632  (1873);  Windsor  v.  Bacon,  7  Houst.  (Del.)  i  (1884);  Allen  v. 
Woods,  68  L.  T.  (N.  S.)  143  (1893)  ;  Paisley  v.  Hobzshu,  83  Md.  325  (1896)  ; 
Russell  V.  Allmond,  92  Va.  484  (1896)  ;  Carter  v.  Ruddy,  166  U.  S.  493  (1897)  ; 
Nalle  V.  Thompson,  173  Mo.  595  (1902);  Mead  v.  Cheshrough,  B.  Co.,  151 
Fed.  998  (1907)  ;  McPall  v.  Kirk'patrick,  2T,(i  III.  281  (1908)  ;  Taylor  v.  Russell, 
65  W.  Va.  632  (1909).  In  Pennsylvania,  in  the  absence  of  a  court  of  chan- 
cery, equitable  ejectment  was  recognized  as  part  of  the  system  of  administer- 
ing equity  in  'common-law  forms.  Hawthozu.  V.  Bronson^  16  Serg.  &  R.  (Pa.) 
269  (1827);  Ohio,  &c.,  Co.  V.  Pennsylvania  Co..  222  Pa.  573  (1909).  In 
other  jurisdictions,  usually  under  tneir  codes,  ejectment  will  lie  on  an  equit- 
able title.  State  v.  Johnson,  26  Wash.  668  (1901)  ;  Wright  v.  Fort,  126  N.  Car. 
615  (1909);  Laughlin  v.  Fariss,  7  Okla.  i  (1897);  Dodge  v.  Spiers,  85  Ga. 
585  (1890)  ;  Pope  V.  Nichols,  61  Ivans.  230  (1899)  ;  ll'hitcliead  v.  Callahan,  44 
Colo.  396  (1908).  Pomeroy's  Code  Remedies  (4th  ed.),  §  40,  compare  Sedg- 
wick &  Wait  on  Trial  of  Titles  to  Land,  §  790.  In  New  York  a  plaintiff  can 
not  reform  a  deed  through  the  medium  of  an  action  of  ejectment.  Hall  v. 
La  France  F.  E.  Co.,  158  N.  Y.  570  (1889).  But  if  a  deed  is  set  up  to  avoid 
his  claim  he  may  avoid  it  by  proof  of  the  fraud  by  which  it  was  obtained. 
Babcock  v.  Clark,  93  App.  Div.  (N.  Y.)  119  (1904).  While  at  common  law 
equitable  defenses  were  not  available  in  ejectment,  many  states  permit  the 
interposition  of  such  defens'es.  Thurman  v.  Andcr^^on,  30  Barb.  (N.  Y.)  621 
(i860).  See  also  cases  in  15  Cyc,  p.  71.  There  is  a  conflict  of  authority  as 
to  whether  ejectment  can  be  maintained  on  an  equitable  estoppel.  Compare: 
Buchanan  y.  Mycr  3  Yeates  (Pa.)  586  (1803)  ;  Tindall  v.  Conover,  20  N.  J.  L. 
214  (i»43);  Suddarth  v.  Kobertson,  ii8  Mo.  286  (1893)  ;  Rutland  R.  Co.  v. 
Chaffee,  71  ^'t.  84  (1898)  ;  Sumnicrfield  v.  White,  54  W.  Va.  311  (1903),  with 
Nix  V.  Collins,  65  Ga.  219  (1880);  Winter  v.  White,  70  Md.  305  (1889); 
Harrison  v.  Alexander,  135  Ala.  307  (1902)  ;  Amboy,  City  of  v.  Illinois  C.  R. 
Co.,  236  111.  236  (1908). 

''The  arguments  of  counsel  are  omitted  and  the  statement  of   facts  is 
abridged  from  the  opinion  of  the  court,  a  portion  of  which  is  omitted. 


154  ACTIONS 

in  this  state,  with  the  action  i)f  ejectment  at  common  law,  and  as  a 
consequence  embarrass  ourselves  by  attempting;'  to  apply  the  rules 
of  law  peculiar  to  the  latter  action  to  the  former.  Technically,  and 
substantially,  we  ha\e  no  action  of  ejectment.  The  forms  constitute 
the  substance  of  that  action  at  common  law  .  True,  i)ractically,  the 
possession  of  the  land  was  recovered.  Hut  this  was  equally  true  of 
the  writ  of  entry,  and  an  assize.  All  these  were  possessory  actions 
merely.  And  there  would  be  just  as  much  ])ropriety  in  calling  our 
action  to  recover  the  possession  of  land  a  w  rit  of  entry,  or  an  assize, 
as  an  ejectment.  The  pleadings  are  more  nearly  assimilated  to  the 
pleadings  in  a  writ  of  entry,  or  an  assize,  than  to  the  i)leadings  in 
an  action  of  ejectment.  In  theory,  the  writ  of  entry,  and  the  assize, 
were  actions  to  recover  the  freehold;  while  ejectment  was  an  action 
to  recover  the  term  of  the  tenant — a  mere  chattel  interest.  But,  in 
our  state,  an  action  is  rarely  brought  by  a  tenant,  either  in  substance 
or  form,  to  recover  his  term.  Practically,  the  possession  of  the 
land,  and  nothing  more,  was  recovered  at  common  law  in  each  of 
the  actions  named.     *     *     * 

.Says  Mr.  Blackstone :  "As  a  writ  of  entry  is  a  real  action  which 
disi)roves  the  title  of  the  tenant  by  showing  the  unlawful  com- 
mencement of  his  i)ossession,  so  an  assize  is  a  real  action  which 
proves  the  title  of  the  demandant  merely  by  show'ing  his  or  his  an- 
cestors' possession ;  and  these  two  remedies  are,  in  all  otlier  respects, 
so  totally  alike  that  a  judgment  or  recovery  in  one  is  a  bar  against 
the  other;  so  that  when  a  man's  possession  is  once  established  by 
either  of  these  possessory  actions,  it  can  never  be  disturbed  by  the 
same  antagonist  in  any  other  of  them."'^ 

"Actions  of  ejectment  have  succeeded  to  those  real  actions 
called  possessory  actions ;  but  an  inconvenience  was  found  to  result 
from  them  which  did  not  follow  from  real  actions,  to  which  it  has 
been  found  necessary  to  apply  a  remedy.  Real  actions  could  not  be 
brought  twice  for  the  same  thing;  but  a  person  might  bring  as  many 
ejectments  as  he  pleased,  which  rendered  the  rights  of  parties  sub- 
ject to  endless  litigation."''' 

The  inconclusiveness  of  the  judgment  resulting  from  the  form 
of  proceeding  was  admitted  to  be  an  inconvenience,  and  the  neces- 
sary remedy  for  it,  referred  to  by  Mr.  Archibold,  was,  an  injunction, 
which  was  at  length  granted,  after  tw'o  or  more  trials.-'"  In  these 
real  actions,  then,  we  may  say,  with  at  least  as  much  propriety  as 
the  respondent's  counsel  says  of  the  action  of  ejectment,  "the  object 
is  the  recovery  of  possession;  the  subject-matter  to  be  tried  is  the 
right  of  possession  as  between  ])laintiff  and  defendant;  that  is  the 
extent  of  the  issue." 


''Ill  Blackstone's  Commentaries,  185. 

'"  Arclibold's  Note  to  III  Blackstone's  Commentaries,  206. 

'"Earl  of  Bath  v.  Slicni.'in,  4  Brown's  Cases  in  Parliament,  ^^7^,  (1700)  ; 
Barefoot  v.  Fry,  Bnrnb.  158  (1723)  ;  LeigJiton  v.  Leighton,  i  Peere  Wms.  671 
(1720).  In  CJieery_x^_R()bwson/j  Yeates  (Pa.)  521  (1795),  after  tlie  fonrtli 
verdict,  the  court  said  tliat  any  further  proceedings  would  be  regarded  as 
vexatious  and  would  be  stayed.  There  was  no  jurisdiction  at  that  time  to 
grant  an  injunction. 


CAPKRTOX  Z\    SCHMIDT  155 

It  is  manifest,  therefore,  that  the  reason  that  one  recovery  in 
ejectment  at  common  law  was  not  a  bar  to  a  second  ejectment  be- 
tween the  same  parties  for  the  same  land,  was  not  because  the  sub- 
ject matter  to  be  tried  was  the  right  of  present  possession;  for  this 
reason  wpuld  apply  with  equal  force  to  the  actions  we  have  just  con- 
sidered, in  which  a  former  recovery  was  a  bar.  But  the  reason  is 
found  in  the  very  framework  and  essential  qualities  of  the  action, 
which  rendered  the  rules  of  law  laid  down  at  the  commencement  of 
this  opinion  inapplicable.  The  character  of  the  proceeding  is  well 
known.  Originally,  the  party  who  desired  to  recover  the  possession 
of  land  in  this  action  entered  upon  the  land,  and  there  executed  a 
lease  to  some  friend,  and  left  him  in  actual  possession,  where  he 
remained  till  some  other  friend  (called  the  casual  ejector),  or  the 
prior  tenant,  came  and  .turned  him  out.  For  this  injury  the  tenant 
brought  his  action  against  the  party  who  ousted  him.  If  the  party 
ousting  him  was  a  stranger,  he  was  bound,  vmder  a  rule  of  court, 
to  give  notice  to  the  tenant  in  possession  that  he  had  been  sued  and 
should  make  no  defense,  and  that  unless  the  tenant  in  possession 
should  defend  he  would  be  turned  out.  This  served  as  process  to 
the  tenant  in  ])ossession,  who  then  appeared  and  defended  by  per- 
mission of  the  court,  and  became  the  real  defendant  in  the  suit.  The 
plaintiff  did  not  allege  title  in  his  declaration.  He  simply  alleged  that 
his  lessor,  on  a  day  named,  demised  to  him-  the  premises  in  question, 
to  hold  for  a  specified  term  then  next  ensuing;  that  by  virtue  of  said 
demise  he  entered  into  said  premises  and  became  and  was  thereof 
possessed  for  the  said  term ;  that  being  so  possessed  the  defendant,  at 
a  time  specified,  and  before  the  expiration  of  his  term,  with  force  and 
arms,  entered  and  ejected  him.  Subsequently  a  change  was  made  by 
the  courts,  after  which  the  plaintiff  and  casual  ejector  were  fictitious 
persons.  The  tenant  in  possession,  as  a  condition  of  being  allowed 
to  appear  and  defend,  was  required  to  enter  into  what  was  called  the 
consent  rule,  whereby  he  agreed  to  confess  the  lease,  entry  and  ouster, 
and  to  plead  not  guilty.-^  This  obviated  the  necessity  of  proof  on 
the  points  admitted,  and  left  the  parties  at  the  trial  at  that  stage 
of  the  proceedings  in  which  they  would  have  been  after  proving 

"^  This  practice  was  established  in  the  time  of  Lord  Chief  Justice  Rolle, 
who  presided  in  the  court  of  the  Upper  Bench  during  the  Protectorate.    Style 

368  (1652)  ; V.  Daz'ics,  i  Keble  28  (1661).   The  practice  was  reprobated 

because  it  was  thought  that  it  provided  no  responsibility  for  costs  in  case  the 
defendant  succeeded.  But  this  objection  was  obviated  by  making  it  part  of 
the  consent  rule  that  the  lessor  of  the  plaintiff  would  pay  costs.  Chitty's 
note  to  Til  Blackstone's  Commentaries,  203  ;  Den  v.  Wilson,  5  N.  J.  L.  680(1819)  . 
See  also  / L^lson  \._CjUl'pl^i'll_.  i  l^:il].  (Pa.)  126  (1785)  ;  Jackson  v.  Dciuiiston. 
4  Johns.  (  NTTTTJi  I  (1B09 )  ;  Hillard  v.  Connelly,  7  Ga.  172  (184Q)  ;  flitd- 
dlcston  V.  Hughletl,  i  Humph.  (Tenn.)  64  (1839);  Atzvell  v.  McLiirc,  49 
N.  Car.  371  (1857).  The  form  of  summons  prescribed  by  the  Pennsylvania 
Act  of  March  21,  1806,  4  Smith's  Laws  of  Pennsylvania,  326,  §  12,  dispensed 
with  fictitious  parties.  In  New  Jersey  the  consent  rule  and  all  fictions  in 
ejectment  were  abolished  in  1855,  General  Statutes  of  New  Jersey,  p.  1282. 
The  common-law  forms  survive  in  a  few  jurisdictions.  Doe  v.  McCullonqh, 
155  Ala.  246  (1908);  Doe  dent.  Dockstnder  v.  Roe,  4  Pennew.  (Del.)  398 
(1903)  ;  Nevin  v.  Dcsharoon,  6  Pennew.  (Del.)  278  (1907),  at  p.  282;  Doe  v 
7?or.  26  Del.  78  (1911). 


156  ACTIONS 

lease,  entry  and  ouster.  But  the  form -of  the  declaration  continued 
to  be  the  same.  I'pon  protif  of  tiic  facts  alleged,  as  the  action  orig- 
inally stood,  or  upon  their  admission  under  the  modified  forms  of 
proceeding,  without  proving  any  title  in  the  landlord,  if  the  defend- 
ant should  introduce  no  testimony  whatever,  the  plaintijT  would 
I>robably  be  entitled  to  recover.  He  certainly  would  upon  the  face  of 
the  record,  whatever  the  practice  might  have  been  under  the  almost 
unlimited  control  exercised  over  the  action  by  the  judge  who  intro- 
duced it,  and  his  successors.  And  he  certainly  would  at  this  day 
in  this  state,  on  such  a  complaint,  and  j)roof  of  the  facts  alleged, 
with  no  counter  proof.--  But  it  would  not  be  safe  for  the  plaintiff 
to  rest  on  such  proof  or  admissions;  for  the  defendant  would  un- 
doubtedly introduce  testimony  to  rebut  his  prima  facie  case ;  hence 
it  was  necessary  for  the  plaintiff  to  show  title  in  his  lessor,  notwith- 
standing none  was  directly  alleged ;  and  the  title,  tliough  not  directly 
in  issue,  thus  became  the  real  question  and  the  only  question  liti- 
gated. But,  as  there  was  no  averment  of  title,  and  no  issue  directly 
taken  upon  it,  the  title  was  only  collaterally  or  incidentally  litigated. 
It  became  "a  fact  in  controversy,"  as  distinct  from  "a  fact  in  issue." 
■Mr.  Blackstone,  after  stating  the  mode  of  proceeding  says :  "This 
is  the  regular  method  of  bringing  an  action  of  ejectment,  in  which 
the  title  of  the  lessor  comes  collaterally  and  incidentally  before  the 
court  in  order  to  show  the  injury  done  to  the  lessee  by  this  ouster." 
*  *  *  "Such  is  the  modern  way  of  obliquely  bringing  in  question 
the  title  to  lands  and  tenements,  in  order  to  try  it  in  this  collateral 
manner."-^  But  we  have  seen,  that  the  rule  in  all  cases  requires  that 
the  matter  tried  must  be  directly,  and  not  merely  collaterally  in  issue, 
in  order  that  the  judgment  shall  be  a  bar.  And  in  an  action  of  eject- 
ment at  common  law  the  title  is  not  directly  in  issue ;  hence  the  judg- 
ment under  the  rule  was  not  a  bar,  nor  could  the  determination  of 
the  title  be  used  as  a  matter  of  estoppel. 


"At  the  common-law  judgment  for  default  of  appearance  or  plea  was 
entered  against  the  casual  ejector  not  the  tenant.  Doc  v.  Roe,  i  Dowl.  & 
Ry.  514  (1822)  ;  Gardiner  v.  Murray,  4  Yeates  (Pa.)  560  (1808)  ;  Jackson  v. 
Visclier,  2  Johns. 7 •^-  V.)  lOO  (l«oo);  IVilliams  v.  Doc,  i  Sm.  &  Mar.  (Miss.) 
559  (1844)  ;  Cttslm-a  v.  Cushzva,  g  Gill  (Md.)  242  (1850).  Now  judgment  by 
defauh  may  be  obtained  against  tlie  real  party  by  complying  with  the  par- 
ticular statutory-  prerequisites  of  the  jurisdiction.  Bolard  v.  Masmi.  66  Pa. 
138  (1870)  ;  l^orcns  v.  Berry,  207  Pa.  296  (1904)  ;  Sheridan  v.  Andrews,  49 
N.  Y.  478  (1872)  ;  Svntlison  v.  Briggs,  33  Gratt.  (Va.)  180  (1880).  If  the 
case  goes  to  trial  and  the  defendant  gives  no  evidence,  but  relies  on  the  weak- 
ness of  plaintiff's  title,  the  court  may  direct  a  verdict.  Foust  v.  Ross,  i  Watts 
&  S.  (Pa.)  501  (1841)  ;  Anderson  v.  McCorr.nck,  129  111.  308  (1889).  A  judg- 
ment in  ejectment  against  a  tenant  is  not  binding  upon  the  landlord,  as  to  the 
title,  if  he  was  not  made  a  party  to  the  action  and  did  not  appear  therein. 
Eldrcd  v.  Johnson,  75  Ark.  i  (1905).  After  judgment  for  the  plaintiff,  whether 
against  casual  ejector  or  tenant,  a  w-rit  of  habere  facias  posscssiono'i  issued 
at  the  common  law.  Under  the  modern  English  practice,  where  one  is  sued 
who  is  not  in  possession  and  judgment  obtained  by  a  default,  an  actual 
tenant  without  notice,  claiming  the  land  through  a  different  source,  who  is 
ejected,  may  have  the  judgment  and  subsequent  proceedings  set  aside  upon 
electing  to  appear  and  defend.    Minet  v.  Johnson,  63  L.  T.  (N.  S.)  507  (1890). 

^III  Blackstone's  Commentaries,  pp.  202,  205;  Aflin  v.  Parkin,  2  Burr. 
665   (1758). 


CAPERTOX  r.    SCHMIDT  157 

"In  ejectment  the  unsuccessful  party  may  re-try  the  same  ques- 
tion (that  is  the  title),  as  often  as  he  pleases  without  leave  of  the 
court,  for  by  making  a  fresh  demise  to  another  nominal  character  it 
becomes  the  action  of  a  new  plaintiff  upon  another  right."     *     *     * 

This  is  the  reason  given  in  the  books.  By  a  new  demise  a  dif- 
ferent term  is  created,  a  new  possession  and  ouster  alleged,  and  the 
matters  directly  alleged  are  different  from  those  directly  alleged  in 
the  former  suit.  The  recovery  alone,  therefore,  could  not  be  a  bar, 
as  a  different  term  was  recovered.  And  the  determination  of  the  title 
was  not  available  as  matter  of  estoppel,  because  it  was  not  directly 
in  issue.  And  thus  the  title— the  "fact  in  controversy,"  bift  not 
"directly  in  issue" — might  be  again  and  again  "collaterally  and  in- 
cidentally" tried.  The  judgment  is  not  conclusive  upon  the  title  till 
it  has  been  "directly"  put  in  issue,  and  determined.-*    *    *    * 

In  several  of  the  states,  as  in  New  York  and  Illinois,  there  are 
special  statutes  regulating  actions  for  the  recovery  of  real  estate.--'' 
In  such  cases,  the  forms  of  the  common-law  action  of  ejectment  are 
generally  abolished,  and  another  form  substituted,  and — what  would 
naturally  be  expected,  as  a  consequence  of  the  change  of  the  form  in 
the  action — the  effect  of  the  judgment  is  also  modified,  regulated  and 
prescribed.  Sometimes  one  new  trial  in  the  same  action  is  granted, 
as  a  matter  of  right,  and  another  upon  a  proper  showing,  in  the  dis- 
cretion of  the  judge.  But  when  finally  determined  in  that  action,  it 
is  made  conclusive.  The  statutory  form  of  a  declaration  in  New  York 
does  not  even  allege  title.  It  only  alleges  a  possession  by  plaintiff 
and  an  ouster  by  defendant.  Yet  the  judgment  is  made  conclusive. 
A  second  trial,  if  any  be  had,  must  be  in  the  same  action.-*'    *    *    * 

If  a  party  declares  upon  a  seisin  in  fee,  and  tlaus  puts  his  title 
in  issue,  and  chooses  to  rely  upon  a  prior  possession  merely,  or  does 
not  choose  to  put  in  all  his  evidence  of  title,  or  is  unable  from  any 
accident  to  get  it  in,  he  is  in  no  worse  position  than  many  other 


-'Jackson  V.  Dicffendorf,  3  Tohns.  (N.  Y.)  268  (1808)  ;  Baileyjv^  Fair- 
play^  Binn.  (Pa.)  450  (1814)  ;  Haii'kins  v.  Hayes,  3  Harr.  (061X489  (1842)  ; 
Kwimel  V.  Bcnna,  70  Mo.  52  (1879).  The  modern  tendency  is  strongly  m 
favor  of  holding  the  judgment  in  ejectment  conclusive,  as  in  other  actions, 
when  the  issue  is  made  in  the  names  of  the  real  parties  and  the  titles  and 
defenses  are  the  same  as  in  the  first  suit.  Miles  v.  Caldzvell,  69  U.  S.  35 
(1864);  Sturdv  V.  Jackson,  71  U.  S.  174  (1866);  Barger  v.  Jlobbs,  67  111. 
592  (1873)  ;  Doyle  v.  Hallam,  21  Minn.  515  (1875)  ;  Freeman  on  Judgments 
(4th  ed.),  §  299. 

"•  Starr  &  Curtis's  Ann.  Stat,  of  111.,  Vol.  2,  p.  1607,  et  scq.;  Aetna  L.  Ins. 
Co.  V.  Hoppin,  255  111.  115  (1912).  See  also  California  Code  of  Civ.  Proc, 
§  738,  et  scq.;  General  Code  of  Ohio  (1910),  §  11901,  et  seq.  The  provision 
of  the  N.Y.  Code  Civ.  Proc,  §  1525,  for  a  new  trial  as  of  right  within  three 
years  is  repealed  by  the  Act  of  191 1,  ch.  509,  2  Session  Laws  191 1,  p.  1 166. 
K,  In  Pennsylvania  the  Act  of  April  13,  1807,  4  Smith's  Laws,  476,  §  4, 
provided  that  two  verdicts  in  succession  for  the  same  party,  for  the  same 
land  and  on  the  same  title  should  he  a  bar.  l')rcxcl  v.  Man.  2  Pa.  267  (1845)  ; 
Tr caster  v.  Flcishcr.  7  W.  &  S.  (Pa.)  137  (1S44).  The  Act  of  May  8,  1901, 
P.  L.  142,  makes  one  verdict  and  judgment  conclusive.  Necld  Y.^Cunning^ 
hain,  216  Pa.  523  (1907)  ;  Lr^^/^v.  Lynch.  221  Pa.  423  (1908T 

■'Evans  v.  Millard,  16  N7"^~5i9(i858r;  Harris  v.  IVaite,  54  How.  Pr.  (N. 
Y.)  113  (1877)  ;  Set, "Ice  v.  Sctzke,  121  111.  30  (1887)  ;  Cook  County  v.  Calumet, 
etc.,  Co.,  131  111.  505  (1890). 


15i^  ACTIONS 

l)anics,  wlio  for  any  reason  fail  in  iK'isonal  action  to  get  in  suffi- 
cient, or  all  their  evidence.  I'liulcnt  counsel,  where,  from  any  un- 
forscen  accident  they  fail  to  make  as  strong  a  case  as  the  facts  and 
evidence  attainable  should  enable  them  to  do,  and  they  are  not 
satislied  of  the  sufficiency  of  tlieir  proofs,  will  sul)mit  to  a  nonsuit, 
or  in  a  proper  case,  with  the  permission  of  the  court,  withdraw  a 
juror  and  liegin  again.  If  they  do  not,  they  can  not  com])lain  that 
the  iiulgnnent  against  them  in  the  action  should  be  followed  by  its 
legitimate  consequences. 

In  order  that  we  may  not  be  misapjjrehended,  we  will  add,  that 
the  e'stoppel  of  a  verdict  and  judgment  is  necessarily  limited  to  the 
rights  of  the  ])arties  as  they  exist  at  the  time  when  such  verdict  and 
judgment  are  rendered,  and  can  not  i^reclude  either  party  from 
showing  that  their  rights  have  been  varied  or  extinguished  at  a  sub- 
sequent period.   No  injury,  therefore,  can  result  on  that  ground. 

In  this  case  the  record  offered  in  evidence,  and  excluded  by  the 
court,  shows,  that  in  the  former  suit,  the  title  was  distinctly  put  in 
issue  and  determined  (the  possession  of  an  undivided  half  was 
admitted  by  the  answer)  ;  that  the  undivided  forty-one  eighty-first 
parts  Avas  found  and  adjudged  to  be  in  the  ])laintiffs — and  forty 
eighty-first  parts  in  the  defendant;  that  the  same  title,  and  the  same 
ouster,  were  relied  on  in  this  action — for  the  plaintiff's  proved  that 
the  defendant's  possession  extended  as  far  back  as  1857  before  the 
conunencement  of  the  former  action,  and  no  evidence  of  title  ac- 
{[uired  since  the  former  suit  was  offered.  The  court,  therefore, 
erred  in  refusing  to  admit  the  record  in  e\idence,  and  the  judgment 
must  be  rexerscd.-' 


■'At  tlic  early  law  ejectment  was  an  action  for  the  recovery  of  damages, 
hut  when  the  proceedings  became  fictitious  and  the  parties  nominal,  the  dam- 
apes  became  nominal  also.  Hence  for  the  injury  due  to  loss  of  possession  a 
further  remedy  became  necessary  and  this  was  found  in  an  action  of  tres- 
pass vi  ct  annis,  generally  termed  an  action  for  mesne  profits.  Sedgwick  on 
Damages  (8th  ed"),  ch.  30;  Goodtitle  v.  Tombs,  3  Wils.  C.  P.  118  (1770); 
GUI  v.  Patten,  i  Cranch  (U.  S.)  465  (1807)  ;  Davis  v.  Doc  dem.  Delpit,2^  Miss. 
445  (1853)  ;  Oshonrn  v.  Osbouru,  11  S.  &  R.  (Pa.)  55  (1824).  "The  action 
for  mesne  profits  difiFers  from  an'action  for  use  and  occupation,  in  this,  that 
the  latter  is  founded  upon  a  promise,  express  or  implied,  while  the  former 
springs  from  a  trespass,  an  entrj-  vi  et  annis  upon  premises,  and  a  tortious 
holding."  Thorn t^son  v.  Bon'cr,  60  Barb.  463  (1871)  ;  Avcnt  v.  Hord,  3  Head 
(Tenn.)  458  (1859)  :  Brandmeicr  v.  Pond  Creek  Co..22q  Pa.  280  (1910).  In  New 
Jersey  and  Pennsylvania  a  recovery  of  ))iesne  profits  was  permitted  in  the  ac- 
tion of  ejectment  provided  notice  of  tlie  claim  had  previously  been  given.  Den 
v.  Cliiihb.  I  X.  T.  L.  466  (i7gs)  ;  Kline  v.  IVilliams,  60  N.  J.  L.  17  (1903); 
fioyd  v.  Cowan,  4  Dall.  (Pa.)  138  (1794)  ;  Cook  v.  Niclwlax,  2  W.  &  S.  (Pa.) 
27  (1841).  And  now,  under  modern  statutes  and  codes,  the  plaintiff  is  usually 
allowed  to  unite  in  the  same  complaint  claifns  to  recover  real  property  and 
for  damages  for  the  withholding  thereof.  Vandervorl  v.  Gould,  36  N.  Y.  639 
(1867)  ;  Wallace  v.  Bcrdell,  loi  N.  Y.  13  (1885)  ;  Provident  I.  S.  v.  Burnliam, 
128  Mass.  458  (1880)  ;  Lippett  v.  Kelly,  46  Vt.  516  (1874)  ;  Methodist  Church 
V.  Xorthern  P.  R.  Co.,  78  Wis.  131  (1890)  ;  Scott  v.  Colson,  156  Ala.  450 
(1908)  ;  Cape  Jirardean,  etc.,  Co.  v.  .9/.  Louis,  etc.,  Co.,  222  Mo.  461  (1909)  ; 
Whitehead  v.  Callahan,  44  Colo.  396  (1908).  Otherwise  in  R.  I.,  Rinfret  v. 
Morrisey,  20  R.  I.  223   (1908). 

In  a  subsef|uent  action  for  the  recovery  of  mesne  profits  the  record  of 
the  judgment   in   ejectment   is,   between   the  parties,   conclusive  as   to   plain- 


BUTLER  r.    FRONTIER  TEL.    CO.  I59 


BUTLER  z:  FRONTIER  TELEPHONE  COMPANY. 

Court  oi"  Appeals  of  New  York,  1906. 
186  A^  Y.  486. 


^ 


Appeal  from  a  judgment  of  the  Aj)])ellate  Division  of  the  Su- 
])reme  Court  in  tlie  fourth  judicial  department,  entered  December 
6,  1905,  affirming  a  judgment  in  favor  of  plaintiff  entered  upon  a 
decision  of  the  court  at  a  trial  term  without  a  jury. 

This  is  an  action  of  ejectment,  which  was  tried  by  consent  be- 
fore the  court  without  a  jury.  The  trial  judge  found  as  facts  that 
"the  defendant  on  or  about  January  i,  1903,  without  the  consent  of 
the  plaintiff  and  without  lawful  authority,  entered  upon"  his  prem- 
ises in  the  city  of  Buffalo  "and  stretched  a  wire  over  and  across 
the  same  in  the  manner  described  in  the  complaint  and  maintained 
said  wire  upon  said  premises  until  January  10,  1903,  when  the 
defendant  removed  the  said  wire  entirely  from  plaintiff's  said 
premises." 

According  to  the  allegations  of  the  complaint  the  wire  was 
strung  "about  thirty  feet  from  the  surface  of  the  ground  on  the 
easterly  side  and  slanting  to  about  twenty  feet  on  the  westerly  side," 
reached  "across  the  entire  width  of  said  premises." 

The  trial  judge  further  found  that  "the  plaintiff  has  been  in  pos- 
session of  the  premises  described  in  the  complaint  at  all  times  men- 
tioned therein  and  since,  except  that  portion  thereof  occupied  by  the 
defendant  with  said  wire  during  the  period  specified."  The  damages 
sustained  by  the  plaintiff  were  assessed  at  six  cents  for  "the  with- 
holding by  the  defendant  of  that  portion  of  the  premises  occupied 
Ijy  said  w4re  for  the  period  above  specified."  There  was  neither  alle- 
gation nor  evidence  that  the  wire  was  supported  by  any  structure 
standing  upon  the  plaintiff's  lot.  The  action  was  commenced  on  the 
5th  of  January,  1903. 

The  court  found  as  a  conclusion  of  law  that  the  plaintiff",  as  the 
owner  in  fee  of  the  ])remises  in  question,  "was  entitled  at  the 
commencement  of  this  action  to  have  said  wire  removed  from  said 
j)remises,  and  is  entitled  to  judgment  against  the  defendant  so  de- 
claring, and  for  six  cents  damages  for  withholding  said  property 
and  for  the  costs  of  this  action." 

The  judgment  entered  accordingly  was  affirmed  on  appeal  to  the 
appellate  division  by  a  divided  vote,  and  the  defendant  now  comes 
here.-^ 


tiff's  title  and  right  of  possession  between  demise  and  execution  on  the  judg- 
ment. West  V.  Hughes,  i  H.  &  J.  (Md.)  574  (1805)  ;  Benson  v.  Matsdorf,  2 
Johns.  (N.  Y.)  369  (1807)  ;  Buntin  v.  Duchanc,  i  Blackf.  (Ind.)  56  (1820)  ; 
Al'Creadyjy.  Guardiaiisof  Poor,  9  S.  &  R.  (Pa.)  04  (1822)  ;  Chirac  v.  Rein- 
VcTier,  II  Wlieat.  (UrST)  280  (!H26)  ;  Den  v.  McShane,  13  N.  J.  L.  35  (1831). 
But  it  is  not  conchisive  as  to  plaintiff's  rights  prior  to  the  commencement 
of  the  suit.  Avent  v,  hlord,  3  Head  (Tenn.)  458  (1859)  ;  Kille  v.  Ege,  82  Pa. 
102  (1876)  ;  Miller  v.  Henrx,  84  Pa.  33  (1877).  ' 

""*  The  arguments  of  counsel  are  omitted.    The  decision  affirms  109  App. 
Div.  (N.  Y.)  217  (1905). 


l6o  ACTIONS 

A'anx.  j.:  The  (juostion  presented  by  llils  ai>i)i-'al  is  whether 
ciectiiicnt  will  lie  when  the  soil  is  not  touched,  hut  [)art  of  the  space 
jr  f C^v  "fcmsT^oVe  flic  soil  is  occupied  by  a  telephone  wire  unlawfully 
struni;  by  the  defendant  across  the  ])laintiflf's  i)remises?  This  cjues- 
tion  has  never  been  ])assed  ui)on  by  the  Court  of  Appeals  nor  by  the 
Sujirenie  Court,  except  in  the  decision  now  before  us  for  review. 
Questions  similar  but  not  identical,  as  they  related  to  overhanging 
eaves,  projecting  cornices  or  leaning  walls,  were  decided  in  favor  of 
the  ilefendant  in  .liken  v.  Benedict  (39  Barb.  400),  and  Vrooman 
V.  Jackson  (6  Hun  326),  and  in  favor  of  the  plaintiff  in  SJierry  v. 
Freeking  (4  Duer.  452).  In  Leprell  v.  Kleinsclnnidt  (112  N.  Y. 
364)  the  question  as  to  the  effect  of  projecting  eaves  was  alluded  to 
but  not  decided,  because  there  was  in  that  case  "a  physical  entry  by 
the  defendant  upon  the  land  of  the  plaintiffs  and  an  unlawful  deten- 
tion of  its  possession  from  them." 

The  precise  c]uestion  before  us  does  not  a]')pear  to  have  been 
passed  upon  in  any  other  state,  and  u])on  the  cognate  question  re- 
lating to  projecting  cornices  and  the  like,  the  authorities  are  divided. 
Some  hold  that  ejectment  will  lie  because  there  is  an  actual  ouster 
or  disseisin.  (Murphy  v.  Bolger,  60  Vt.  723;  McCourt  v.  Eckstein, 
22  Wis.  153;  Stedman  v.  Smith,  92  Eng.  C.  L.  i.)-^  Others  hold 
that  there  is  not  such  a  disturbance  of  possession  as  to  sustain  an 
action  in  that  form.  (Norwalk  H.  &-  L.  Co.  v.  Vernam,  75  Conn. 
662;  Rasch  V.  North,  99  Wis.  285).-'"  The  case  last  cited  does  not 
overrule  the  earlier  case  in  Wisconsin,  but  proceeds  upon  the  the- 
ory that  the  aerial  space  was  occupied  by  the  projecting  eaves  of 
both  parties,  one  above  the  other,  on  opposite  sides  of  the  boundary 
line.  Some  of  the  cases  hold  that  a  court  of  equity  may  order  the 
removal  of  a  projection  without  deciding  whether  ejectment  will 
lie  or  not.  Thus,  in  Wilmarth  v.  Woodcock  (58  Mich.  482,  485)  it 
was  decided  that  equity  would  require  the  removal  of  a  projecting 
comice  because  "no  remedy  at  law^  is  adequate,  owing  to  the  un- 
certainty of  the  measure  of  damages,  to  afford  complete  compensa- 
tion." But,  as  the  learned  court  continued:  "No  person  can  be 
permitted  to  reach  out  and  apy)ropriate  the  property  of  another  and 
secure  to  himself  the  adverse  enjoyment  and  use  thereof,  which,  in 
a  few  years,  will  ripen  into  an  absolute  ownership  by  adverse  posses- 
sion."' (See,  also,  Plummer  v.  Gloversville  Electric  Co.,  20  App. 
Div.  527.) 


="  So  also  in  Joluisou  v.  Mitmcsoia  Tribune  Co.,  Qi  Minn.  476  (1904); 
Oiithivaite  v.  Gunn,  180  Mich.  66  (iqM)-  Where  one  erects  upon  his 
own  land  a  building  and  projects  the  foundation  beyond  the  line  upon  ad- 
joining land,  the  owner  of  such  land  may  maintain  ejectment.  Wachstein  v. 
Christopher,  12S  Ga.  917  (1907).  But  not  if  he  uses  the  foundation  himself. 
Zander  v.  Valentine  B.  B.  Co.,  95  Wis.  162  (1897). 

^"Harrington  v.  Port  Huron,  86  Mich.  46  (1891),  a  sewer  constructed 
through  plaintiff's  land.  As  to  wires  over  a  street,  see  IVadsivorth  Board  of 
Works  V.  United  Telephone  Co.,  L.  R.  (1884),  13  Q.  B.  Div.  904;  Telegraph 
Co.  x^WJlt^iVhU^.  (Pa.)  (1851)  ;  Milhille  Traction  Co.  v.  Goodivin,  53  N.  J. 
T^qr44Brn^).  Ejectment  was  held  not  to  lie  for  backing  water  on  adjoin- 
ing land.  Ezzard  v.  Tindley  G.  M.  Co.,  74  Ga.  520  (1885).  Contra:  Reynolds 
V.  Munch,  100  Minn.  114  (1907). 


BUTLER  v.    FRONTIER  TEL.   CO.  l6l 

While  some  of  the  cases  may  be  harmonized  by  resort  to  the 
distinction  between  "disseisins  in  spite  of  the  owner,  and  disseisins 
at  his  election,"  the  main  question  is  open,  and  must  be  determined 
upon  principle. 

The  defendant  concedes  that  the  plaintiff  has  a  remedy,  but  in-  j 
sists  that  il  is  an  action  for  trespass,  or  to  abate  a  nuisance,  while  the/ 
plaintiff  claims  that  ejectment  is  a  proper  remedy  and  one  of  especial/ 
value  as  it  entitles  him,  if  he  needs  it,  to  a  second  trial  as  a  matter 
of  right  and  to  costs,  even  if  he  recovers  less  than  fifty  dollars  dam- 
ages.   (Code  Civ.  Proc.  §§  1525'^^  3228.) 

An  action  of  ejectment,  according  to  the  code,  is  "an  action  to 
recover  the  immediate  possession  of  real  property."  (Code  Civ.  Pro. 
§  3343,  sub.  20.)  While  the  statute  to  some  extent  regulates  the  pro- 
cedure, it  did  not  create  the  action  and  for  the  principles  which  gov- 
ern it  resort  must  be  had  to  the  common  law^.  (Code  Civ.  Pro. 
§§  1496  to  1532;  Real  I'roperty  Law,  §§  i,  218;  2  R.  S.  303.) 

Without  entering  into  the  somewhat  involved  and  perplexing 
learning  upon  the  subject,  it  is  sufficient  to  say  that,  as  all  the  author- 
ities agree,  the  plaintiff  must  show  that  he  was  formely  in  possession, 
that  he  was  ousted  or  deprived  of  possession  and  that  he  has  a  right 
to  re-enter  and  take  possession.  It  is  admitted  by  the  pleadings  that 
when  the  wire  was  put  up  the  plaintiff  v^^as  in  possession  of  the  entire 
premises  and  that  he  was  entitled  to  the  immediate  possession  thereof 
as  owner  when  the  action  was  commenced.  The  serious  question  is 
whether  he  was  deprived  of  possession  to  the  extent  necessary  to 
authorize  ejectment.  While  ouster  is  essential  to  the  maintenance  of 
the  action,  it  need  not  be  entire  or  absolute,  for  it  is  sufficient  if  the 
defendant  is  in  partial  possession  of  the  premises  while  the  plaintiff 
is  in  possession  of  the  remainder.  (Sitllk'on  v.  Legraves,  2  Str.  Cases, 
695  ;  Doe  V.  Burt,  i  T.  R.  701 ;  Lady  Dacre's  Case,  i  Lev.  58 ;  Rozvan 
V.  Kelsey,  18  Barb.  484;  Otis  v.  Smith,  26  Mass.  293;  Gilliam  v. 
Bird,  8  Iredell  [Law],  280;  Reynolds  v.  Cook,  83  Va.  817;  Mc- 
Dozvell  v.  King.  4  Dana  [Ky.],  67;  Adams  on  Ejectment,  27;  New- 
ell on  Ejectment,  38;  Warvelle  on  Ejectment,  22).  Mines,  quarries, 
mineral  oil  and  an  upy)er  room  in  a  house  are  familiar  examples.'- 
Is  the  unauthorized  stringing  of  a  wire  by  one  person  over  the  land 
of  another  an  ouster  from  possession  to  the  extent  that  the  wire 
occupies  space  above  the  surface  as  claimed  by  the  plaintiff,  or  a 

"Repealed  bv  the  Act  of  191 1,  ch.  509,  2  Session  Laws  191 1,  p.  1166. 

''- White  V.  ll'hite,  16  N.  J.  L.  202  (1837):  Asheville  D.  S.  T.  v.  Astau, 
92  N.  Car.  578  (1885)  ;  Brady  v.  Kreuger,  8  S.  Dak.  464  (i8g6)  ;  Condict  v. 
firie  R.  Co.,  80  N.  J.  Eq.  519  (1912).  Compare:  Thorn  v.  Witson,  no  Ind. 
325  (1886).  As  to  fixtures,  compare:  Jackson  v.  May,  16  Johns.  (N.  Y.) 
184  (1819),  with  Stancel  v.  Calvert,  60  N.  Car.  104  (1863);  Hill  v.  Hill, 
43  Pa.  521  (1862).  Ejectment  may  Ije  maintained  for  the  recovery  of  a  mine. 
IVhiltinijliam  v.  Andrcivs,  4  Mod.  Rep  143  (1693)  ;  Grot::  v.  Lehigh  &  IV.  C. 
Co.,  I  Luzerne  Lepal  Reg.  53;  Kirk  v.  Matticr,  140  Mo.  23  (1897).  As  to  oil 
wells,  compare:  Karns  v.  Tanner.  66  Pa.  297  (1870),  with  Utiioii. Petroleum 
Co.  V.  BJij2MLj.\  C-"~'r  7-  y'='-  ^7^  ('1^72)  ;  Priddy  v.  Thompson,  204  Fed.  955 
'(1913).  Ejectment  will  lie  upon  a  right  to  quarry  and  remove  stone.  Rey- 
nolds V.  Cook,  83  Va.  817  (1887).  Contra:  Brozam  v.  Chadzvick,  7  Ir.  C.  L.  loi 
(1857). 

II — Civ.  Proc. 


l62  ACTIONS 

mere  trespass  or  interference  with  a  right  incidental  to  enjoyment  as 
claimed  bv  the  defendant?  Was  the  plaintiff  in  the  nndisturbed  pos- 
session of  his  land  when  a  portion  of  the  si)ace  above  it  was  occupied 
by  the  jiermancnt  structure  of  the  defendant,  however  small?  Was 
the  space  occupied  by  the  wire  part  of  the  land  in  the  eye  of  the  law  ? 
\Vhat  is  "real  property?"  What  does  the  term  include  so  far  as 
the  action  of  ejectment  is  concerned?  The  answer  to  these  ques- 
tions is  found  in  the  ancient  principle  of  law :  Cujus  est  solum,  ejus 
est  usque  ad  coeluni  et  ad  inferos.  The  surface  of  the  ground  is  a 
guide,  but  not  the  full  measure,  for  within  reasonable  limitations 
land  includes  not  only  the  surface  but  also  the  space  above  and  the 
part  beneath.  (Co.  Litt.  4a;  2  Blackstone's  Comm.  18;  3  Kent's 
Com.  [14th  ed.]  *40i.)  "Usque  ad  caelum"  is  the  upper  boundary, 
and  W'hile  this  may  not  be  taken  too  literally,  there  is  no  limitation 
witliin  tlie  bounds  of  any  structure  yet  erected  by  man.  So  far  as 
tlie  case  before  us  is  concerned,  the  plaintifif  as  the  owner  of  the  soil 
owned  upward  to  an  indefinite  extent.  He  owned  the  space  occu- 
pied by  the  wire  and  had  the  right  to  the  exclusive  possession  of 
that  space  which  was  not  personal  property,  but  a  part  of  his  land. 
According  to  fundamental  principles  and  within  the  limitation  men- 
tioned space  above  land  is  real  estate  the  same  as  the  land  itself.  The 
law  regards  the  empty  space  as  if  it  were  a  solid,  insej^arable  from 
the  soil,  and  protects  it  from  hostile  occupation  accordingly. 

If  the  w-ire  had  touched  the  surface  of  the  land  in  permanent  and 
exclusive  occupation,  it  is  conceded  that  the  plaintiff  would  have 
been  dispossed  pro  tanto.  A  part  of  his  premises  would  not  have 
been  in  his  possession,  but  in  the  possession  of  another.  The  extent 
of  the  disseisin,  however,  does  not  control,  for  an  owner  is  entitled 
to  the  absolute  and  undisturbed  possession  of  every  part  of  his 
premises,  including  the  space  above,  as  much  as  a  mine  beneath.  If 
the  wire  had  been  a  huge  cable,  several  inches  thick  and  but  a  foot 
above  the  ground,  there  would  have  been  a  difference  in  degree,  but 
not  in  principle.  Expand  the  wire  into  a  beam  supported  by  posts 
standing  upon  abutting  lots  without  touching  the  surface  of  plain- 
tiff's land,  and  the  difference  would  still  be  one  of  degree  only.  En- 
large the  beam  into  a  bridge,  and  yet  space  only  would  be  occupied. 
Erect  a  house  upon  the  bridge,  and  the  air  above  the  surface  of  the 
land  would  alone  be  disturbed.  Where  along  the  line  of  these  illus- 
trations would  dispossession  begin?  What  rule  has  the  law  to 
measure  it  by?  How  much  of  the  space  above  the  plaintiff's  land 
must  be  subject  to  the  dominion  of  the  defendant  in  order  to 
effect  a  dispossession?  To  what  extent  may  the  owner  be  dispos- 
sessed and  kept  out  of  his  own  before  there  is  a  privation  of  seisin? 
Unless  the  principle  of  usque  ad  coeliim  is  abandoned  any  jphysical, 
exclusive  and  permanent  occupation  of  space  above  land  is  an  occu- 
pation of  the  land  itself  and  a  diseisin  of  the  owner  to  that  extent. 

The  authorities,  both  ancient  and  modern,  with  some  exceptions 
not  now  important,  agree  that  the  ability  of  the  sheriff  to  deliver 
possession  is  a  test  of  the  right  to  maintain  an  action  of  ejectment. 
(Jackson  V.  Buel,  9  Johns,  298;  IVoodhull  v.  Rosenthal,  61  N.  Y. 
382,  389;  Patch  V.  Keeler,  27  Vt.  252,  255;  Warvelle  on  Ejectment, 


BUTLER  V.    FRONTIER  TEL.    CO.  163 

34;  Crabb  on  Real  Property,  710;  Butler's  Nisi  Prius,  99.)  "The 
rule  now  is,  that  when  the  property  is  tangible  and  an  entry  can  be 
made  and  possession  be  delivered  to  the  sheriff,  this  action  will  lie." 
(^Nichols  V.  Lewis,  15  Conn.  137.)  The  defendant  insists  that  the 
sheriff  can  not  give  possession  of  space  any  more  than  he  can  deliver 
water  in  a  running  stream  or  "air  whirled  by  the  north  wind." 
When  the  space  over  land  is  unoccupied  there  is  no  occasion  for 
delivery,  because  there  is  nothing  to  exclude  the  owner  from  posses- 
sion. The  sheriff",  however,  can  deliver  occupied  space  by  remov- 
ing the  occupying  structure.  All  that  he  does  to  deliver  possession 
of  the  surface  of  land,  or  of  a  mine  under  the  surface,  is  to  remove 
either  persons  or  things  which  keep  the  owner  out.  He  does  not 
carry  the  plaintiff  upon  the  land  and  thus  put  him  in  possession,  but 
he  simply  removes  obstructions  which  theretofore  had  prevented 
him  from  entering.  So,  in  this  case,  that  officer  can  deliver  posses- 
sion by  removing  the  wire,  the  same  as  he  would  if  one  end  hap- 
pened to  be  embedded  in  the  soil,  when  no  question  as  to  the  right 
to  bring  ejectment  could  arise.  Where  there  is  a  visible  and  tangible 
structure  by  which  possession  is  withheld  to  the  extent  of  the  space 
occupied  thereby  ejectment  will  lie,  because  there  is  a  disseisin 
measured  by  the  size  of  the  obstruction,  and  the  sheriff  can  physically 
remove  the  structure  and  thereby  restore  the  owner  to  possession. 

The  smallness  of  the  wire  in  question  does  not  affect  the  con- 
trolling principle,  for  it  was  large  enough  to  prevent  the  plaintiff 
from  building  to  a  reasonable  height  upon  his  lot.  The  prompt  re- 
moval of  the  wire  after  the  suit  was  brought  could  not  defeat  the 
action  because  the  rights  of  the  parties  to  an  action  at  law  are  gov- 
erned by  the  facts  as  they  existed  when  it  was  commenced.  {Wis- 
ner\.  Ocumpaiigli,  71  N.  Y.  113.) 

The  judgment  should  be  affirmed,  with  costs. ^^ 


'^  Compare  Kraiis  v.  Birnbanm,  200  N.  Y.  130  (1910)  where  the  removal 
of  boards  from  a  fence  on  the  disputed  ground  was  held  not  an  ouster. 

Ejectment  will  not  lie  for  mere  incorporeal  hereditaments  since  there 
can  be  no  seizin  thereof,  nor  ouster,  nor  can  the  sheriff  deliver  possession 
on  execution.  Den  v.  Craig,  15  N.  J.  L.  191  (1836)  ;  Black  v .  JjephliiMc ,  2 
Yeates  (Pa.)  331  (1798)  ;  Child  v.  Chappell,  9  N.  Y.  246X1^53).  A  grant  of 
the  exchisive  right  of  interment  in  a  cemetery  lot  subject  to  certain  regula- 
tions, is  not  an  interest  in  land  that  will  support  ejectment.  Hancock  v.  Mc- 
Avoy,_iSi  Pa.  460  (1892).  Ejectment  will  not  lie  for  the  interruption~or"5 
mere  easement  or  license.  Doc  v.  Cozvley,  i  Car.  &  P.  123  /1823)  ;  Wood  v. 
Truckee  T.  Co.,  24  Cal.  474  (1864)  ;  Provident  I.  S.  v.  Bnrnham,  128  Mass. 
458  (1880)  ;  Croker  v.  Fothcrgill,  2  B.  &  Aid.  652  (1819)  ;  Harlow  v.  Lake 
Superior  T.  Co.,  36  Mich.  105  (1877)  ;  Conover  v.  Atlantic  S.  Co.,  70  N.  J.  L. 
315,  57  Atl.  897  (1904);  Coquille  M.  Co.  v.  Johnson,  52  Ore.  547  (1910)  ; 
Chism  v.  Smith,  138  App.  Div.  (N.  Y.)  715  (1910)  ;  Menominee  R.  L.  Co.  v. 
Seidl,  149  Wis.  316  (1912).  But  otherwise  where  a  right  of  entry  exists  and 
the  interest  is  tangible  so  that  possession  can  be  delivered.  Winona  v.  Huff, 
II  Minn.  119  (1866);  Mahon  v.  San  Rafael  T.  Co.,  49  Cal.  269  (1874); 
Southern  Pacific  Co.  v.  Burr,  86  Cal.  279  (1890). 


? 


l6|  ACTIONS 

(b)   Forcible  Entry  and  Detainer. 

CARL  SCI  I  WINN  v.  RANDOLPH  PERKINS. 

Court  of  L^kkoks  .xnu  Aitkai-s  oi-  Ni:\v  Jersi-iv,  1910. 

70  .V.  y,  /,.  513."' 

Sw  Avzi:,  J.:  This  was  an  action  of  forcible  entry  and  detainer 
by  Schwinn  against  Perkins  in  tlic  I'irst  District  Court  of  Jersey 
City.  Prior  to  August,  1908,  Schwinn  was  in  possession  of  the 
main  front  room  on  the  first  floor  of  a  house  in  Jersey  City  under  a 
lease  from  Perkins  ending  November  i,  1908.  There  was  evidence 
that  on  September  3,  1908,  during  the  term,  one  Willits  was  in  the 
room  in  the  employ  of  the  plaintiff  as  caretaker  and  watchman.  The 
]ilaintiff  had  there  conducted  a  tailoring  business,  but  about  August 
i6tli  or  i8th  had  moved  to  New  York  all  his  stock  in  piece  goods 
and  most  of  the  things  necessary  to  do  business.  He  testified,  how- 
ever, that  he  had  left  part  of  his  property  used  for  trying  on  pur- 
poses in  the  premises ;  that  he  also  had  there  a  complete  set  of  fall 
samples ;  that  he  did  not  take  down  his  sign,  but  had  made  arrange- 
ments to  do  so,  intending  to  use  it  in  New  York.  On  September  3d 
Willits  was  forcibly  ejected  from  the  premises  by  the  defendant. 
The  evidence  of  force  was  sufficient  to  bring  the  case  within  the 
sfatute  relating  to  forcible  entries  and  detainers.  The  defendant 
sought  to  prove  that  he  had  had  possession  from  the  twenty-first  day 
of  August  under  an  agreement  for  surrender  of  the  term  between 
him  and  Schwinn,  and  he  offered  evidence  that  the  plaintiff  had  con- 
tracted to  have  his  sign  taken  down ;  that  another  person  was  in 
possession  of  the  premises ;  and  that  his  own  representatives  had 
been  in  possession  of  the  i)remises  in  August.  In  short,  he  offered 
evidence,  of  a  parol  surrender  of  the  lease_exec^uted  Jby  afi  actual 
possession.  MWler  v.  Denins,  68  N.  J.  L.  320,  p.  323,  53  Atl.  394. 
Tliis" evidence  was  rejected,  and  the  trial  judge  directed  a  verdict 
in  favor  of  the  plaintiff.  Judgment  was  entered  that  Schwinn,  the 
I)laintiff,  be  restored  to  the  possession  of  the  premises  specified  in 
his  complaint,  and  recover  treble  costs.  This  judgment  was  reversed 
by  the  Supreme  Court. 

The  only  c|westion  we  think  it  necessary  to  consider  is  whether  a 
parol  surrender  executed  by  an  actual  possession  would  constitute  a 
defense  in  an  action  of  forcible  entry  and  detainer.  The  peculiari- 
tlesTof  this  action  have  been  frequently  dwelt  ujion  by  the  courts, 
and  the  difficulties  have  arisen  out  of  the  seeming  injustice  of  a 
judgment  restoring  the  possession  of  property  to  one  not  rightfully 
entitled  thereto.'''     The  difficulties  are  well  illustrated  by  the  pro- 


"  Affirmins,'  77  X.  J.  L.  402  (1909). 

""Wliile  forcible  entry  and  detainer  as  a  civil  proceeding  is  based  upon 
and  has  by  modern  legislation  been  evolved  from  the  English  forcible  entry 
and  detainer  which  was  a  criminal  proceeding  merely,  yet  the  present  stat- 
utes often  contain  such  modifications  and  additions  as  to  make  it  impossible  to 
state  any  rules  or  principles  which  are  always  applicable.  Generally  speaking, 


SCinVINN  V.   PERKINS  165 

longed  litigation  in  Newton  v.  Harland,  i, Manning  and  Granger, 
644.  In  Harvey  v.  Brydges,  14  Meeson  &  Welsby,  437,  Baron 
Parke  said:  "If  it  were  necessary  to  decide  it,  I  should  have  no 
difficulty  in  saying  that  where  a  breach  of  the  peace  is  committed  by 
a  freeholder,  who,  in  order  to  get  into  possession  of  his  land,  assails 
a  person  wrongfully  holding  possession  of  it  against  his  will,  al- 
though the  freeholder  may  be  responsible  to  the  public  in  the  shape 
of  an  indictment  for  a  forcible  entry,  he  is  not  liable  to  the  other 
party.  I  can  not  see  how  it  is  possible  to  doubt  that  it  is  a  perfectly 
good  justification  to  say  that  the  plaintiff  was  in  possession  of  the 
land  against  the  will  of  the  defendant,  who  was  owner,  and  that  he 
entered  upon  it  accordingly ;  even  though,  in  so  doing,  a  breach  of 
the  peace  was  committed."  It  is  evident  that  his  view  was  that  in 
such  a  case  the  only  remedy  was  by  an  indictment  for  the  forcible 
entry  and  detainer,  and  that  a  civil  action  to  redress  the  private 
wrong  would  not  lie.  These  cases  were,  however,  actions  of  tres- 
pass, did  not  necessarily  involve  the  construction  of  the  forcible 
entry  and  detainer  act,  and  are  not  inconsistent  with  the  view  that 
one 'who  is  in  possession  and  wrongfully  evicted  by  force  may  be 
entitled  to  be  restored  to  the  possession  in  the  method  prescribed  by 
the  act.  Beddell  v.  Maitland,  17  Ch.  Div.  174,  was  a  case  of  forcible 
entry,  and  Mr.  Justice  Fry  distinctly  held  that  there  was  no  civil 
remedy  for  the  forcible  entry  alone,  unaccompanied  by  some  inde- 
pendent wrong.  Our  Supreme  Court,  however,  has  held  that  tres- 
pass can  be  maintained.  Thiel  v.  BulVs  Ferry  Land  Co.,  58  N.  J.  L. 
212,  33  Atl.  281.  Mr.  Pollock  says  (Pollock  on  Torts,  312)  :  "The 
correct  view  seems  to  be  that  the  possession  of  a  rightful  owner 
gained  by  forcible  entry  is  lawful  as  between  the  parties,  but  he 
shall  be  punished  for  the  breach  of  the  peace  by  losing  it,  besides 
making  a  fine  to  the  King."  The  opinion  as  to  the  right  of  the  party 
who  is  forcibly  dispossessed  to  bring  an  action  of  trespass,  expressed 
by  the  learned  chief  justice  in  Thiel  v.  Bull's  Ferry  Land  Co.,  was 
referred  to,  but  neither  approved  nor  disapproved,  by  this  court  in 
Mershon  v.  WiUiams,  62  N.  J.  L.  779,  at  pp.  784,  785,  42  Atl.  778. 
It  is  not  involved  in  the  present  case.  We  think  that  under  the  stat- 
ute, which  forbids  an  inquiry  info  the  estate  or  merits  of  the  title, 
the  plaintiff,  even  though  his  possession  may  be  wrongful,  is  entitled 
to  recover  possession  by  this  statutory  action,  v/here  he  is  ejected 
by  violence,  whether  he  is  or  is  not  entitled  to  sue  in  trespass  for 
damages.  It  is  essential,  however,  to  the  maintenance  of  the  action 
that  he  should  have  been  in  peaceable  possession.  The  old  forms 
of  indictment  for  forcible  entry  and  detainer  contained  that  allega- 

forcible  entry  and  detainer  is  a  remedy  for  the  protection  of  the  actual  posses- 
sion of  realtv,  wliether  rightful  or  wrongful,  against  forcible  invasion,  its  ob- 
jectbeing  to  prevent  disturbances  of  the  public  peace,  and  to  forbid  any  per^ 
son  righting  himself  by  his  own  hand  and  by  violence  ;  and  therefore  ordinarily/ 
the  only  matters  involved  are  the  possession  of  the  plaintiff  and  the  use  of\ 
force  bV  defendant."  19  Cyc.  1124  and  cases  there  cited.  See  also  Murry  v.L 
Burris,'6  Dak.  170  (1889)  ;  Fult.';  v.  Munro,  202  N.  Y.  34  (1911)  ;  Meier  v. 
Hilton,  257  111.  174  (1913).  For  Pennsylvania,  see  Act  of  March  31,  i86o,y 
P.  L.  382,  §§  21,  22,  P.  &  L.  Dig.  2329  and  notes,  also  under  the  Act 
of  1700,  Blythc  V.  IVright,  2  Ashmead  428  (1841). 


l66  ACTIONS 

tion.  3  Cliitty,  Criminal  Law  887.  888;  2  Rurns'  Justice,  220.  The 
rcporteil  cases  in  this  state  where  the  statutory  action  is  brought  by 
the  person  injured  sustain  the  same  view.  Mairs  v.  Sparks,  5  N.  J-  L- 
513  ;  Berry  v.  U'illianis,  21  N.  J.  L.  423,  at  p.  427 ;  FunkJiauser  v.  Col- 
loty,  6/  N.  J.  L.  132,  at  p.  i35,\50  Atl.  580.  The  pecuUar  section  of 
our  act  which  was  the  subject  of  discussion  in  Mason  v.  Powell,  38 
N.  ].  L.  576,  recognizes  the  necessity  of  possession,  and  the  language 
of  the  act  is:  "If  any  jierson  shall  enter  upon  or  into  any  lands, 
tenements,  or  other  possessions,"  the  judgment,  if  in  favor  of  the 
complainant,  is  followed  by  a  writ  of  restitution  directed  to  the 
sheritV  to  cause  the  complainant  to  be  reseised  or  jiossessed.^*'  i  Gen. 
St.  1598,  pi.  13. 

The  important  cjueslion  now  presented,  one  of  the  difficult  and 
imjwrtant  questions  of  the  law,  is :  What  constitutes  "possession"  ? 
The  learned  trial  judge  seems  to  have  thought  that  mere  occupancy 
was  possession  in  the  view  of  the  law — a  not  uncommon  confusion 
of  thought  to  which  the  Court  of  Appeals  of  New  York  called  at- 
tention in  Myc/att  v.  Coe,  142  N.  Y.  78,  36  N.  E.  870,  872,  24  L.  R.  A. 
850.  The  distinction  has  been  touched  upon  in  our  owm  cases. 
Corlies  v.  Corlies,  17  N.  J.  L.  167,  was  an  action  for  forcible  entry 
and  detainer.  Mr.  Justice  Dayton  in  dealing  with  the  averments 
of  the  complaint  said  that  the  complainant  must  have  had  actual 
possession  of  the  premises,  and  that  an  averment  that  he  and  his 
horses  and  w-agon  were  pushed  and  backed  off  the  premises,  when 
coupled  with  an  averment  of  seizin  in  fee  simple,  did  not  suffice, 
since  it  might  be  true  tliat  he  was  actually  on  the  premises,  but  was 
there  only  by  accident  or  as  a  visitor  or  trespasser.  That  mere  occu- 
pancy or  personal  presence  upon  the  ground  is  not  sufficient  to  con- 
stitute that  possession  which  the  law  clothes  with  legal  rights  is 
shown  by  a  few  illustrations.  There  may  be  possession  without  occu- 
pancy, as  where  a  man's  servant  is  in  the  actual  occupancy  of  the 
property  holding  possession  for  him,  or  where  a  man  has  temporarily 
gone  out  of  his  house,  leaving  no  one  in  charge,  but  still  having  legal 
possession ;  and  there  may  be  a  case  of  occupancy  without  posses- 
sion, as  where  in  a  man's  absence  a  mere  stranger,  visitor  or  tres- 
passer goes  into  his  house  without  claim  of  right.  In  Bacon's 
Abridgment,  under  the  head  of  "Forcible  Entry  and  Detainer"  (4 
Bacon's  Abridgment,  Amer.  ed.  328),  it  is  said:  "A  man  who  breaks 
open  the  doors  of  his  own  dwelling  or  of  a  castle  which  is  his  own 


"Judgment  in  forcible  entry  and  detainer  is  for  restitution  of  the  prem- 
ises sued  for.  Kerr  v.  Phillips,'  s  N.  J.  L.  818  (1820)  ;  Robinson  v.  Crnmcr, 
10  111.  218  (1848)  ;  Farzvell  v.  Boston,  63  Mo.  446  (1876)  ;  Stover  v.  Hazcl- 
hakcr,  42  Xebr.  393  (1894).  Damages  are  not  recoverable.  Minor  v.  Knoiules, 
I  Root  (Conn.)  142  (1789)  ;  Foe  v.  Bradley,  44  Ark.  300  (1884),  unless  al- 
lowed by  statute,  Rimmcr  v.  Blasingame,  94  Cal.  139  (1892)  ;  Lane  v.  Rithl. 
103  Mich.  38  (1894);  Bach.  v.  Ncu.\  23  App.  Div.  (N.  Y.)  548  (1897); 
Cole  V.  Eagle,  8  B.  &  C.  409  (1S28)  ;  Mairs  v.  Sparks,  5  N.  J.  L.  513  (1819). 
But  where  damages  can  not  be  recovered  against  the  rightful  owner  for 
forcible  entr>-,  they  may  be  recovered  for  any  independent  wrong  such  as 
injury  to  furniture.  Be'ddall  v.  Maitland,  L.  R.  (1881),  17  Ch.  Div.  174,  but 
see  Jones  v.  Foley,  L.  R.  (1891),  i  Q.  B.  Div.  730.  A  writ  of  restitution  on  a 
collusive  plea  of  guilty  will  be  set  aside.    Coinm.  v.  Griffin,  149  Pa.  176  (1892). 


SCIIWINN  Z'.   PERKINS  167 

inheritance,  but  forcibly  detained  from  him  by  one  who  claims  the 
bare  custody  of  it,  can  not  be  guilty  of  a  forcible  entry  or  detainer 
within  the  statute,"  and  Ex  parte  Shotzvell,  i  Ashm.  (Pa.)  140,  is 
quoted  as  authority  for  the  statement  that  the  possession  of  the 
prosecutor  must  be  quiet,  peaceable  and  actual,  not  a  mere  scram- 
bhng  possession.  Archbold  (2  Archbold's  Criminal  Pleading  331) 
cites  this  passage  as  the  law.  In  a  recent  philosophical  treatise 
(Pollock  &  Wright  on  Possession),  it  is  said  that  whether  legal 
possession  shall  follow  physical  possession  or  not  is  a  point  of  law ; 
and  that  whether  there  exists  at  the  date  in  question  between  a  given 
person  and  a  given  thing  the  relation  of  physical  possession  or  occu- 
pation is  wholly  or  mainly  a  matter  of  fact  (p.  10).  The  distinction 
thus  made  between  occupancy  or  physical  possession  and  legal  pos- 
session appears  very  clearly  when  the  case  is  presented  of  two  per- 
sons in  the  occupancy  of  the  same  property.  Littleton^'  says  that 
"If  A  be  seised  of  a  mese  (i.e.,  a  house  including  'buildings,  cur- 
tilage, orchard  and  garden,'  Co.  Litt.  56a),  and  F  that  no  right  hath 
to  enter  into  the  same  mese  claiming  the  said  mese  to  hold  to  him 
and  to  him  and  to  his  heirs  entereth  into  the  said  mese,  but  the  said 
A  is  tlien  continually  abiding  in  the  same  mese;  and  in  this  case  the 
possession  of  the  freehold  shall  be  always  adjudged  in  A  and  not  in 
F,  because  in  such  case  v/here  two  be  in  one  house  or  other  tenements 
and  the  one  clairaeth  by  one  title  and  the  other  by  another  title,  the 
law  shall  adjudge  him  in  possession  that  hath  right  to  have  the  pos- 
session of  tiie  same  tenements."  Bacon's  Abridgment  (4  Bacon's 
Abridgement,  327),  cites  Dalton :  "If  two  are  in  possession  of  a 
house,  and  the  one  enters  by  one  title  and  the  other  by  another,  he 
that  hath  the  right  shall  be  supposed  to  be  in  the  possession."  It  is 
said  in  Pollock  &  Wright,  p.  19:  "We  must  have  some  positive  rule 
to  meet  the  case  of  a  thing  which  is  the  object  of  dispute  and  so 
evenly  disputed  that  no  claimant  can  be  said  to  have  de  facto  pos- 
session rather  than  another.  It  might  conceivably  be  held  that  legal 
possession  is  in  suspense  as  well  as  the  physical  possession.  But 
the  common  law  does  not  so  hold ;  it  prefers,  in  the  absence  of  a  de- 
cisive state  of  fact,  to  make  legal  possession  follow  the  better  right." 
Although  the  authors  last  cited  were  not  dealing  with  cases  involving 
force,  the  citations  are  important  as  showing  the  difficulties  that 
arise  in  determining  the  question  of  actual  possession,  which  alone 
is  important  in  an  action  of  forcible  entry  and  detainer.  The  illus- 
trations last  given  are  quite  like  the  case  at  bar.  If  Perkins  had 
been  allowed  and  able  to  prove  what  he  offered  to  show,  he  would 
have  established  a  prior  possession  of  the  premises  in  dispute,  with 
the  acquiescence  of  Schwinn.  This,  as  the  Supreme  Court  said, 
did  not  involve  any  questioning  of  Schwinn's  title  or  estate,  but 
only  the  question  of  his  assent  to  Perkins'  actual  possession.  While 
Perkins  may  not  have  been  physically  present  in  the  premises  at  all 
hours,  if  he  had  taken  possession  in  execution  of  a  parol  surrender 
of  the  lease,  he  was  legally  in  possession  of  the  property,  and  there- 
after any  attempt  by  Schwinn  to  resume  possession  was  a  trespass. 

"  Co.  Litt.  368a. 


lU'^  ACTlllNS 

A  more  trespasser  may  be  forcibly  ejected  if  no  more  force  than  is 
necessary  for  the  jnirpose  is  used;  it  is  only  when  a  trespasser  has 
ceased  to  be  a  mere  trespasser  and  his  occujiancy  has  ripened  into 
a  possession,  althous^h  it  may  be  a  w  ronfj^ful  jxjssession  only,  that  the 
statute  relatinj^  to  forcible  entry  and  detainer  becomes  applicable. 
We  ajjree  with  the  statement  of  Pollock  that  a  mere  trespasser  does 
not  .s[ain  jiossession  until  there  has  been  something  like  acquiescense 
in  the  physical  fact  of  his  occupation  on  the  part  of  the  rightful 
owner.  Pollock  on  Torts,  312.  This  was' the  view  taken  by  Lord 
Denman  in  Brozvn  v.  Dazvsou,  12  Adolphus  &  Ellis,  624,  at  page  629, 
10  L.  T-  Q-  B.  7.  He  says:  "A  mere  trespasser  can  not,  by  the  very 
act  of  trespass,  immediately  and  without  excuse  give  himself  what 
the  law  understands  by  possession  against  the  person  whom  he 
ejects,  and  drive  him  to  produce  his  title,  if  he  can  without  delay  re- 
instate himself  in  his  former  possession."  The  use  of  the  word 
"former"  in  connection  with  possession  seems  to  be  inaccurate,  as 
the  possession  can  hardly  be  said  to  have  been  terminated  by  the 
act  of  trespass  if  the  trespasser  did  not  himself  gain  possession  by 
that  act  alone.  It  is  difficult  to  say  what  will  suffice  to  enlarge  a 
mere  occupation  into  a  legal  possession.  Some  light  is  thrown  upon 
the  subject  by  the  passage  from  Practon,  cjuoted  by  the  Supreme 
Court  of  Massachusetts  in  Page  v.  Dwiglit,  170  Mass.  29,  48  N.  E. 
850,  39  L.  R.  A.  418.  Bracton,  162b.  Bracton  is  dealing  with  a  case 
of  disseisin;  and  says :  "The  first  and  principal  remedy  is  of  this 
kind,  namely,  that  he  who  has  been  disseised  may  reject  the  spoiler 
of  his  own  strength  if  he  can,  or  by  strength  which  he  has  called  in 
or  recalled,  provided  no  interval  has  elapsed,  the  disseisin  or  mis- 
deed being  flagrant."  Bracton's  expression  as  translated,  "provided 
no  interval  has  ela])sed,"  hardly  differs  from  Lord  Denman's  expres- 
sion six  centuries  later,  "without  delay."  In  such  a  case  as  Mr. 
Justice  Barker  suggests  in  Pac/e  v.  Dxvight.  the  forcible  entry  and 
the  recapture  are  but  one  transaction,  and  the  recapture  is  not  a 
forcible  entry,  but  a  successful  and  proper  resistance  of  a  forcible 
entry ;  all  that  has  been  done  is  to  resist  successfully  a  wrongful  act. 
It  would  be  a  travesty  of  law,  if  a  man  could  enter  my  house  and  defy 
me  to  protect  my  own  possession  except  by  the  slow^  process  of  the 
courts ;  and,  if  I  am  in  possession,  it  can  make  no  difiference  whether 
the  trespasser  enters  by  force  or  by  stealth.  The  act  as  to  forcible 
entries  and  detainers  was  for  the  protection  of  those  who  already 
had  actual  and  peaceable  possession,  not  for  those  who  newly  ac- 
quired a  mere  foothold  by  force  or  by  stealth.  No  distinction  in  the 
two  methods  is  made  by  the  books,  and  in  Mason  v.  Powell,  38  N.  J. 
L.  576,  the  entry  which  was  held  to  be  a  forcible  entry  was  made  in 
the  absence  of  the  rightful  possessor  and.  w  ithout  any  breach  of  the 
peace.  These  views  are  in  harmony  with  the  expressions  of  our  own 
courts.  Mairs  v.  Sparks,  5  N.  J.  L.  513,  at  page  516,  and  Mercer eaii 
v.  Bergen,  15  N.  J.  L.  244,  at  page  247,  29  Am.  Dec.  684.  These  cases 
are  similar  to  the  present.  If  Perkins  took  possession  in  August  in 
execution  of  Schwinn's  surrender,  that  possession  was  in  him  still 
unless  Schwinn  had  in  some  way  acquired  a  new  possession;  and  the 
jury  might  have  found  that  Perkins,  instead  of  acquiescing,  under- 


SCIIWINN  V.   PERKINS  169 

took  to  resist  what  amounted,  under  the  decision  in  Mason  v.  Powell, 
to  a  forcible  entry  by  Schwinn,  and,  so  far  from  being  himself  guilty 
of  a  forcible  entry,  was  only  defending  his  already  existing  posses- 
sion against  a  mere  trespasser.  The  Massachusetts  Supreme  Court 
has  reached  the  same  result  in  a  similar  case.  Hodgkins  v.  Price, 
132  Mass.  ig6.  The  court  said:  "The  process  is  for  the  purpose  of 
restoring  one  to  a  possession  which  has  been  kept  from  him  by  force. 
It  is  not  a  process  against  a  party  who  resists  the  right  of  posses- 
sion by  force,  but  it  is  for  an  interference  with  an  actual  possession. 
The  claim  that  this  plaintiff  was  ever  in  possession  of  this  estate  is 
simply  preposterous.  He  had  no  more  possession  of  it  than  he  would 
have  had  of  one  of  the  rooms  of  the  building  if  he  had  gone  into  such 
room  and  said  to  the  occupant  of  it :  'I  have  come  to  take  possession 
of  this  room.  Here  I  am,  in  possession ;  you  will  please  go  out.  I 
propose  to  hold  this  by  force,  and,  if  you  attempt  to  remove  me  by 
force,  then  the  v.'eaker  of  us  on  being  ejected  will  bring  an  action  of 
forcible  enti-y  and  detainer  against  the  other.'  But  to  make  this 
illustration  precisely  analogous  we  will  say  that  this  party,  instead 
of  calling  in  at  the  place  of  business  when  the  tenant  was  there,  took 
the  opportunity  while  he  had  gone  to  dinner  to  clamber  through  the 
transom  window  over  his  door,  and  in  the  mode  before  suggested 
salute  him  upon  his  return.  It  w^ould  be  a  disgrace  to  the  law  and 
to  all  concerned  in  the  administration  of  it,  to  say  that  a  possession 
thus  forcibly  obtained,  before  the  business  hours  of  the  day  from 
one  who  is  in  actual  peaceable  occupation  of  the  premises,  is  to  be 
protected  and  restored  by  the  law  w^hen  the  actual  occupant  shall 
resume  his  occupation."  If  the  rejected  evidence  had  been  received, | 
it  would  have  presented  a  question  for  the  jury  v/hether  the  plaintiff's  i 
agent  Willits  was  occupying  the  premises  under  such  circumstances ' 
as  amounted  to  a  legal  possession,  or  whether  Perkins  had  the  legal 
possession  by  virtue  of  an  executed  surrender.  We  think  the  evi- 
dence should  have  been  received,  and  that  the  Supreme  Court  was 
right  in  reversing  the  judgment  of  the  District  Covirt.^^ 


^'^  The  plaintiff  in  tliis  action  must  show  actual  and  peaceable  possession 
prior  to  the  time  of  the  forcible  entry  and  detainer.  Pennsylvania  v.  ll^addlc, 
-ATTTn-^n  YPfi.7  41  (I7Q2)  ;  Carter  v.  Neivbold,  7  How.  Pr.  (U.  V.)  166  (1852)  ; 
Mann  v.  Brady,  67  111.  95  (1873)  ;  Comrnoni<.'calth  v.  Bro^vn,  138  Pa.  447 
(1891);  Cain  V.  Flood,  21  N.  Y.  Civ.  Froc.  116  (1891)  ;  Culled ge  v.  white, 
IZ  Tex.  498  (1889)  ;  Chessen  v.  Harrehon,  119  Ala.  435  (1898)  ;  Laskodik  v. 
Touiashumes,  161  111.  App.  598  (1911)  ;  Carrier  v.  Carrier,  85  Conn.  203  (1912). 
Mere  constructitve  possession  is  insufficient,  although  an  actual  foothold  is 
not  always  absolutely  requisite.  O'Neill  v.  Jones,  72  Minn.  446  (1898)  ; 
Bradley  v.  West,  60  Mo.  59  (1875)  ;  Gid dings  v.  Land,  &c.,  Co.,  83  Cal.  96 
(1890)  ;  Midler  v.  Blake,  167  111.  150  (1897).  Possession  without  right  has 
been  protected  against  forcible  dispossession  even  by  the  legal  owner.  Iron 
Mountain  R.  Co.  v.  Johnson,  119  U.  S.  608  (1886)  ;  Mitchell  v.  Carder,  21  W. 
Va.  277  (1883)  ;  Peyton  v.  Peyton,  34  Kans.  624  (1886).  But  a  mere  scram- 
bling or  interrupted  possession  is  insufficient  to  support  an  action.  IVray  v. 
Taylor,  56  Ala.  188  (1876)  ;  Nezvton  v.  Doyle,  38  Mich.  645  (1878)  ;  Stevenson 
V.  Morrissey,  22  111.  App.  258  (1886)  ;  Blake  v.  McCray,  65  Miss.  443  (1888). 
A  mere  trespasser  or  intruder  can  not  bring  proceedings.  Hodgkins  v.  Price, 
132  Mass.  196  (1882)  ;  Lawton  v.  Savage,  136  Mass.  iii  (1883)  ;  Co.v  v.  Cun- 
ningham, 77  111.  545  (1875)  ;  Torrey  v.  Berke,  11  S.  Dak.  155  (1898).  Gen- 
erally, the  entry  or  the  detainer  must  be  accompanied  by  acts  of  violence  or 


I  TO  ACTK^XS 


(c)  Dower. 

W'ATl'.RS  z'.  GOOCH. 

CouuT  OF  Appkai.s  of  Kfxtuckv,  183 1.  "' 
6  J.  J.  Marsh,    (/vy.)    5S6. 

RoBFKTSOX,  C.  J.:  This  writ  of  error  is  prosecuted  to  reverse 
a  jiulg^nient  against  the  demandant  in  a  writ  of  dower,  wide  nihil 
Itabcf.-''  The  defendant,  who  was  such  as  tenant,  did  not  enter  his 
aj^pcarance,  but  demurred  to  the  evidence  given  on  a  writ  of  inquiry ; 
and  the  demurrer  was  joined  by  the  demandant,  and  sustained  by  the 
court.  The  opinion  on  the  demurrer  was  reserved  until  the  jury  had 
returned  a  verdict  in  favor  of  the  demandant  for  dower,  and  for  one 
cent  in  damages.  And  then,  after  sustaining  the  demurrer,  the  fol- 
lowing judgment  was  rendered: 

"Therefore,  it  is  considered  by  the  court  that  the  defendant  re- 
cover against  the  plaintiff  his  costs  by  him,  about  his  defense  herein 
expended,  and  the  said  plaintiff  in  mercy,"  etc. 

The  common-law  writ  is  an  unusual  though  an  appropriate  rem- 
edy for  obtaining  dower  in  this  state.''"  But  as  no  statute  of  Ken- 
tucky, or  of  Virginia  j)rior  to  the  separation,  has  prescribed  the  mode 
of  procedure  throughout,  and  as  the  bill  in  equity  has,  in  the  practice 
of  botli  states,  superseded  the  real  action  of  the  common  law  in 
cases  of  dower,  we  have  to  decide  now,  for  the  first  time  and  with- 
out the  aid  of  any  direct  authority,  how  far  the  ancient  British 
forms  in  such  cases  shall  prevail,  and  what  is  the  proper  mode  of 
proceeding  in  the  courts  of  this  state. 

In  England,  when  the  writ  was  obtained,  a  summons  was  served 


menaces  suflficient  to  cause  an  api)rehension  of  injury.  Kramer  v.  Lott,  50 
Pa.  495  (1865)  ;  Thoinpson  v.  CqinmomvealLlu  116  Pa.  155  (1887)  ;  Pharis  v. 
Gere,  no  N.  Y.  336"  (1888)  ;  Richter  \.  Cordcs,  100  Mich.  278  (1894)  ;  i'nits 
V.  Mmiro,  202  N.  Y.  34  (1911)  ;  In  re  Mnnro,  195  Fed.  817  (1912)  ;  Brooks  v. 
Brooks,  84  N.  J.  L.  210  (1913).  In  some  cases  an  entry  against  the  will  of 
the  occupant  obtained  by  strategy  or  stealth  has  been  held  sufficient  to  sus- 
tain the  charge.  Tucker  v.  Qiiimhy,  27  Iowa  15  (1873)  ;  Ilainmond  v.  Doty, 
184  111.  246  (1900)  ;  Young  v.  Milward,  109  Ky.  123  (1900)  ;  Cartcri  v.  Rob- 
erts, 140  Cal.  164  (1903);  White  v.  Pfieffer,  165  Cal.  740  (1913).  The  action 
does  not  lie  against  one  put  in  possession  by  the  sheriff  under  a  writ.  Rook 
V.  Godfrey,  105  Tenn.  534  (1900),  but  if  the  writ  be  void  it  will  not  give  law- 
ful possession.    Stark  v.  Billings,  15  Fla.  318  (1875). 

**  The  legal  remedy  at  common  law  to  enforce  an  assignment  of  dower 
was  the  writ  of  dower  ttnde  nihil  habet,  or  the  writ  of  right  of  dower,  brought 
against  the  tenant  of  the  freehold,  the  former  writ  was  adopted  where  no 
dower  had  been  assigned  by  the  tenant  within  the  vill  where  the  lands  lay 
of  which  dow-er  was  demanded,  but  if  the  widow  had  received  part  of  her 
dower  the  remedy  was  by  writ  of  right  of  dower.  Scribner  on  Dower,  vol. 
II,  p.  91.  The  writ  was  abolished  in  England  by  the  Common-Law  Procedure 
Act  of  i860,  §  26,  and  now  an  ordinary  action  is  commenced  by  writ  en- 
dorsed with  notice  that  dower  is  claimed,  Rules  of  Supreme  Court,  Appendix 
A,  pt.  II,  §  4.    3  Select  Essays  Anglo-Amer-  Leg.  Hist.  690. 

*"  In  a  number  of  the  states  the  common-law  mode  of  proceeding  by  writ 
of  dower  unde  nihil  habet  is  substantially  retained,   although  the  widow  is 


WATERS  V.   GOOCH  I /I 

on  the  land,  and  proclamation,  warning  the  tenant  of  the  freehold, 
was  made,  fourteen  days  before  the  return  of  the  summons,  on  a 
Sabbath  day  after  divine  service,  at  or  near  the  church  in  the  parish 
in  which  the  land  lay;  on  a  proper  return  of  the  service  and  procla- 
mation, the  tenant  was  entitled  to  an  essoign  if  he  appeared,  but  if 
he  failed  to  appear  the  demandant  was  entitled  to  a  "grand  cape," 
commanding  the  sheriff  to  take  one-third  of  the  land  designated  by 
metes  and  bounds  by  the  view  of  good  and  lawful  men  (generally 
two,  and  to  warn  the  tenant  to  appear  at  the  next  term.  On  a 
proper  return  of  the  grand  cape  the  demandant  v^^as  entitled  to  a 
judgment  for  her  dov/er  and  for  a  writ  of  seizin  for  the  land,  de- 
scribed in  the  return,  to  be  held  by  her  in  severalty;  after  judgment 
for  dower  by  default,  if  the  demandant  claimed  damages  also,  and 
suggested  on  record  that  her  husband  died  seized,  a  writ  of  inquiry 
was  av,-arded ;  the  inquisition  was  taken  by  the  sheriff  in  the  coun- 
try and  returned  on  the  writ  of  seizin.  It  was  not  necessary  to  file 
a  count  unless  the  tenant  entered  his  appearance  and  offered  to 
plead;  and  when  an  issue  was  made  up,  unless  the  jury,  impannelled 
and  sworn  to  try  it,  found  specially  that  the  husband  died  seized,  and 
of  what  estate  and  v/hen  he  died,  the  demandant  was  not  entitled  to 
damages;  2  Saunders  Reports  43,  n.  i,  3,  4. 

The  judgment  for  dower  and  that  for  damages  were  deemed 
chstinct,  and  independent,  the  one  of  the  other.  The  suit  Avas  con- 
sidered as  ended,  at  common  law,  by  the  judgment  for  seizin,  and 
the  damages  v^-ere  added  by  the  statute  of  Merton,  only  when  the 
husband  died  seized ;  and  hence,  though  personal  notice  was  not 
necessary  in  order  to  obtain  a  judgment  for  dower,  an  inquisition 
of  damages  was  illegal  and  ineffectual  unless  the  tenant  had  personal 
notice  of  the  time  of  executing  the  writ  of  inquiry ;  2  Saun.  45,  a.  n.  4. 

A  statute  of  Virginia  (1748)  re-enacted  in  this  state  in  1796, 
I  Dig.  66,  declares  that  "process  in  all  real  actions  shall  be  the  same 
and  have  the  same  effect  as  in  England,  except  that  the  returns  shall 
be  according  to  the  laws  of  this  commonwealth  ;"  and  also  allows 
one  imi)arlance,  and  abolishes  "views"  essoins,  and  "vouchers." 
An  act  of  1798,  i  Dig.  66,  reformed  the  method  of  proceeding  in 
writs  of  right;  but  the  mode  of  proceeding  in  writs  of  dower  has 
never  been  s])ecially  regulated  by  any  statute.  We  are  of  opinion, 
however,  that  the  statute  of  1810,  i  Dig.  258,  and  that  of  181 1,  i 
lb.  262,  for  regulating  civil  proceedings  in  all  suits  at  common  law, 

not  limited  to  the  common-law  action  alone.  The  action,  however,  has  been 
modernized  and  simplified.  See  Massachusetts  Revised  Laws  (1902),  ch. 
180,  p.  1621  ;  Maine  Rev.  Stat.  (1903),  ch.  105,  p.  848;  New  Hampshire  Pub- 
lic Statutes  (1901),  ch.  242,  p.  753;  Rhode  Island  General  Laws  (1909).  ch. 
329,  p.  1196,  §  7;  New  Jersey  General  Statutes,  vol.  II,  p.  1275;  Delaware 
Laws,  ch.  87,  p.  663;  Pennsvlvania  Act  of  Tune  i.^.  1836;  P.  L.  568,  §  79; 
Brozcn  v.  Adams,  2  Whart.  (Pa.)  188  (18,36):  Joherv:T'aiterson, J2  Pa.  149 
Ti^dO)  :  A'Uracldcn  v.  Mcl^addcn  32  Pa.  Super.  Ct.  534  (1907)-  In  some 
jurisdictions  ejectment  will  he  tor  unassigned  dower.  Galhraith  v.  Fleming, 
60  Mich.  408  (1886),  although  at  the  common-law  ejectment  vvould  not  lie 
where  the  dower  had  not  been  assigned.  Doc  v.  Niiit,  2  Car.  &  P.  430  (1826)  ; 
Gonrlcy  y  Kinley,  b6  V:i.  270  (1870).  In  New  York  the  action  for  dower  is 
regulated  by  the  ("ode  of  Civil  Procedure,  §§  1596  to  1625.  In  California, 
dower,  as  such,  is  not  allotted  to  the  widow,  California  Civil  Code,  §  173. 


IJ2  ACTIOXS 

must  be  understood  as  aiiplyinj^  to  writs  for  dower,  not  only  as  to 
the  service  and  return  of  ])rocess,  hut  also  as  to  the  pleadings  and 
trial :  Consec|uently,  a  count  will  he  necessary  whether  the  tenant 
appear  or  not,  and  the  case,  like  other  common-law  suits,  may  stand 
for  trial  at  the  hrst  term  after  ten  days'  personal  service  of  the  writ. 
Trior  to  the  statute  of  IMerton  a  demandant  was  not  entitled  to 
recover  damai^es  in  any  writ  of  dower.  That  statute  allowed  dam- 
aj?es  when  the  husl)and  had  died  seized.'^  P)Ut  since  its  enactment 
the  common-law  form  of  declaring  (when  a  count  became  neces- 
sary )  was  not  changed ;  and  consec|uently  it  was  never  necessary  to 
a\cM.  in  the  count,  that  the  husband  died  seized.  But  when  the  de- 
mandant had  obtained  judgment  for  dower  by  default  and  without 
a  count,  a  writ  of  inquiry  of  damages  was  not  awarded  unless  it  was 
suggested  on  the  record  that  the  husband  had  died  seized. 

'  The  tenant,  by  default,  admits  the  demandant's  right  to  dower  so 
far  as  her  count  alleges  a  legal  claim:  consequently  a  judgment  for 
the  dower  should  be  rendered,  in  such  a  case,  in  consequence  of  the 
default.  But  there  should  be  no  writ  of  inquiry  unless  it  be  inferable 
from  the  count  that  the  demandant  claims  damages  by  averring,  in 
substance,  that  her  husband  died  seized.  For,  unless  the  count  can 
be  construed  as  importing  an  allegation  that  the  husband  died  seized, 
a  default  does  not  admit  that  the  demandant  has  a  right  to  damages 
or  to  a  writ  of  inquiry:  and  as  a  writ  of  inquiry  in  a  case  of  dower 
should  be  executed  in  court  (as  in  ordinary  cases  in  this  country), 
the  tenant  might  be  surprised  if  there  sh<)uid  be  an  inquisition  asto 
damages  when  he  had  not  been  notified  by  the  count  or  otherwise 
that  the  demandant  claimed,  or  w^as  ever  entitled  to  any  damages. 
It  seems  to  us  that  as,  according  to  the  statutes  of  1810-11,  writs  of 
dower  should  be  tried  in  the  same  manner  as  other  suits  at  law^  are 
triable,  whenever  a  demandant  may  be  entitled  to  a  writ  of  inquiry, 
the  inquisition  should  be  held  on  the  hearing  of  the  cause  in  court; 
and  hence,  as  the  common-law  mode  of  suggesting  on  the  record 
that  the  husband  died  seized,  and  of  notifying  the  tenant  of  the  time 
of  holding  the  inquisition  in  the  country  is  ineligible  and  inappro- 
priate here,  there  should  be  no  inquiry  of  damages,  by  default,  un- 
less the  count  allege,  in  effect,  that  the  husband  died  seized.^- 


*'  Emhrec  v.  liUis,  2  Johns.  (N.  Y.)  118  (1S07).  See  N.  Y.  Code  Civ.  Proc, 
§  1601,  and  Marble  v.  Lezds,  53  Barb.  (N.  Y.)  43^  (1867)  ;  Blair  v.  Ohphani,  9 
Mo.  237  (1943)  ;  La\ton  v.  Butler,  4  Harr.  (Del.)  507  (1847)  :  Hopper  v.  Hop- 
per. 22  N.  J.'L.  71s"  (l8so)  ;  Brnnrr  v.  Evans.  3  V.  &  W.  (Pa.)  4.S4  (1832)  ; 
Price  V.  Hohbs,  47  Md.  359  (1877)  ;  Roan  v.  Holmes,  32  Fla.  295  (1893)  and 
note  21  L.  R.  A.  180. 

*-  In  modem  proceedings  the  sufficiency  of  tlie  pleadings  will,  of  course, 
depend  upon  the  statutes  and  practice  of  the  particular  jurisdiction.  In  gen- 
eral, the  widow  should  set  forth  her  marriage.  Draper  v.  Draper,  il  Hun 
(N.  Y.)  616  (1877),  the  seizin  of  her  husband,  Morse  V.  Thorsell,  78  III.  600 
(1875);  Hiitchins  v.  Burril,  72  Maine  311  (1881);  Kenyan  v.  Kenyan,  17 
R.  I.  339  (1891)  ;  Garrison  v.  Young,  135  Mo.  203  (1896)  ;  describe  the  prem- 
ises. Atzvood  V.  Atzi'ood.  22  Pick.  (Mass.)  283  (1839)  ;  Bostick  v.  Barnes,  59 
S.  Car.  22  (1900),  and  in  some  jurisdictions  a  demand  on  the  tenant.  Free- 
man V.  Freeman,  39  Maine  426;  (1855)  '-  Ba9C  v.  Page,  60  Mass.  196  (1850)  ; 
Daz'is  V.  Walker,  42  N.  H.  482  (1861),  although  at  common  law  such  a  demand 
was   unnecessar>-   to   tlie   maintenance   of    an    action,    Jackson   v.    Loucks,   7 


WATERS  V.   GOOCH  1 73 

The  count  in  this  case,  dQ£s_not-. allege  that  the  husband  died 
seized ;  consequently  the  writ  of  inquiry  was  unauthorized,  and  ought 
to  have  been  set  aside.  When  a  defendant  admits,  by  default,  that 
ttTe~T5taintifT'is  entitled  to  damages,  a  demurrer  to  evidence  on  the 
inquiry  would  be  irregular,  because  the  effect  of  a  demurrer  to  evi- 
dence, and  of  a  judgment  sustaining  such  demurrer,  is,  that  the 
plaintiff  is  not  entitled  to  any  damages ;  and,  therefore,  when  a  de- 
fendant has  admitted,  by  his  default,  that  the  plaintiff  is  entitled  to 
some  damages,  he  should  not  demurr  to  illegal  or  insufficient  testi- 
mony, but  should  object  to  its  introduction,  or  move  to  exclude  it. 
But  as  the  default  in  this  case  did  not  admit  that  the  demandant  was 
entitled  to  any  damages,  the  demurrer  to  the  evidence  which  proved 
that  her  husband  had  sold  and  conveyed  the  land  in  his  lifetime,  was 
proper,  although  a  motion  to  set  aside  the  inquisition,  or  quash  the 
writ  of  inquiry  might,  perhaps,  have  been  more  regular.  The  de- 
mandant was  not  entitled  to  costs,  unless  she  had  been  entitled  to 
damages,  for  Vv^e  know  of  no  law  allowing  costs  to  a  demandant  in 
a  writ  of  dower  when  she  fails  to  obtain  damages.*'' 

Wherefore,  as  to  the  damages  and  costs,  the  circuit  court  did  not 
err  in  sustaining  the  demurrer.  Rut  it  erred  in  giving  costs  to  the 
tenant,  as  he  had  not  entered  an  appearance,  and  also  in  rendering 
judgment  in  bar  of  the  action.  As  the  default  admitted  the  right  to 
dower  so  far  as  it  was  sufficiently  alleged  in  the  count,  jvidgment 
ought  to  have  been  given  for  dower;  and  if  the  cotmt  be  defective, 
still  the  court  erred  in  barring  the  action;  and  therefore  judgment 
must  be  reversed.  As  the  case  will  be  remanded,  and  may  be  retried, 
it  is  proper  to  observe  that  the  count  is  defective  in  not  alleging  that 
the  husband  was  ever  seized  of  such  an  estate  as  would  entitle  the 
wife  to  dower.  To  entitle  a  demandant  to  do\yer,  her  count  must 
aver,  in  substance,  that "stfe' was  the  wife ;  and  that  the  husband  was, 
during  coverture,  seized  of  a  freehold  interest  at  least;  see  Booth  on 
Real  Actions ;  Sanders,  supra,  and  Ambler  and  Wife  v.  Norton,  4 
Henning  &  Munford,  42.  It  is  true  that  a  freehold  may  be  only  a 
life  estate;  but  it  is  a  maxim  in  pleading  that  a  freehold  shall  prima 
facie,  be  understood  to  mean  the  largest  estate  in  fee.  The  count  in 
this  case  avers  only,  that  the  husband  had  "purchased"  the  land. 
That  is  not  equivalent  to  an  averment  that  he  had  acquired  a  free- 
hold interest ;  because  he  might  have  "purchased"  only  an  estate  for 
years,  of  which  his  wife  would  not  have  been  dowable. 

As  there  may  be  another  trial,  we  deem  it  not  improper  to  make 
a  further  suggestion  as  to  the  mode  of  obtaining  and  enforcing  a 
judgment  for  dower.  Neither  tlie  grand  nor  petty  cape  can  be 
ap])licable  or  proper  in  the  procedure  by  writ  of  dower  in  this  state; 
because,  according  to  the  statute  regulating  the  mode  of  proceeding 
in  common-law  actions,  a  judgment- may  be  obtained  at  the  appear- 
ance term  ;  nor  is  any  other  process  necessary  or  proper  for  warning 


Cow.  (N.  Y.)  287  (1827)  ;  Cozvan  v.  Lindsay,  30  Wis.  586  (1872)  ;  but  failure 
to  make  demand  may  bar  a  recovery  of  damapes  for  detention  on  a  plea  of 
toiit  teynps  prist.    Woodruff  v.  Brovun,  17  N.  J.  L.  246. 

"Fisher  v.  Morgan,  i  N.  J.  L.  147  (1792)  :  Sliart)  v.  Pettit.  4.  Dall.  (Pa.) 
212  (1800),  but  see  Gannon  v.  Wildman.  t.  Pa.  D.  R.  835  (1894). 


1/4  ACTIONS 

the  tenant,  than  a  writ  in  the  nature  of  the  precipe,  and  the  form 
of  which  is  given,  in  outline,  by  an  act  of  i7Qt\  i  Dig.  445. 

In  England,  when  the  tenant  appeared  and  pleaded  to  the  action, 
if  the  demandant  obtained  judginent  for  dower,  it  was  rendered  for 
one-third  of  tlie  land  (^described  in  the  count)  to  be  ascertained  and 
allotted  to  her  by  metes  and  bounds  by  the  sheriff,  on  an  inquisition 
by  two  or  more  persons  selected  by  him  in  pursuance  of  the  writ  of 
seizin  on  which  he  made  his  return  to  court  showing  the  manner  in 
which  he  had  executed  it,  and  what  land  he  had  delivered  to  Uie  de- 
mandant.** The  form  of  the  judgment  for  dower,  together  with  that 
for  damages  when  the  husband  died  seized,  may  be  seen  in  2  Sand- 
ers. Ov^i'--  Such  must  be  the  judgment  in  this  country,  whether 
rendered  upon  an  issue  or  by  default,  because,  as  neitlier  the  gjand 
nor  petty  cape  can  be  used,  and  as  a  judgment  may  be  rendered  at 
the  first  term  succeeding  tlie  service  of  the  writ,  tlie  dower  can  not 
be  designated  here  prior  to  the  judgment,  as  it  was  in  England  when 
there  was  a  default,  and  therefore  must,  in  all  cases  alike,  be  set 
apart  in  severalty  by  the  sheritt  acting  under  the  writ  of  seizin.  If 
either  party  have  cause  to  complain  of  the  manner  of  executing  the 
writ,  the  return  may,  for  sufiicient  cause,  be  quashed,  and  a  new 
writ  issued. 

If  the  husband  had  alienated  the  land  in  his  lifetime,  seizin 
should  be  given  to  the  wife  of  a  third  in  value,  according  to  the  con- 
dition of  the  land  at  the  date  of  the  alienation ;  Perkins,  Tit.  Dow. 
sec.  328;  Hargrave's  note,  193,  to  lib.  i  Co.  Lit.  Humphrey  v.  Phin- 
ney,  2  Johnson's  Rep.  484;  Dorchester  v.  Coz'eutry,  11  Johnson's 
Rep.  512;  ShaiL'  v.  White,  13  Johnson's  Rep.  179. 

On  the  return  of  tlie  cause  to  the  circuit  court  the  demandant 
may  amend  her  count,  and  the  defendant  may,  of  course,  appear  and 
plead. 

Judgment  reversed,  and  cause  remanded  for  further  proceedings 
consistent  with  this  opinion.*^ 


**  Folicmbc's  Case,  Godbolt's  Reports  165  (1611)  ;  Gannon  v.  U'idman, 
3  Pa.  Dis.  R.  S35  (1894).  See  also,  Scribner  on  Dower,  vol.  II.  p.  140;  Park 
on  Dower,  p.  299. 

"  As  early  as  the  reign  of  Elizabeth  the  court  of  chancery-  exercised  an 
auxilian,-  jurisdiction  in  claims  for  dower.  The  limits  of  this  jurisdiction 
were  not  clear  at  first,  but  in  time  were  expanded  until  as  a  final  result  of 
the  decisions,  equity  entertained  a  general  concurrent  jurisdiction  in  the 
assignment  of  dower.  Curtis  v.  Curtis,  2  Brown's  Ch.  620  (1789)  ;  Mundy  v. 
Mundy,  2  Vesey  Jr.  122  (1793")  ;  Pultncy  v.  Warren,  6  Vesey  Jr.  73  (1801). 
This  jurisdiction  has  generally  been  assumed  by  courts  of  equity  in  America. 
Herbert  v.  Wren,  7  Cranch  (U.  S.)  370  (1S13)  ;  Badgley  v.  Bruce,  4  Paige  ch. 
(X.  Y.)  98  (1833)  ;  Hartshornc  v.  Harishorne,  2  X.  J.  Eq.  349  (1840)  ;  Blain 
V.  Harrison,  II  111.  384  (1849)  ;  Farrow  v.  Farro'je,  I  Del.  Ch.  457  (1822); 
S Prague  v.  Stciens,  2^  R.  I.  361  (1911). 
Jt  In  Pennsylvania,  the  Act  of  July  7,  1885,  P.  L.  257.  confers  upon  the 

,  courts  of  common  pleas  all  the  power  and  jurisdiction  of  a  court  of  equity 
in  dower  and  partition.  See  under  prior  acts.  BroiL-n's  At>Peal,  84^  Pa.  457 
(1877)  :  Kelso's  Appeal,  102  Pa.  7  (1882).  The^Orphans'  Court  has  jurisdic- 
tion where  the  widow  elects  to  take  against  her  husband's  will.  Lippincott's 
Estate,  7  Phila.  (Pa.)  504  (1870)  ;  Robin's  .►\ppeal.  i  W.  X.  Cas.  238  (1875). 


DUVALL  V.  WATERS  1 75 


(d)  Waste. 


DUVALL  V.  WATERS. 

Court  of  Chancery  of  ]^vIarylaxd,  1827.. 

I  Bland  Ch.   (Md.)   569.'" 

Bland,  Chancellor :  The  terms  waste  and  trespass  are  very  often 
used  to  designate  injuries  to  property  of  the  identical  same  nature. 
The  cutting  of  a  timber  tree,  or  the  pulling  down  of  a  house,  may  be 
an  act  entirely  lawful;  or  it  may  be  an  act  of  waste,  or  of  trespass; 
and,  that  not  because  of  any  peculiarity  in  the  act  itself ;  but,  because 
of  the  party,  by  whom  it  may  have  been  done,  having  an  absolute 
title,  a  limited  estate,  or  no  right  whatever.  The  absolute  ovv'ner  of 
an  estate  in  fee  simple,  Vv-ithout  any  incumbrance,  or  charge  upon  it, 
has  an  uncontrollable  power  to  dispose  of  it  as  he  may  think  proper ; 
and  can  be,  in  no  way  held  accountable,  as  a  w^aster  or  trespasser, 
for  any  thing  he  may  do  with  the  trees,  houses,  or  soil  of  his  lands. 
If  he  who  does  such  an  act  has  only  a  particular  estate,  as  a  tenancy 
Tor  life  or~y ears, It  is  properly  deribrhlhate^'lva'STgT'fant^f^T^ 
ri^hL  whatever,  it-  is  then  said  to  be  a  trespass!  iii  general,  when 
any  permanent  or  lasting  "injury  is  done,  by'The  holder  of  the  partic- 
ular estate,  to  the  inheritance,  or  to  the  prejudice  of  any  one  who 
has  an  interest  in  the  inheritance,  it  is  properly  called  waste;  as 
where  timber  trees  are  felled,  or  houses  are  destroyed  by  a  tenant 
for  life  or  years;  or  by  a  mortgagor  or  mortgagee  in  possession;  or 
by  a  tenant  in  fee  simple,  where  the  state  has  reserved  to  itself  an 
^interest  in  the  trees,  etc.,  for  the  use  of  the  public. 

In  general  waste  is  the  abuse,  or  destructive  use  of  property  by) 
him  who  has  not  an  absolute  unqualified  title.  And  in  general  tres-/ 
pass  is  an  injury,  or  use,  without  authority,  of  the  property  of  an-l 
other,  by  one  who  has  no  right  whatever. 

At  common  law,  if  the  owner  of  the  inheritance  had  good  reason 
to  believe,  that  a  tenant  in  dower,  or  by  the  courtesy,  or  a  guardian 
designed  to  commit  waste,  he  might,  before  any  waste  was  done, 
have  a  prohibition  directed  to  the  sheriff,  commanding  him  to  pre- 
vent it  from  being  done ;  and  in  execution  of  this  writ  of  prohibition,  ^ 
the  sheriff  might,  if  necessary,  call  to  his  aid  the  posse  comitatus.  .^  "^ 
This  writ  was  extended,  by  a  statute  passed  in  the  year  1267,  to      ' 
tenants  for  life  and  for  years;  and  afterwards,  in  1285,  it  was  taken  ^.,-■.-'- 
away,  and  another  form  of  writ  given  in  its  place;  but  when  the  !*'  J,^^ 
court  of  chancery  first  granted  injunctions,  it  seems  to  have  taken     •■' 
its  jurisdiction  from  this  writ  of  prohibition  of  waste.*" 

After  waste  had  been  actually  committed,  the  ancient  corrective 
remedy,  in  a  court  of  common  law,  was  by  a  writ  of  waste,  for  the 


^"  Only  so  much  of  the  opinion  of  the  chancellor  as  describes  the  com- 
mon-law remedies  for  waste  is  printed. 

"  Coke  on  Littleton,  53 ;  2  Coke's  Institutes,  299 ;  Jefferson  v.  Bishop  of 
Durham,  i  B.  &  P.  105  (1797). 


176  AfllONS 

recovery  of  the  pUue  wastctl  aiul  treble  damages,  as  a  compensa- 
tion tor  the  injury  done  to  the  inheritance."*  There  were,  however, 
several  cases  to  which  the  writ  of  waste  did  not  extend;  and  as  to 
such  cases,  the  party  was  left  without  any  remedy  at  ccjmmon  law. 
The  action  of  waste  could  only  have  been  brought  by  him  who  had 
the  unmediate  reversion  or  remainder,  to  the  disinheritance  of  whom 
the  waste  wais  always  alleged  to  have  been  committed ;  and  there- 
fore, if  a  lease  had  been  made  to  A  for  life  or  years,  remainder  to 
B  for  life;  and  A  committed  waste,  the  action  could  not  be  brought 
bv  him,  in  reversion  or  remainder,  so  long  as  the  life  estate  of  B 
continued.  Rut  thejntervenm^jjfe  estate  only  s.U5pended  the  rem- 
1  edy^  for,  after  its  termmationTTTie  reversioner,  or  remainderman 
might  then  bring  his  action  against  A  for  the  waste  done  before 
that  time,*"  Nor  could  ajiy  one  maintain  this  action  unless  he  had 
the  estate  of  inheritance  in  him  at  the  time  the  waste  was  com- 
mitted ;  nor  could  it  be  sustained  against  an  executor,  for  waste  com- 
mitted by  his  testator,  it  being  a  wrong  which  died  with  the  person; 
nor  could  one  coparcener  bring  an  action  of  waste  against  another ; 
although  one  joint  tenant  or  tenant  in  common  might  have  a  writ  of 
waste  against  his  cotenant,  compelling  him  either  to  make  partition, 
and  take  the  place  wasted  as  his  own  share,  or  to  give  security  not 
to  commit  any  further  waste."'" 

At  the  common  law  there  was  no  process  by  which  a  threatened 
trespass  upon  a  real  estate,  however  great  or  irreparable,  could  be 
prevented.  After  the  act  was  done  the  injured  owner  might  bring 
his  action  of  trespass  against  the  vv^rongdoer,  and  recover  satisfac- 
tion in  damages ;  but.  the  common  law  gave  him  no  means  of  pre- 
venting the  execution  of  the  designs  and  threats  of  any  one,  w^hose 
declared  and  settled  purpose  was  to  commit  a  trespass  upon  his 


^^  "Waste,  at  common  law,  was  a  real  action  which  could  be  maintained 

for  an  injur\'  to  lands,  houses  and  woods  to  the  prejudice  of  the  heir.     By 

the  statute  of  Gloucester   (6  Edw.  I,  ch.  5),  the  plaintiff  could  recover  not 

only   the   possession    of    the   property,    but    treble    damages    for    the    injury. 

Thereafter  the  action  was  considered  a  mixed  action  and  was  based  partly  on 

the  common   law  and  partly  on  the  statute.    After  beinp  in   long  disuse   in 

England,  the  action  was  abolished  by  the  statute,  3  &  4  William  IV,  ch.  27. 

iThis  action  was  never  much  in  use  in  this  country,  the  action  on  the  case  in 

I  the  nature  of  waste  for  the  recovery  of  single  damages  only  being  resorted 

Ito  in  Its  stead,  as  it  had  long  superseded  in  England  the  old  action  of  waste." 

I  Wills'  Gould  on  Pleading,   13.    3  Blackstone's  Commentaries,  228;  Moore  v. 

Tounshend,  zi  N.  J.  L.  284  (1869);  Stevens  v.  Rose,  69  Mich.  259  (1888). 

To  what  extent  the  statutes  of  Marlbridge  and  r,Ioucester  are  in  force  in  this 

countr>-  is  a  matter  of  considerable  uncertainty.    Compare  Sackett  v.  Sackett, 

8  Pick.   (Mass.)   309  (1829);   ll'aples  v.   U'ap'les,  2  Harr.   (Del.)  281    (1837), 

with  Moore  v.  Ellsivorth,  3  Conn.  483   (1821)  ;  Stetson  v.  Day,  51  Maine  434 

(1863);  Roby  V.  Ne-u'ton,  121  Ga.  679   (1904);  Magness  v.  Harris,  80  Ark. 

^83  (1906),  and  see  4  Kent's  Commentaries,  80. 

*' Robinson  v.  Wheeler,  2t  N.  Y.  252  (1862);  Short  v.  Piper,  4  Harr. 
md.)  181  (1844):  Tiffany  on-  Real  Property  (1903),  §  255.  One  entitled 
to  a  contingent  remainder  can  not  maintain  an  action  of  waste,  his  remedy 
is  in  equity.  Latham  v.  Lumber  Co.,  139  N.  Car.  9  (1905)  ;  Ohio  Oil  Co.  v. 
Daufjhetee,  240  111.  361  (1909)  ;  Canada  v.  Daniel,  157  S.  W.  1032  (Mo.  1913)- 
^Otherwise  in  Pa.  by  act  of  June  8,  1891,  P.  L.  208. 

'         "'Nelson  v.  Clay.  7  T.  J.  Marsh.  (Ky.)  139  (18.32)  ;  JInolihan  v.  TJnoJihan, 
193  X.  Y.  197  (1908). 


DUVALL  V.  WATERS  IJJ 

lands.  If,  however,  the  claimant  was  not  in  possession,  and  he 
thought  proper  to  bring  an  action  to  estabhsh  his  right,  and  recover 
the  estate;  then,  and  in  aid  of  such  suit,  and  to  prevent  any  injury 
from  being  done  to  the  property,  pending  the  controversy,  the  com- 
mon law  gave  the  writ  of  estrepement.  It  would  seem,  that  orig- 
inally this  writ  could  only  be  used  as  an  aid  to  a  real  action  for  the 
recovery  of  the  land  itself ;  but,  its  scope  having  been  extended  by 
statute,  it  was  afterwards  used  in  connection  with  actions  in  which 
no  land  was  demanded,  as  in  actions  of  waste,  trespass,  etc.  It  was 
not,  hovvcver,  allowed  to  be  associated  with  a  suit  for  partition;  be- 
cause the  tenants,  being  both  of  them  in  possession,  there  was  no 
reason  why  one  should  be  restrained  and  not  the  other.  A  writ  of 
estrepement  might  be  sued  out  at  the  same  time,  and  together  with 
the  original  writ,  commencing  the  action ;  and  that  too,  in  those  cases 
where  damages  for  waste  done,  pending  the  action,  might  be  recov- 
ered; because  it  was  injurious  to  the  commonwealth  that  waste 
should  be  done,  and  peradventure  he  who  committed  it  might  not  be 
able  to  satisfy  the  plaintiff  his  full  damages. ^^ 

The  writ  of  estrepementjs  c-Tlainly  a  preventive  remedy,  and  so 
far  it  is  analogous  to  a  writ  of  prob.ibition,  by  v/hich  a  tenant  in 
dower,  or  by  the  courtesy  might  be  prevented  from  doing  waste. 
But  it  is  more;  it  is  also  a  remedial  and  correctiye  remedy ;  because, 
tlic  holder  of  land  may  n(.)t  onl}-  l)c  ])rL'\cnted  from  doing  waste;  but 
if  he  should  do  any  notwitlislandinf;-  the  prohibition,  the  plaintiff 
may  recover  damaL^es  fur  such  waste,  e\cn  u[)  to  the  time  when 
possession  stiall  be  dclixcrcd  to  liini.  Tliis  writ  has  some  other  pecu- 
liar  traits  of  character.  Tt  can  ikwt  he  brought  into  action  inde- 
pendently and  alone ;  it  must  always  be  associated  with  another  as 
fe'tea^dfrr ;  to  which  it  acts  as  an  auxiliary,  whose  fortunes  it  must 
foTTow,  and  to  v/hose  final  fate  it  must  submit.  If  it  emanates,  as  it 
may,  at  the  same  time  and  together  with  its  chief,  from  the  chancery 
office,  it  is  then  called  an  original ;  but  if  it  be  awarded  by  the  court, 
in  which  the  action  is  depending,  as  it  may,  it  is  then  called  a  judicial 
writ  of  estrepement.  This  writ,  as  its  very  name  distinctly  imports, 
is  always  intended  to  stay  waste.  It  is  nowhere  spoken  of  as  a 
means  by  which  a  mere  trespass  may  be  prevented ;  in  all  its  modifi- 
cations, it  is  continually  treated  as  a  remedy  against  waste.  But  in  a 
writ  of  right,  and  all  the  other  actions,  except  a  writ  of  waste,  to 
which  an  estrepement  is  called  in  as  an  auxiliary,  there  is  not  any 
privity  of  title  whatever  between  the  parties  to  the  suit;  all  such 
privity  being  expressly  disavowed.  The  plaintiff  asserts,  and  calls 
for  the  vindication  of  his  absolute  title  against  an  unqualified  wrong- 
doer, who  he  complains  of  as  a  disseizor,  ejector,  or  trespasser. 


'*  The  scope  of  the  writ  of  estrepement  has  been  extended  in  Pennsyl-  v 
vania  by  the  acts  of  April  2,  1803,  4  Sm.  L.  88,  §  2;  March  29,  1822,  7  Sm.  L.' 
520,  §  I  ;  March  27,  1833,  P.  L.  99,  as  well  as  other  acts  which  will  be  found  in 
2  Pepper  &  Lewis'  Digest,  Zi2)2>^  title  estrepement.  Brown  y,  O^Brj^n,  3 
Clark  (Pa.)  93  (1838)  ;  Jones  v.  Whitehead,^}.  Parson  iLq.  (Pa.)  304  (1847)  ; 
Smith  V.  ChaJ>J)cll^S  Pa.  Super.  CX  8r  (1904)  ;  Ebcrly  v.  Rupp,  90  Pa.  259 
(1879)  ;  Arthurs  v.  Wilson,  242  Pa.  429  (1913). 

12 — Civ.  Proc. 


I/S  ACTIONS 

Aiul,  ihorcforo.  in  all  such  cases,  the  injury  which  it  is  the  office  of 
the  writ  of  estrepenient  to  prevent,  is  not  projierly  waste,  founded 
on  privity  of  title,  as  hetwecn  a  reversioner  and  a  particular  tenant; 
hut  literally  a  trespass,  in  the  chancery  acceptation  of  that  term; 
and  not  a  mere  almsive  use  of  that  which  a  lawful  holder  had  a 
ri.tjht  to  enjoy. 

Where  the  title  and  the  rights  of  the  parties  are  admitted,  there 
can  he  no  mistake ;  and  therefore,  there  should  be  no  confusion  or 
misapplication  of  these  terms  waste  and  trespass.  But,  in  the  Eng- 
lish authorities,  there  is  not  the  same  distinctness,  in  the  applica- 
tion of  them,  to  any  such  injuries  to  the  inheritance,  where  the  rights 
of  the  parties  are  disputed  and  ])ut  in  litigation.  If  the  party  asserts 
his  title  to  an  estate,  by  an  action  at  law,  such  acts,  w  ith  reference  to 
a  i^resumption  in  favor  of  the  validity  of  his  title  ])ending  the  suit, 
arc  said  to  be  waste;  but  if  he  asks,  in  a  court  of  chancery,  to  have 
tlie  doing  of  such  acts  prevented  by  an  injunction,  they  are  denom- 
inated trespasses.  This  difference  in  characterizing  the  same  in- 
jurious acts,  when  proposed  to  be  prohibited  by  an  estrepement,  as 
waste;  and  when  proposed  to  be  restrained  by  an  injunction  as  tres- 
pass, has  been  attended  Vvith  some  confusion.  And  therefore  in 
relation  to  the  peculiar  species  of  injunctions,  now  under  considera- 
tion, all  such  acts  as  would  be  deemed  waste,  when  done  by  an 
admitted  particular  tenant,  if  done  after  the  institution  of  any  suit 
involving  the  title,  or  of  a  suit  for  partition,  it  may  be  well  to  de- 
nominate eventual  waste. 

The  judicial  records  of  the  state,  and  the  acts  of  assembly  reg- 
ulating officers'  fees  show,  that  the  writ  of  waste  as  well  as  the  writ 
of  estrepement  were  at  one  time  in  common  use  in  Maryland.  But 
here,  as  in  England,  these  w'rits  have  fallen  into  disuse,  and 
are  now  seldom,  or  never  brought,  having  given  way  to  the  more 
easy  and  expeditious  remedy  by  an  action  upon  the  case  in  nature 
of  waste  at  common  law^ ;  by  which  the  plaintiff  obtains  satisfaction 
for  the  injury  done  to  his  inheritance  by  a  recovery  of  damages 
alone  ;^-  and  in  Alaryland  to  an  injunction  from  chancery  which  per- 
forms the  office  of  a  writ  of  estrepement. 

The  whole  subject  of  waste,  in  Maryland,  seems  to  have  ]:>assed, 
almost  altogether,  from  the  cognizance  of  the  court  of  common  law 
to  that  of  the  court  of  chancery;  and  the  shifting  of  this  matter  so 
entirely,  from  the  one  jurisdiction  to  the  other,  may  be  attributed  to 
the  nature  of  the  injury  recpiiring  redress;  to  the  dififerent  constitu- 
tions of  the  tribunals ;  and  to  their  peculiar  modes  of  proceeding. 
Waste  is  a  wrong  which  can  not  always  be  duly  estimated  and  re- 
munerated in  damages;  it  is  an  injury  which  requires  to  be  met,  in 


"Greene  v.  Cole,  2  Saund.  252  (1671)  arid  note;  Young  v.  Spencer,  10 
B.  &  C.  145  (1829)  ;  IVoodlwusc  v.  Walker,  L.  R.  (1880),  5  Q-  B.  Div.  404; 
IVhite  V.  IVagner,  4  H.  &  J.  (Md.)  373  (1818)  ;  Smith  v.  Follanshee,  13  Maine 
^72  (1836) ;  Bellovjs  v.  McGinnis,  17  Ind.  64  (1861)  ;  Moore  v.  Townsliend,  33 
N.  J.  L.  284  (1869)  ;  Pnftprj^niiv  C^niliffe^y  Pliila.  (Pa.^  ^64.  (1875)  ;  Stevens 
V.  Rose,  69  Mich.  259  ( iSSSyfDorsey  v.  Moore,  100  N.  Car.  41  (1888)  ;  Jrus- 
teej^  of  Proprietors  of  Kingston  v.  Lehigh  ]'.  C^^l  ^^--  241  Pa.  469  (1913). 
Yhere  is  a  double  remedy  in  RliodeTiland.  Thackeray  \.'~Eldigan,  21  R.  I.  481 
(1899)  ;  and  Maine,  Stetson  v.  Day,  51  Maine  484. 


TIIOURON  V.   PAUL  179 

its  onset,  or  earliest  a])i)roaches,  by  a  strong  and  decisive  preventive 
remedy,  acting  with  a  promptness  almost  amounting  to  surprise; 
and  yet  affording  to  the  party  restrained  a  speedy  hearing.  No 
adequate  remedy  of  this  kind,  it  is  evident  can  be  obtained  from  a 
court  of  common  law,  open  only  at  short  intervals  during  the  year ; 
acting  from  term  to  term;  and  limited  to  a  given  set  of  technical 
forms  of  proceeding.  Hence  it  is,  that  the  remedy  has  been  so  con- 
stantly, in  modern  times,  sought  in  the  court  of  chancery,  which  is 
always  open,  constantly  accessible,  and  is  capable  of  moving  with  an 
energy  and  despatch  called  for  by  the  emergency,  and  suited  to  the 
peculiar  nature  of  the  case.^' 


(e)   Account.'^* 

THOURON  z:  PAUL.     ^ 
Supreme  Court  of  PENNSYIA^AyjA,_I84X^ 
6  Whart.  (Pa.)  615.'' 

Error  to  the  District  Court  of  the  City  and  County  of  Phila- 
delphia. ^  . 

^This  was  an  action  of  account  render  brought  by  Nicholas  E. 
Thouron  and  Henry  Paillet",  trading  under  the  firm  of  N.  E.  Thouron 
&  Co.,  against  Joseph  S.  Paul  and  Eliza  his  wife,  late  Eliza  Clark, 
administratrix  of  i\iaskline  Clark.  The  defendants  pleaded  that  the 
intestate  never  w^as  bailiff  or  receiver,  plene  administravit,  etc. 

The  cause  came  on  for  trial  before  Jones,  J.,  on  the  23d  of  April, 
1838,  when  evidence  was  given  on  the  part  of  the  plaintiffs,  that  on 
the  tenth  day  of  May,  A.  D.  1826,  the  plaintiffs  being  the  owners  of 
certain  silk_^oods  and  other  goods,  in  value  seven  thousand  eight 
hTmdHd^nd  forty-eighf  doTFars'and  eighty-six  cents,  sold  one  half 
of  the  same  to  the  intestate  Maskline  Clark,  and  took  from  him  his 
noterat  six  months,  for  the  same,  under  an  agreement  that  the  goods 
were  to  be  shipped  to  Guayaquil,' in  South  America,  on  their  joint 

•'''  For  the  remedv  in  equity  for  waste  see  Lewis'  Cases  on  Equity  Jurisdic- 
tion, I  ;  I  Ames'  Cases  on  Equity  Jurisdiction  460 ;  Bewes  on  Waste,  166 ; 
Garth  v.  Cotton,  White  &  Tudor's  Leading  Cases  in  Equity,^  80&;  Wtlds  v. 
Lavton,  i  Del.  Ch.  226  (1822);  Phoenix  v.  Clark,  6  N.  J.  £.q.  447  (1847)  ; 
pennvvJininsoiL^  Pa.  382  (1857)  ;  Moses  v.  Johnson,  88  Ala.  517  (1889). 
In  England  tlie~remedies  for  waste,  under  the  Judicature  Act  of  1873,  are  an 
action'for  damages,  for  an  account  and  for  an  injunction;  Judicature  Act  of 
1873,  §  25,  cl.  3;  Annual  Practice  (1914),  P-  1928;  Rules  of  Sup.  Ct.,  Order  50, 
rule  6;  Meu.v  v.  Coblcy,  L.  R.  (1892)  2  Ch.  Div.  253. 

In  most  states  there  are  express  statutory  or  code  remedies  for  waste 
which  sometimes  include  a  double  or  treble  liability  for  damages,  i  Stimson's 
American  Statute  Law,  §§  1332,  1343;  N.  Y.  Code  Civ.  Pro.,  §§  1651-1659; 
Hoolihan  v.  HooUhan,  193  N.  Y.  197;  Cal.  Code  Civ.  Proc,  §  732;  lso)n  v. 
Book,  142  Cal.  666  (1904)  ;  Riipel  v.  Ohio  Oil  Co.,  95  N.  E.  225  (Ind.  1911)- 

•'''See  I  A.  &  E.  Encyc.  of  Law  (ist  ed.)  128,  Title  Account  Render; 
article  by  Prof.  Langdell,  2  Harvard  Law  Rev.  242,  267. 

•'■"'The  statement  of  facts  is  abridged  and  the  arguments  of  counsel  and 
part  of  the  opinion  of  the  court  are  omitted. 


l8o  AtTlONS 

account:  the  sliipmoiit  to  he  uiulcr  the  control  of  the  plaintiff,  and 
the  profit  and  loss  to  he  etiually  divided  hctwecn  theui.  That  the 
shipment  was  accordint;^ly  made  hy  the  plaintiff,  hut  proved  unfor- 
tunate :  and  the  net  loss  to  each  of  the  parties  was  two  thousand  six 
hundred  and  thirty-four  dollars  and  thirty-three  cents.  The  plain- 
tiff's counsel  admitted  that  none  of  the  proceeds  of  the  shipment 
came  into  the  hands  of  the  intestate  Clark,  in  his  lifetime,  or  of  his 
administrators,  since  his  death,  and  that  all  the  ])roceeds  were  re- 
ceived by  the  plaintiffs.  The  i)laintift"'s  counsel  claimed  to  recover 
in  this  suit  the  sum  of  four  thousand  i'ne  hundred  and  twenty  dol- 
lars and  fifty-one  cents,  heinp^  the  amount  of  the  net  loss  on  half  of 
the  shipment,  as  above  mentioned,  with  interest  to  the  day  of  trial, 
givini:^  the  defendant  credit  for  the  payments  made  by  him  and  re- 
ceived by  the  plaintiff,  as  by  an  account  current  produced.  The  plain- 
tiff's counsel  then  closed  his  case.  The  defendant's  counsel  offered 
no  evidence.  The  learned  judge  being  of  opinion  that  the  plaintiffs 
had  given  no  such  evidence,  as  in  law  was  sufficient  to  maintain  the 
action,  ordered  a  judgment  of  nonsuit  to  be  entered.  And  after- 
wards the  court  in  bank  refused  to  set  aside  the  judgment  of  non- 
suit.  The  plaintiff's  then  took  this  writ  of  error. 

Kexxkdy,  J.:  It  seems  to  be  well  settled  that  the  action  of  ac- 
count render  lay  only  at  common  law  against  a  guardfan  in  socage, 
bailiff  or  receiver,  and  in  favor  of  trade  between  merchants,  i  Bac. 
Abr.  tit.  Accompt  (A)  page  32  (Wil.^on's  ed.),  Co.  Lit.  172a.  2  Inst. 
379.  I  Roll.  Abr.  117,  1.  43.  I  Com.  Dig.  tit.  Accompt,  A  i.  Bull. 
N.  P.  127.  And  to  maintain  it,  there  must  be  either  a  privity  in  deed 
'  by  consent  of  tlie  party,  for  against  a  disseisor  or  vvrong-doer  no 
account  doth  lie;  or  a  privity  in  law,  ex  provisione  legis,  made  by 
the  law,  as  against  a  guardian,  etc.  i  Inst.  172a.  But  an  infant 
tenant  in  socage  may  maintain  an  action  of  account  render  against 
a  stranger  who  enters  into  his  land  and  receives  the  profits  thereof ; 
Fitz.  N.  B.  117,  note  a.  Inst.  89  b;  Cro.  Car.  229:  which  would 
rather  seem  to  be  an  exception  to  the  rule  that  requires  privity  to 
maintain  the  action.  The  statute  of  13  Ed.  Ill,  ch.  23,  gave  it  to  the 
executors  of  a  merchant;  the  25  Ed.  Ill,  ch.  5,  to  the  administrators. 
And  afterwards,  the  statute  of  3  &  4  Ann.  ch.  16,  gave  the  right  to 
maintain  it  against  the  executors  and  administrators  of  every  guard- 
ian, bailiff  and  receiver,  and  by  one  joint-tenant,  tenant  in  common, 
his  executors  and  administrators  against  the  other,  as  bailiff,  for 
receiving  more  than  his  share,  and  against  their  executors  and  ad- 
ministrators."'® Now,  upon  examination  in  each  of  these  cases,  it 
will  be  perceived  that  the  action  of  account  render  is  only  main- 


""  Henderson  v.  Jiasun,  17  Ad.  &  El.  70  (1851).  OwiiiR  principally  to 
the  extension  of  equity  jurisdiction,  as  well  as  the  growth  of  assumpsit,  the 
common-law  action  became  nearly  obsolete  in  England  before  the  change 
in  procedure.  Now  a  plaintiff  may  endorse  his  writ  with  a  claim  for  an 
account  and  a  reference  will  be  made  under  Order  XV,  rule  i,  unless  there 
is  a  preliminary  question  to  be  tried.  /;/  i-e  Cvlion,  L.  R.  (1885),  29  Ch. 
Div.  S34. 

In  most  of  the  states  the  action  has  been  abandoned  in  favor  of  the 
Femedy  aflForded  by  equity,  Linton  v.  Walker,  8  Fla.  144  (1858)  ;  Field  v. 
BroTiii,  146  Ind.  293   (1906);   Church  v.  Anti-Kalsomine  Co.,  iiS  Mich.  219 


TIIOURON  V.  PAUL  l8l 

tainable  by  the  plaintiff  against  the  defendant  upon  the  ground  that 
the  latter  has  been  entrusted  with  the  care  of  the  lands  belonging  to 
the  former,  and  had  the  capacity  at  least  to  receive,  if  he  did  not 
actually  receive,  the  rents  and  profits  thereof  for  the  use  of  the 
owner;  or  v/ith  the  management  and  disposition  of  goods,  partly  if 
not  wholly  belonging  to  the  plaintiff,  and  been  in  the  receipt  of  the 
moneys  arising  therefrom  for  the  use  of  the  plaintiff,  either  in  part 
or  in  whole.  Upon  this  ground,  the  ward  has  a  right  to  maintain 
the  action  against  his  guardian  in  socage ;  for  as  Littleton  saith, 
sec.  123,  "such  guardian  in  socage  shall  not  take  any  issues  or  profits 
of  such  lands  or  tenements  to  his  own  use,  but  only  to  the  use  and 
profit  of  the  heir ;  and  of  this  he  shall  render  an  account  to  the  heir 
when  it  pleaseth  the  heir,  after  he  accomplisheth  the  age  of  four- 
teen years."  See  also  i  Inst.  89a,  87b,  88a.  Fitz.  N.  B.  118,  A.  In 
like  manner,  for  the  like  reason,  the  action  lies  against  the  bailiff  of 
the  plaintiff,  by  whom,  as  Lord  Coke  says,  "is  understood  a  servant 
that  hath  administration  and  charge  of  lands,  goods  and  chattels,  to 
make  the  best  benefit  for  the  owner  against  whom  an  action  of  ac- 
count doth  lie  for  the  profit  which  he  hath  raised  or  made,  or  might 
by  his  industry  or  care  have  reasonably  raised  or  made,  his  reason- 
able charges  and  expenses  deducted."  i  Inst.  172a.  So  according 
to  the  same  authority,  it  lies  against  a  receiver  on  the  ground  of  his 
having  received  money  for  the  use  of  the  plaintiff;  as,  "when  one 
receiveth  money  to  the  use  of  another  to  render  an  account ;  but, 
upon  his  account,  he  shall  not  be  allowed  his  expenses  and  charges. 
And  therefore  a  man  can  not  charge  a  bailiff  as  a  receiver ;  because 
then  the  bailiff  should  lose  his  expenses  and  charges."  i  Inst.  172a. 
And  for  this  latter  reason,  it  may  be,  that  a  guardian  shall  not  be 
charged  as  a  receiver,  on  account  of  the  issues  of  the  land,  received 
by  him,  before  his  ward  has  attained  the  age  of  fourteen  years ;  but 
for  other  moneys  received  by  him,  he  may  be  charged  as  receiver. 
Fitz.  N.  B.  118.  See  also  note  (a)  there.  To  the  rule,  however,  that 
a  receiver  shall  not  be  allowed  for  his  expenses  and  charges,  the 
receptor  denarioriim,  in  favor  of  merchants,  and  for  advancement 
of  trade  and  traffic,  seems  to  be  an  exception,  so  that  he  shall  have 
his  expenses  and  charges  allowed,  but  then  it  would  seem  that  he 
shall  account  on  the  other  hand  for  the  profit  he  has  or  might  rea- 
sonably have  received,     i  Inst.  172a."    And  as  between  merchants. 


(1898);  Tilla  V.  Cook,  77  Va.  477  (1883),  and  under  the  system  of  code 
procedure  has  lost  its  identity,  Pico  v.  Columbet,  12  Cal.  414  ( 1859)  ;  Wright 
V.  Wright,  50  How.  Pr.  (N.  Y.)  176  (1879)  ;  Dunn  v.  Johnson,  115  N.  Car.  249 
(1894)  ;  Teasley  v.  Bradley,  iioGa.  497  (1900).  But  in  several  jurisdictions  the 
action  is  still  in  use,  Garrity  v.  Hamburger  Co.,  136  111.  499  (1891)  ;  Kemp  v. 
Merrill,  92  111.  App.  46  (1900);  Bitterling  v.  De^shler^  160  Pa._i  (1894); 
Siccier  V.  Sieger,  209  Pa.  65  (1904)  ;  see  Enterprise  Oil  Co.  V.  National  Tran- 
sit to.,  172  Pa. "421  (1896),  as  to  the  statute  ot  4  Anne;  Hamilton  v.  Conine, 
aOTd".  633  (1868)  ;  Haydcn  v.  Merrill,  44  Vt.  336  (1872)  ;  Black  v.  Nichols, 
68  Maine  227   (1878). 

"  Sturton  V.  Richardson,  13  M.  &  W.  17  (1844)  ;  Sargent  v.  Parsons,  12 
Mass.  149  (1815)  ;  Gibbs  v.  Sleeper,  45  Vt.  409  (1873)  ;  Bredin  v.  Kingland,., 
4  Watts  (Pa.)  420  (1835)  ;  McLeciiLJLJdLiidc^sd  Pa.  146"  (1866). 

A   defendant   charged   with    receiving   a    sum    from   the   plaintiff's   hand 
could  wage  his  law.   Y.  B.  13  &  14  Edw.  Ill  (Roll's  ed.)  289,  pi.  '24. 


l82  ACTIONS 

who  arc  copartners  in  trade,  it  is  also  c|uitc  clear  that  at  common 
law  the  action  of  acconnl  render  can  onl}'  he  maintained  by  one 
a.!j;ainst  the  other,  upon  the  j;round  that  tiie  defendant  has  been  en- 
trnsteil  with  the  goods  helonging  to  iheni,  to  he  disjxjsed  of  by  him 
for  the  common  lienelit  of  both,  or  has  received  moneys  for  the  use 
of  both.  It  is  thus  laid  down  by  Lord  Coke,  i  Inst.  172a,  "If  two 
joint  merchants  occupy  their  stock,  goods  and  merchandise  in  com- 
mon to  their  common  proht,  one  of  them  naming  himself  a  merchant 
shall  have  an  account  against  the  other,  naming  him  a  merchant,  and 
shall  charge  him  as  receptor  denariornm  ipsius  B.  ex  quacunque 
causa  ct  contractu  ad  coinniuJiem  ulUitatem  ipsorum  A.  &  B.  pro- 
vcu'icn'  s'lcut  per  legem  inercatoriani  rationabilitcr  nionstrare  po- 
terit."  And  such  appears  to  be  the  form  and  words  of  the  writ: 
"We  command  you  (the  sheriff),  that  you  summon  A,  merchant, 
that  justly,  etc.,  he  render  to  B,  merchant,  a  reasonable  account  for 
the  time  in  which  he  was  receiver  of  the  money  of  him  the  said  B, 
from  whatever  cause  and  contract  coming,  to  the  common  ])rofit  of 
them  the  said  A  and  B,  as  by  the  law  of  merchants  he  may  reason- 
ably show  that  he  ought  to  render  to  him,"  etc.  Fitz.  N.  B.  117  D."'^ 
The  receipt  of  money,  therefore,  on  their  joint  account  by  the  de- 
fendant, appears  to  be  the  \'ery  gist  of  the  action  of  account  render 
between  merchant  and  merchant,  or  copartners  in  trade ;  and  such 
appears  to  have  been  the  imderstanding  and  decision  of  this  court 
many  years  since,  in  James  v.  Brozvn  (i  Dall.  339).  This  case,  I  be- 
lieve, has  ever  been  regarded  here  as  laying  down  the  ground  upon 
which  the  action  may  be  maintained  by  a  partner  in  trade  against  his 
copartner.  That  such  has  ever  been  considered  in  luigland  the  true 
ground  of  the  action  in  such  case,  is  evidenced  further  not  only  by 
the  form  of  the  writ  already  noticed,  and  the  declaration  which  fol- 
lows the  form  of  the  writ,  but  likewise  by  the  form  of  the  judgment. 
The  judgment  is,  that  the  defendant  account  with  the  plaintiff. 
Godfrey  v.  Saunders  (3  Wils.  88,  89 ).-^'' 

But  it  appears  from  the  evidence  adduced  in  this  case  by  the 

^l)laintiffs  themselves  and  their  own  statement,  that  the  amount  of 

money  claimed  by  them  to  be  recovered  from  the  defendant,  as  his 

proportion  of  the  net  loss,  which  accrued,  as  they  say,  in  transacting 

their  partnership  business,  \vas,  in  truth,  the  lialancc  of  a  debt  owing 


'•''Jamcxx.  Brflzcnc.  i  Dall.  (Pa.)  339  (1788);  A>%  v.  Kelly.  3  Barb. 
(N  TT"4T9^(i848)T  IVood  v.  Morrow,  25  Vt.  340  (1853);  Home  v.  In- 
(jrahani,  125  111.  ig8  (1888). 

"In  this  action  there  are  two  judi;ments,  first,  on  the  preliminary  trial 
of  the  ripht  to  an  accounting  the  judgment  is  that  defendant  account. 
Auditors  are  tlien  appointed  and  upon  their  report  a  second  and  final  judg- 
ment is  entered  for  the  balance  found  due.  Qrcii^juXMUill^,  5  Binney  (Pa.) 
.S63  (1813);  Closson  V.  Means,  40  Maine  337  (1835);  Black  v.  Nieliols,  68 
Maine  227  (1878)  ;  Partridge  v.  Ryan,  134  111.  247  (1890)  ;  Lee  v.  Yanaway, 
52  111.  App.  23  (1893). 
)C  In  Pennsylvania,  the  Act  of  April  4,  1831,  P.  L.  492,  §  i,  permits  the 
/  jury  before  whom  the  action  is  tried  to  settle  the  accounts  of  the  parties. 
The  Act  of  October  13,  1840,  P.  L.  7,  §  18,  provides  that  after  it  shall  have 
been  found  that  defendant  is  liable  to  account,  the  court  may  either  appoint 
auditors  or  direct  a  jury  to  be  impaneled  to  settle  the  accounts. 


TIIOUROX  V.   PAUL  1 83 

by  the  defendant  to  them  created  by  the  purchase  of  goods  from 
them,  and  was  not  to  be  affected  in  any  way  by  the  business  of  the 
partnership  or  its  result,  whether  it  turned  out  to  be  profitable  or 
otherwise  to  the  parties,  and  therefore  could  not  upon  the  principles 
already  laid  down  for  the  maintenance  of  the  action  of  account  ren- 
der be  recovered  in  it.  As  well  might  an  account  stated  between  the 
parties  be  made  the  subject  of  recovery  in  such  action.  But  an  ac- 
count stated,  showing  a  balance  due  b}-  one  partner  to  the  other,  upon 
a  final  settlement  of  all  their  partnership  transactions,  accompanied 
with  an  express  promise  to  pay  it,  wovtld,  I  take  it,  be  a  bar  of  itself 
to  an  action  of  account  thereafter  to  recover  such  balance.  It  would, 
as  it  appears  to  me,  be  good  evidence  to  support  the  plea  of  plene 
computavit,  which  is  considered  a  good  plea  in  bar  to  the  action. 
Godfrey  v.  Saunders  (3  Wils.  Rep.  113).  Bac.  Abr.  (by  Wilson) 
38,  tit.  Accompt.  Two  notes  of  hand  were  here  given  by  the  de- 
fendant to  the  plaintiffs,  containing  a  promise  on  his  part  to  pay  the 
debt  created  by  the  purchase  of  the  goods ;  which  would  be  good 
evidence,  in  an  action  of  assumpsit  brought  by  the  plaintiffs  against 
the  defendant,  upon  an  account  stated,  to  show  that  they  had  had  an 
account  between  them,  and  that  the  sum  of  the  notes  was  thereupon 
found  to  be  the  amount  of  money  coming  from  the  defendant  to  the 
plaintiffs.  2  Stran.  719.  Chitty  on  Bills,  366.  Clayton  v.  Gosling 
(5  B.  &  C.  360)  ;  Higlnnore  v.  Primrose  (5  M.  &  S.  65).  Seeing, 
then,  these  notes  would  be  good  evidence  to  prove  an  account  stated, 
the  inevitable  conclusion  would  seem  to  be,  that  they  would  be  good 
evidence  also  to  prove  the  plea  of  plene  computavit.  It  is  also  clear 
that  the  money  mentioned  in  the  notes  was  to  be  paid  for  the  pur- 
pose of  launching  the  partnership ;  and  if  not  paid  according  to  the 
tenor  thereof,  was  recoverable  in  an  action  of  assumpsit.  Venning  v. 
Leckie  (13  East  7).  And  in  no  other  form  of  action,  excepting  that 
or  debt,  do  I  conceive  that  it  was  recoverable.  For  it  was  the  price, 
and  a  sum  certain,  that  was  to  be  paid  by  the  defendant  to  the  plain- 
tiffs, at  all  events,  for  the  goods  purchased  by  him  of  them ;  and 
could  not  be  said  to  have  arisen  out  of  the  partnership  entered  into 
between  them."'^' 

At  first,  I  misapprehended  the  facts  of  this  case,  and  took  up  the 
notion  that  the  claim  of  the  plaintiffs  against  the  defendant  in  it, 
was  founded  upon  their  partnership  transactions ;  and  under  that 
misapprehension,  conceived,  that  although  the  plaintiffs  could  not 
maintain  the  action  of  account  render,  according  to  the  rules  of  the 
common  law  on  the  subject,  yet  they  might  be  permitted  to  have  the 
benefit  of  such  action  with  us,  as  a  substitute  for  a  bill  in  equity; 
seeing  we  had  no  court  of  chancery  to  resort  to,  in  cases  of  compli- 
cated accounts,  for  the  purpose  of  obtaining  a  settlement  of  them ; 
where,  by  means  of  auditors,  they  could  be  examined  and  adjusted 
with  much  more  accuracy  than  by  a  jury."'   But  upon  a  more  full  in- 


/ 


""Accord:  Hnlmes  v.  IVnbrlh,  90  Pa.  D.  R.  784  (igii) .  On  the  other 
hand,  assumpsit  will  not  He  where  the  duty  of  the  agent  is  to  account  only, 
until  an  account  has  been  settled.  R reside  v.  Rcesidc.  49  Pa.  322  (1865)  ; 
Bxirtpn  V    Tf^'nc^,  27  Pa.   Super.  Ct.  626   (1905)^ 

"Equity  jurisdiction   in   matters   of   account   was  conferred   on   the   Su- 


} 


184  Actions 

vcstigatioii  of  the  facts  of  the  case,  and  the  principles  of  equity  as 
well  as  those  of  law  applica))le  to  it,  I  am  now  satisfied  that  the  plain- 
titVs  can  not  be  considered  as  ha\inq^svifncTent  cause  to  entitle  them 
to  redress,  in  such  form  of  action,  upon  either  legal  or  equitable  prin- 
ciples. It  is  i>eihaps  true,  that  Lord  Ilardwicke  may  have  thought 
that  any  matter  of  account,  growing  out  of  privity  of  contract  be- 
tween iKirties,  was  cognizable  by  a  court  of  etpiity,  when  he  said  in 
Billion  V.  Hydf  (i  Atk.  127,  128),  "It  is  a  matter  of  contract  and 
account;  and  consetiuently  a  pro])er  subject  for  the  jurisdiction  of 
this  court."  And  it  may  possibly  be  that  Lord  Redesdale  entertained 
a  similar  opinion,  when  he  said,  in  O'Connor  v.  Spaight  (i  Schoales 
&  Lef.  309),  "The  ground  on  which  I  think  this  is  a  proper  case  for 
equity  is,  that  the  account  has  become  so  complicated  that  a  court 
of  law  would  be  incompetent  to  examine  it  upon  a  trial  at  nisi  prius, 
with  all  necessary  accuracy;  and  it  could  appear  only  from  the  re- 
sult of  the  account,  that  the  rent  was  not  due.  This  is  a  principle  on 
which  courts  of  equity  constantly  act,  by  taking  cognizance  of  mat- 
ters which,  though  cognizable  at  law,  are  yet  so  involved  wath  a 
complex  account  that  it  can  not  properly  be  taken  at  law ;  and  until 
the  result  of  the  account,  the  justice  of  the  case  can  not  appear." 
But  it  must  be  observed,  that  in  each  of  these  cases  there  were 
mutual  claims  and  accounts,  arising  from  contract  and  a  course  of 
dealing  between  the  parties,  that  had  been  carried  on  through  a  series 
of  years;  and  that  the  justice  of  the  claim  of  the  plaintiffs  here  does 
not  necessarily  depend  upon  the  result  of  a  final  settlement  and  ad- 
justment of  the  partnership  accounts.  That  courts  of  equity,  how- 
ever, will  take  cognizance  of  cases  where  mutual  accounts  exist 
between  the  parties,  founded  in  privity  of  contract,  is  a  doctrine 
which  is  recognized  in  both  the  English  and  American  courts,  and 
acted  upon  without  any  limitation  or  restriction  whatever.  Deit- 
li'iddie  v.  Bailey  (6  Ves.  140,  141)  ;  Wells  v.  Cooper,  cited  there; 
Courtney  v.  Godshall  (9  Ves.  473)  ;  Porter  v.  Spencer  (2  John.  Ch. 
Rep.  171)  ;  I  Story's  Equi.  439,  pi.  457,  and  other  cases  there  re- 
ferred to."-  But  it  would  seem,  as  if  courts  of  equity  will  not  enter- 
tain jurisdiction  in  matters  of  account,  where  the  accounts  to  be 
examined  are  all  on  one  side  only,  and  no  discovery  is  wanted  for  the 
purpose  of  supporting  the  account.  Barker  v.  Dacie  (6  Ves.  687, 
688)  ;  Frietas  v.  Don  Santos  (i  Younge  &  Jerv.  574)  ;  Courtney  v. 
Godshall  (9  Ves.  473)  ;  i  Story's  Equi.  439,  pi.  558,  and  other  cases 
cited  by  him  in  the  margin.    In  such  case,  Mr.  Justice  Story,  in  his 

preme  Court  and  the  Common  Pleas  of  Pliiladelphia  by  the  Act  of  June  13, 
1840,  P.  L.  666,  §  39,  and  by  the  Act  of  October  13,  1840,  P.  L.  7,  §  19,  upon 
the  Supreme  Court  and  all  the  courts  of  common  pleas  in  partnership  ac- 
counts and  such  other  accounts  as  had  theretofore  been  settled  by  the  action 
of  account  render. 

""Equity  will  take  jurisdiction  on  the  ground  of  account,  notwithstand- 
ing that  the  accounting  involved  is  on  one  side  only,  if  it  is  so  complicated 
as  seriously  to  embarass  the  remedy  at  law  and  in  cases  where  discovery  is 
needed  and  is  sought.  But  it  will  not  take  jurisdiction  where  there  is  no 
relation  of  trust  and  the  accounting  is  not  complicated  and  is  merely  a  basis 
for  ascertaining  damages."  Holland  v.  Hallahan,  211  V^!l__^22,  (1905).  See 
also,  .5ii^^£r_v.  ^Fonrff  r^i4' Pa.  117  (1906);  Fischer  v.  Riehl,  2ig  Pa.  505 
(1908);  Paton  V.  fat  on,  156  Pa.  49  (1893).   ^ 


THOURON  V.  PAUL  185 

valuable  Commentary  on  Equity  Jurisprudence,  vol.  i,  page  440,  pi. 
458,  lays  it  down  tliat  "if  no  discovery  is  asked  or  required  by  the 
frame  of  the  bill,  the  jurisdiction  will  not  be  maintainable.  And  a 
fortiori  when  there  are  no  mutual  demands,  but  a  single  matter  on 
one  side,  and  no  discovery  is  required,  a  court  of  equity  will  not  en- 
tertain jurisdiction  of  the  suit,  though  there  may  be  payments  on 
the  other  side,  which  may  be  set  off;  for  in  such  case,  there  is  not 
only  a  complete  remedy  at  law ;  but  there  is  nothing  requiring  the 
peculiar  aid  of  a  court  of  equity  to  ascertain  and  adjust  the  claim.  "\ 
To  found  the  jurisdiction,  in  case  of  a  claim  of  this  sort,  there  should 
be  a  series  of  transactions  on  the  one  side,  and  of  payments  on  the 
other;"  for  which  he  cites  Wells  v.  Cooper,  cited  in  Dinwiddie  v. 
Bailey  (0  Ves.  139);  Foster  v.  Spencer  (2  John.  Ch.  Rep.  171); 
Moones  v.  Lewis  (12  Price,  Rep.  502)  King  v.  Rossett  (2  Younge 
&  Jerv.  33)  ;  Madd.  Ch.  Prac.  70,  71.  Now  this  doctrine  is  directly 
applicable  to  the  case  before  us,  and  goes  to  show  that  the  plaintiffs 
could  not  demand  an  account  even  in  a  court  of  equity  against  the 
defendant.  This  being  the  case,  it  naturally  follows  that  the  present 
action  can  not  be  sustained  upon  equitable  principles.  It  may  be 
observed,  however,  that  Lord  Chief  Baron  Comyns,  in  his  Digest, 
tit.  Chancery,  A  2,  declares  that  chancery  will  oblige  any  one  to  give 
an  account  for  money  received  by  him.  But  admitting  this  position 
to  be  correct  to  its  fullest  extent,  and  that  it  is  not  necessary  that 
there  should  be  mutual  accounts,  or  a  requisition  of  discovery,  when 
the  account  is  all  upon  one  side,  as  the  current  of  authorities  on  the 
subject  would  seem  to  evince,  in  order  to  give  chancery  jurisdiction 
over  the  case,  still  it  goes  to  prove  that  chancery  will  not  take  cog- 
nizance of  the  matter,  unless  the  respondent  be  charged  by  the  com- 
plainant with  having  received  money  or  something  else  that  he  has 
converted  into  money  for  the  use  of  the  complainant ;  which  does  not 
exist  in  the  case  under  consideration.  Upon  this  view,  it  appears 
that  the  court  below  were  right  in  nonsuiting  the  plaintiffs ;  and  the 
judgment  therefore  ought  to  be  affirmed. 
Judgment  affirmed.'^" 


•^'Compare:  Woolley  v.  Osborne,  39  N.  J.  Eq.  54  (1884);  Blodgett  v. 
Foster,  114  Mich.  688  (1897)  ;  Gleason,  &c.,  Co.  v.  Hoffman,  168  111.  25 
(1897)  ;  McMnllen  L.  Co.  v.  Strother,  136  Fed.  295  (1905)  ;  Miller  v.  Russell, 
224  111.  68  (1906)  ;  Nohle  v.  Burnett  Co.,  208  Mass.  75  (1911),  with  Walker 
V.  Brooks,  125  Mass.  241  (1878)  ;  Uhlman  v.  New  York  L.  I.  Co.,  109  N.  Y. 
421  (1888)  ;  Rutherford  v.  Alyea,  54  N.  J.  Eq.  411  (1896)  ;  Ellis  v.  South- 
western L.  Co.,  102  Wis.  409  (1899);  Fuller  v.  Davis,  184  111.  505  (1900); 
Tennessee,  &c.,  Co.  v.  Fitzgerald,  140  111.  App.  430  (1908)  ;  Mersereau  v. 
Bennett,  62  Misc.  (N.  Y.)  356  (1909)  ;  Grieb  v.  Equitable  Soc.,  189  Fed.  498 
(1911)  ;  Franklin  v.  Crane,  80  N.  J.  Eq.  509  (1912).  See  further  i  Ames' 
Cases  on  Equity  Jurisdiction  442. 


V         iSO  ACTIONS  -  -  --t^>t: 

(f)   Covenant. 

M'XOV   :■.    WIIICKLI'.K.  ^ 

SuPKF.MK  Court  of  Ai.MiANfA.  1838. 

6  Porter  (Ala.)   201. 

Action  of  covenant.  The  plaintiffs,  Wlicelcr  and  M'Cdrmick, 
declarcil  against  the  defendant  M'Voy  on  an  indenture  sealed  by  the 
parties  wherein  the  plaintiffs  agreed  within  live  months  to  erect  t\yo 
three-storv  brick  buildings  for  the  defendant  in  the  city  of  Mobile 
according  to  certain  specifications  in  a  workmanlike  manner,  for 
which  defendant  agreed  to  pay  eight  thousand  six  hundred  dollars. 
The  plaintiffs  further  averred  that  they  fully  performed  their  con- 
tract except  that  at  the  request  of  the  defendant  they  made  divers 
alterations  in  the  plans  not  provided  for  in  the  indenture  and  com- 
lileted  the  Iniildings  as  soon  as  they  could  be  com]-)letcd,  which  was 
two  months  after  the  time  agreed,  but  the  defendant  had  failed  to 
pay  the  sum  of  twenty-three  hundred  dollars,  the  last  instalment 
of  the  contract  price.  The  defendant  demurred  to  the  declaration, 
which  demurrer  was  overruled.  There  was,  subsequently,  a  trial 
and  a  verdict  rendered  for  plaintiff  upon  which  judgment  was  en- 
tered. The  defendant  took  a  writ  of  error  assigning  as  error  the 
overruling  of  the  demurrer.''* 

Collier,  C.  ]. :  Several  questions  were  raised  in  the  circuit  court, 
upon  the  demurrers  to  the  declaration  and  pleas,  w-hich  w^ere  so  dis- 
posed of,  as  to  make  it  necessary  for  an  issue  of  fact  to  be  tried  by 
the  iurv,  who  found  a  verdict  for  the  plaintiffs,  on  which  judgment 
was"  rendered.  At  the  trial,  a  bill  of  exceptions  was  taken  by  the 
defendant  below,  who  prosecutes  a  writ  of  error  to  this  court,  and 
assigns  the  judgment  on  the  demurrers,  and  the  decision  of  the  court 
excepted  to,  as  causes  for  reversal. 

We  shall  only  consider  the  sufficiency  of  the  declaration,  which 

])resents  the  question,  whether  an  action  of  covenant  will  lie  upon  an 

agreement  under  seal   (to  perform  certain  work),  which  has  been 

modified,  or  the  time  of  performance  enlarged  by  parol. 

.        Covenant  can  only  be  maintained  upon  a  writing  under  seal.''^ 

/  If  a  contract  be  unattested  by  a  seaTT  or  Is  unwntfen.  the  action  by 

I  which  redress  can  be  had,  for  a  non-])erformance,  is  debt  or  assump- 

'  '■'  The  statement  of  facts  is  abridged. 

'■'Covenant  can  not  be  maintained  except  on  a  deed.  Ciitts  v.  I-rosf, 
Smith  (K.  H.)  309  (1813)  ;  Picrson  v.  Pierson,  6  N.  J.  L.  168  (1822)  ;  Bildcr- 
hack  V.  Pounder,  7  N.  J.  L.  64  (1823)  ;  Moore  v.  Jones,  2  Ld.  Raym.  1536 
(1728);  Berkeley  v.  Hardy,  s  B.  &  C.  355  (1826);  Andrezvs  v.  Ilerriott, 
4  Cow.  (X.  Y.)  508  (182s);  LeRoy  v.  Beard,  8  How.  (U.  S.)  4.SI  (1850); 
Davis  V.  J  add,  6  Wis.  85  (1857)  ;  McManns  v.  Cassidv.  66  Pa.  260  (1870)  ; 
Eu'ings  v.  Gordon.  49  N.  H.  444  ( \^o)  ;  Trntl  v  Spgtts^j  Pa.  339  (1878)  ; 
Manning  v.  Perkins,  86  Maine  419,  29  Atf.  11 14  (.\^9A)  \  Simpson  v.  Ritchie, 
89  Maine  299  (1913).  It  is  immaterial  whether  the  covenant  be  implied 
or  express.  "If,  from  the  specialty  executed  by  the  parties,  the  law  implies 
such  a  covenant,  it  is,  as  respects  the  form  of  action  thereon,  as  if  it  were 
incorporated  therein  in  terms."  Wilson  v.  Griszi'old,  9  Blatch.  (U.  S.)  267 
C1871),  and  see  Luchv  v.  Roz.-sec,  i  A.  K.  Mar.  (Ky.)  217  (1818). 


m'voy  v.  wheeler  187 

sit,  or  either,  according  to  the  subject-matter.  If  new  terms  are  in- 
troduced into  a  contract,  other  duties  imposed,  or  another  day  pro- 
vided for  its  consummation,  it  is  clear,  that  the  original  contract  does 
not  remain  unimpaired,  so  that  an  action  would  lie  for  a  breach 
of  its  stipulations. — If  then,  no  action  could  be  maintained  upon  the 
original  contract,  Vv-hen  thus  modified,  we  think  it  follows  that  the 
present  action  is  misconceived.  For  though  the  modifications  are 
set  out  in  the  declaration,  yet  they  are  to  be  shown  by  parol,  and  can 
not,  according  to  the  premises,  we  have  assumed,  be  made  the  basis, 
either  in  whole  or  in  part  of  an  action  of  covenant. 

The  case  of  Littler  v.  Holland  [3  Term  Rep.  590]  was  an  action 
of  covenant,  upon  an  agreement  under  seal,  to  build  two  houses  by 
a  certain  day.  It  appeared  on  the  trial,  that  the  time  of  performance 
was  enlarged  by  parol,  and  that  the  houses  Avere  built  within  the 
enlarged  time.  This  evidence,  it  was  held,  did  not  support  the  alle- 
gation in  the  declaration,  and  the  plaintiff  was  nonsuited. 

So,  in  Brovm  v.  Miller  [3  Term  Rep.  590]  an  action  of  debt  was 
brought  on  a  bond  to  submit  to  arbitration.  The  condition  limited 
the  time  for  the  arbitrator  to  make  his  award.  The  declaration 
alleged  that  the  time  was  enlarged  by  mutual  consent,  and  that  the 
award  was  made  within  that  time.  On  demurrer,  it  was  determined, 
that  the  remedy  on  the  bond  was  gone,  by  the  failure  to  make  the 
award  Vv^itliin  the  time  contemplated  by  its  condition.  To  the  same 
effect,  also,  is  the  case  of  Freeman  v.  Adams  [9  Johns.  Rep.  115]. 

In  Philips,  et  al.  v.  Rose  [8  Johns.  Rep.  392],  the  plaintiff  agreed 
to  build  an  oil-mill  within  a  prescribed  time,  which  was  enlarged  by 
parol,  and  the  work  completed  within  the  enlarged  time. — The  court 
held  that  evidence  of  the  enlargement  would  not  support  the  declara- 
tion. And  in  Jezvell,  et  al.  v.  ScJiroeppel  [4  Covv'en  565],  the  court 
consider  the  law  as  settled,  "that  the  plaintiffs,  inasmuch  as  they  had 
not  performed,  within  the  time  stipulated  by  the  original  contract, 
could  not  recover  upon  the  covenants  contained  in  it.  They  could 
not,  in  such  an  action,  give  evidence  of  an  extension  of  the  time. 

In  Langzuorthy  v.  Smith,  [2  Wend.  587]  the  Supreme  Court  of 
New  York  reaffirm  the  previous  decisions  of  that  court,  on  the 
point,  and  consider  it  as  beyond  doubt,  that  a  parol  agreement  to 
enlarge  the  time  for  the  performance  of  covenants,  is  good;  and 
that  by  an  enlargement,  the  remedy  upon  the  covenant  itself,  is  lost, 
and  must  be  sought  upon  the  agreement  enlarging  the  time  of  the 
performance. 

In  the  case  at  bar,  the  declaration  shows,  that  the  contract 
was  so  materially  varied,  and  the  labor  of  the  defendants  so  greatly 
increased,  that  they  could  not  perform  it  until  several  monUis  after 
thTexpiration  of  the  day  therefor  appointed.  It  will,  therefore,  fol- 
low, that  the  action  can  not  be  maintained,  and  that  the  plaintiffs 
must  resort  to  their  remedy  upon  the  parol  agreement;  making  the 
coveharit/so  far  as  material,  inducement  to  the  action. 

The  judgment  is  reversed.'''^ 

°° Accord:  Sherzvin  v.  Rut.  &  B.  R.  Co.,  24  Vt.  347  (1852);  Ravinvid 
V.  Fisher,  6  Mo.  29  (1839)  ;  Manuel  v.  Campbell,  3  Ark.  324  (1840)  ;  Phillips 
&  C.  Co.  V.  Seymour,  91  U.  S.  646  (1875)  ;  P'icary  v.  Moore,  2  Watts  (Pa.) 


l88  ACTIONS 

TAIT  ■::  ATKINSON. 

CoL'KT  OF  Queen's  Bench,  Upper  Canada,  1845. 

3  U.  C.  Q.  B.  152. 

Tlic  plaintiffs  declare  specially  in  assumpsit,  for  the  nonpayment 
by  the  defendant  of  a  certain  sum  of  money  awarded  to  the  plain- 
tiffs; the  award  was  given,  as  averred,  in  accordance  with  the  terms 
of  a  written  instrument  under  seal,  recited  at  length  in  the  declara- 
tion ;  no  new  consideration  apart  from  the  deed  to  support  the  prom- 
ise was  alleged. 

The  defendant  demurs,  on  the  ground  that  the  action  should 
have  been  covenant,  and  not  assumpsit. 

Robinson,  C.  J.,  delivered  the  judgment  of  the  court. 

We  are  of  opinion  that  this  action  is  strictly  founded  on  the 
covenant ;  upon  which  therefore  the  plaintiffs  should  have  sued, 
and  not  in  assumpsit.  The  case  of  Barber  v.  Harris^''  is  much  in 
point.  No  new  consideration  is  stated  for  supporting  an  assumpsit, 
apart  from  the  deed.  What  the  parties  had  stipulated  for  in  that 
instrument  w^as,  that  the  house  should  be  paid  for  to  the  tenant  at 
the  expiration  of  the  term,  after  being  valued  by  persons  appointed 
by  them  respectively ;  they  did  appoint  persons  to  value,  and  the  val- 
uation was  made  by  those  persons,  and  adopted  and  assented  to  as 
the  value,  as  the  plaintiff's  statement  of  his  case  shows.  All,  there- 
fore, had  taken  place  which  was  necessary  to  enable  the  plaintiffs  to 
sue  under  the  covenant;  and  we  see  no  difficulty  on  account  of  the 
valuation  having  been  made  on  a  later  day  than  had  been  at  first 
agreed  on.  It  would  not  have  been  necessary  to  state  any  day  in  the 
declaration  when  the  appraisers  were  to  determine  tlie  value ;  and  it 
became  immaterial,  as  the  value  had  been  ascertained  by  referees, 


451  (1834)  ;  Luciani  v.  Insurance  Co.,  2  \Miart.  (Pa.'LJL67  (1836);  Lehigh^ 
C.  &L  A',  XZa^jy.  tfartan,  ^7  Pa.  4'A)  ( 1856)  ;  Carrici^.  Dilworth,  59  Pa.  406" 
(1868).  But  otherwise  where  the  additional  acts  are  in  pursuance  of  the 
terms  of  the  speciaUy  itself.  Potts  v.  Point  Pleasant  Land  Co.,  49  N.  J.  L.  411 
(1887)  ;  Ramsburg  v.  McCahan,  3  Gill.  (Md.)  341  (1845)  ;  Fry  v.  Talbot,  106 
!NId.  43  (1907).  Covenant  will  lie  on  a  specialty,  although  not  fully  per- 
formed if  strict  performance  is  prevented  by  or  waived  by  defendant. 
District  of  Columbia  v.  Camden  Iron  Works,  l8l  U.  S.  453  (1901)  ;  il/o«- 
ocacy  B.  Co.  v.  American  I.  B.  M  Co.^  83  Pa.  517  (1877).  It  has  been  held" 
that  covenant  would  lie  on  a  sealed  instrument,  although  the  time  of  per- 
formance had  been  extended  by  parol,  if  the  breaches  assigned  went  only  to 
the  manner  of   performance.     Crane  v.   Maynard,   12   Wend.    (N.   Y.)    408 

Even  in  jurisdictions  that  have  abolished  the  distinctions  between  forms 
of  actions  it  sometimes  becomes  necessarj-  to  determine  what  the  action 
would  have  been  before  the  code ;  as  where  the  statute  of  limitations  is  to 
be  applied.     Hayden  v.  Patterson,  39  Colo.  15  (1906). 

In  Jerome  v.  Ortinan,  66  Mich.  668,  33  N.  W.  759  (1887),  it  was  held 
that  under  a  statute  providing  that  no  deed  should  be  deemed  invalid  for 
want  of  a  seal,  covenant  would  lie  on  an  instrument  signed  but  not  sealed 
which  would  otherwise  have  been  a  deed.  Accord  :  Steele  v.  Curie,  4  Dana 
(Kv.)  381  (1863;  ;  Graves  v.  Sniede's  Admr.,  7  Dana  (Ky.)  344  (1838). 

'■  \   P.  &  D.  360. 


MITCHELL  V.   Ji'nABB  189 

with  the  consent  of  both  parties,  and  subsequently  adopted  as  the 
vahie.*'^ 

Judgment  for  defendant  on  demurrer. 


/^ 


(g)   Debt.     .    ^' 
MITCHELL  V.  McNABB. 


Supreme  Judicial  Court  of  Maixe,  1870. 
58  Maine  506. 


On  exceptions  to  the  ruhng  of  Goddard,  J.,  of  the  Superior 
Court  for  the  county  of  Cumberland. 

Debt,  "for  that  the  said  defendant,  at  said  Portland,  on  the  30th 
day  of  May,  A.  D.  1870,  by  his  writing  obligatory  of  that  date, 
sealed  with  his  seal  and  here  in  court  to  be  produced,  therein  sold  to 
the  plaintiff  the  good-will  of  his  business  and  therein  agreed  not  to 
carry  on  the  boot  and  shoe  business  in  the  city  of  Portland  for  one 
year  from  tlie  date  thereof.  Yet  the  said  defendant,  not  regarding 
his  said  agreement,  did  again  commence  the  boot  and  shoe  business 
in  said  city  of  Portland,  on  the  first  day  of  July  thereafter,  and  hath 
continued  to  carry  on  the  boot  and  shoe  business  in  said  city  of  Port- 
land, from  said  first  day  of  July  to  the  day  of  the  purchase  of  this 


•^  Since  covenant  lies  for  the  breach  of  a  promise  under  seal  and  assump- 
sit for  the  breach  of  a  simple  promise  it  is  evident  that  they  are  not  con- 
current remedies.  Bulstrode  v.  Gilburn,  2  Stra.  1027  (1736)  ;  Tonssaint  v. 
Martinnant,  2  T.  R.  100  (1787);  Codman  v.  Jenkins,  14  Mass.  93  (1817)  ; 
Wood  v.  Edwards,  19  Johns.  (N.  Y.)  205  (1821)  ;  Schlencker  v.  Moxsy,  3 
B.  &  C.  789  (1825);  Bahcr  v.  Harris,  9  Ad.  &  El.  532  (1839);  Byrd  v. 
Knighton,  7  Mo.  443  (1842);  Myrick  v.  Slason,  19  Vt.  121  (1847);  Mc- 
Manus  &  Henry  v.  Cassidy.  66  Pa.  260  (1870)  ;  McKay  v.  Darling,  65  Vt. 
639,  27  Atl.  324  (1893)  ;  Conroy  v.  Equitable  Accident  Co.,  27  R.  I.  467 
(1906);  Drezi'  v.  Western  Union  Tel.  Co.,  iii  Maine  346  (1913).  But  a 
specialty  may  be  evidence  in  assumpsit.  Varney  v.  Bradford,  86  Maine  510, 
30  Atl.  115  (1894);  Baldwin  v.  Emery,  89  Maine  496,  36  Atl.  994  (1897); 
and  see  Liickey  v.  Rozvzcc,  i  A.  K.  Mar.  (Kv.)  295  (1818)  ;  Marker  v.  Ken- 
rick,  13  C.  B.  188  (1853). 

Where  a  specialty  contained  a  promise  to  pay  a  sum  certain  covenant 
was  usually  concurrent  with  debt  although  the  latter  action  was  preferred. 
Anon.  3  Leon  119  (1585)  ;  Chawner  v.  Bozves,  Goodb.  217   (1613)  ;  Frcre  v. 

,  Style,   133   (1648)  ;  Lozve  v.  Peers,  4  Burr.  222s   (1768)  ;  Harrison  v. 

Wright,  13  East  343  (1811);  Huddle  v.  Worthington,  i  Ohio  423  (1824); 
Taylor  v.  Wilson,  27  N.  Car.  214  (1844)  ;  Wetumpka,  &c.,  R.  Co.  v.  Hill, 
7  Ala.  772  (1845)  ;  A^^w  Holland  T.  Co.  v.J^ancastcr  Co^,  71.  Pa.  442  (1872)  ; 
Outtozvn  V.  Dulin,  72  Md.  536,  2o'~AiT^l34  (1890).  Covenant  alone  was 
proper  where  the  specialty  called  for  the 'performance  of  something  other 
than  the  payment  of  a  liquidated  sum.  Watson  v.  Nairy,  i  Bibb.  (Ky.)  356 
(1809)  ;  Scott  v.  Conover,  6  N.  J.  L.  223  (1822)  ;  Wilson  v.  Hickson,  i 
Blackf.  (Ind.)  230  (1822);  Jackson  v.  Waddill,  i  Stew.  (Ala.)  579  (1828); 
Sims  V.  Whitlock,  5  Ark.  103  (1843);  Fortcnhury  v.  Tunstall.  5  Ark.  263 
(1843)  ;  Haynes  v.  Lucas,  50  111.  436  (1869)  ;  Pox  River  Co.  v.  Reeves,  68 
Til.  403  (1873)  ;  Garland  v.  McDonald,  41  U.  C.  Q.  B.  573  (1877)  ;  Morgan 
V.  Guttenberg,  40  N.  J.  L.  394  (1878). 


190  A  IT  IONS 

writ.  And  the  plaintiff  avers  tliat  the  said  defendant,  by  not  keeping 
his  said  agreement,  has  damaged  Iiini  in  his  liusiness  the  sum  of  two 
hmulred  dollars." 

To  this  deelaration  the  defendant  tiled  a  general  demurrer 
which  the  ])lainlilT  joined.  The  presiding  judge  sustained  the  de- 
murrer and  adiudged  the  declaration  had;  whereuiion  the  plaintiff 
alleged  exceptions."'' 

Appleton,  C  .J.:  This  is  an  action  of  debt.  The  writ  is  dated 
October  14,  1870.  The  declaration  sets  forth  an  agreement,  under 
seal,  signed  by  the  defendant,  in  and  by  which  he  "agreed  not  to 
carry  on  the  boot  and  shoe  business  in  the  city  of  Portland  for  one 
year,"  from  May  31,  1870,  and  an  averment  that  from  the  first 
dav  of  July  he  "continued  to  carry  on  the  boot  and  shoe  business  in 
said  city  of  Portland  to  the  day  of  the  purchase  of  this  writ."  To 
this  th.e'  defendant  demurred,  the  demurrer  was  sustained,  and  the 
]->laintiif  excepted.  The  ciuestion  presented  is  whether  debt  is  main- 
tainable. 

The  declaration  sets  forth  no  promise  to  pay  any  money  under  any 
terms  orlcdndi'tions,  but  sunply  an  agreement  to  abstain  from  sell- 
ing boots  and  shoes  at  a  particular  place  and  for  a  stipulated  time, 
and  a  violation  of  such  agreement.  The  damages  in  such  case  must 
obviously  be  uncertain  and  unliquidated. 

'  Debt  lies  when  one  is  entitled  to  receive  a  certain  and  licjuidated 
sum  of  money,  or  in  case  of  a  bond  for  the  payment  of  money,  or 
the  performance  of  some  acFunder  a  penalty,  or  for  goods  sold  and 
•delivered,  etc.  "Debt,"  remarks  Richardson,  C.  J.,  in  Lozvell  v.  Bel- 
lozvs,  7  N.  H.  391,  "js  the  j)i'oper  action,  whenever  the  demand  is  for 
a  s.um^ertaill,jai"_.is  capable  of  Ix-ing  rc;idily  rclu -cil  to  a  certainty; 
but  it  is  not  the  proper  remedy  vvhen  the  demand  is  rather  for 
unliquidated  damages  than  for  money,  unless  the  performance  of 
the  contract  is  secured  by  a  penalty,    i  Chit.  PI.  101."^°  "The  true 


""Arguments  of  counsel  omitted. 

'"Grips  V.  Ingledew,  7  Mod.  87  (1702),  2  Ld.  Raym.  814;  Van  Horn  v. 
Hamilton,  5  N.  J.  L.  477  (1819)  ;  Little  v.  Mercer,  9  Mo.  216  (1845); 
Knowles  v.  Eastman,  65  Mass.  429  (1853);  Lee  v.  Gardiner,  26  Miss.  521 
(1853)  ;  Baum  v.  Tomkin,  no  Pa.  569  (1885).  At  early  law  debt  would  lie 
for  chattels  as  well  as  money.  Ames  :  Parol  Contracts,  8  Harvard  L.  Rev. 
2--.2.  Birkhead  v.  Wilson,  Dyer  24b  (i537);  Rands  v.  Peck,  Cro.  Jac.  618 
("1621).  In  the  modern  cases  it  is  said  that  the  obligation  must  be  payable  m 
monev,  either  a  sum  certain  or  one  that  can  readily  be  reduced  to  certamty. 
Watson  V.  M'Nairy,  i  Bibb  (Kv.)  356  (1809);  Thayer  v.  Campbell,  2  Bibb 
(Kv.)  472  (1811);  Strottd  V.  Shimer,  8  N.  J.  L.  134  (1825);  Cassaday  v. 
Lanqhliu,  3  Blackf.  (Ind.)  134  (1832)  ;  Crockett  v.  Moore,  3  Sneed  (Tenn.) 
145  dS^^n)  ;  Mix  V.  Nettleton,  29  111.  245  (1862)  ;  Dnngan  v.  Hcnderhtc,  21 
Gratt.  (Va.)  149  (1871)  ;  Turpin  v.  Sledd,  23  Gratt.  (Va.)  238  (1873)  ;  Weiss^y^ 
Mauch  Clumk  I.Cch.  .s8  Pa.  29.S  (1868);  Belford  v.  Woodzvard,  158  111.  122 
^1895);  Aottinglia-my.  Ackiss,  no  Va.  810  (iQio).  But  where  the  obliga- 
tion is  in  the  alternative  to  pay  money  or  furnish  goods  and  on  failure  to 
exercise  the  option  at  a  certain  time  is  for  money  absolutely,  then  debt 
lies  for  the  recoverv  of  such  mone}^  Henry  v.  Gamble,  Minor  (Ala.) 
15  (1820);  Bradford'v.  Steivart,  Minor  (Ala.)  44  (1821);  Taylor  v.  Meek, 
4' Blackf.  (Ind.)  388  (1837)  ;■  Gregory  v.  Bewly,  5  Ark.  318  (1843)  ;  Crockett 
V.  Moore,  3  Sneed  (Tenn.)  14S  (1855);  Minnick  v.  Williams,  77  Va.  758 
(1883). 


YOUNG  V.  ASHBURNSHAM  I9I 

test,"  remarks  Story,  J.,  in  Dullard  v.  Bell,  i  Mason  543,  "is,  there- 
fore, whether  the  sum  to  be  recovered  has,  upon  the  contract  itself, 
a  legal  certainty."  Debt  "lies  only  for  the  recovery  of  a  sum  of 
money  in  nuniero,  and  not  where  the  damages  are  unliquidated  and 
incapable  of  being  reduced  by  averment  to  a  certainty."  I  Chit.  PI. 
iT3;r  E)e5F  will  riot  lie  on  a  contract  of  indemnity  against  unliqui- 
dated or  unascertained  damages.  Flannigav.  v.  Com.  Ins.  Co.,  i 
Dutch.  (N.  J.)  506;  Rutaji  v.  Hopper,  5  Dutch.  (N.  J.)  112.  As 
the  action  of  debt  is  for  the  recovery  of  a  sum  of  money,  the  breach 
or  cause  of  action  complained  of  must  necessarily  originate  out  of 
the  nonpayment  of  the  money  previously  alleged  to  be  payable.  But 
here  there  was  not  and  could  not  be  the  allegation  of  any  sum  of 
money  which  the  defendant  was  bound  to  pay,  and  for  the  neglect 
to  pay  which  he  should  be  held  responsible  in  damages. '^^ 
Exceptions  overruled. 


YOUNG  V.  ASHBURNSHAM. 

Court  of  Com:mon  Pleas,  1586. 

3   Leonard's  Reports   161. 

In  an  action  of  debt  brought  by  the  administrators  of  Young 
against  Ashburnham ;  the  defendant  pleaded  nihil  debet;  and  the 
enquest  was  taken  by  default.  And  upon  the  evidence  given  for  the 
plaintiff,  the  case  appeared  to  be  this,  that  the  said  Young  was  an 
innholder  in  a  great  town  in  the  county  of  Sussex  where  tlie  sessions 
used  to  be  holden ;  and  that  the  defendant  was  a  gentleman  of 
quality  in  the  country  there;  and  he,  in  going  to  the  sessions,  used 
to  lodge  in  the  house  of  the  said  Young,  and  there  took  his  lodging 
and  his  diet  for  himself,  his  servants,  and  horses :  upon  which,  the 
debt  in  demand  grew :  but  the  said  Young  was  not  at  any  price  in 
certain  with  the  defendant,  nor  was  there  ever  any  agreement  made 
betwixt  them  for  the  same.  It  was  said  by  Anderson,  Chief  Justice, 
"that  upon  that  matter,  an  action  of  debt  did  not  lie.  And  therefore 
aftervv-ards,  the  jury  gave  a  verdict  for  the  defendant.'^- 


'^  Debt  is  distinguished  from  assumpsit  in  this,  that  the  latter  action 
must  be  brought  where  the  object  is  to  recover  special  damages  for  non- 
performance of  a  parol  or  simple  contract,  while  debt  lies  against  one 
under  a  duty  to  pay  a  sum  of  money  ascertained  or  readily  ascertainable. 
Eib  V.  Pindall,  5  Leigh  (Va.)  109  (1834);  Durrill  v.  Lawrence,  10  Vt.  517 
(1838)  ;  Somerville  v.  Grim,  17  W.  Va.  803  (18S1)  ;  Ec^pMica  v.  Lgca^c.  2 
Dall.  (Pa.)  118  (1791)  ;  Knapf>  v.  Hohokcn,  38  N.  J.  L.  37TT1876)  •,~Kuhcr 
V.  Burke,  11  Serg.  &  R.  238  (1824).  Thus  debt  lies  on  a  sealed  bond,  Lcland 
V.  Barry,  69  111.  348  (1873)  ;  on  a  judgment,  Lee  v.  Gardiner,  26  Miss.  521 
(1853)  ;  on  a  recognizance,  State  v.  Davis,  43  N.  H.  600  (1862)  ;  for  use  and 
occupation,  Gray  v.  Johnson,  14  N.  H.  414  (1843).  As  to  collateral  prom- 
ises, compare  Bnllard  v.  Bell,  i  Mason.  (U.  S.)  242  (1817),  with  Gregory  v. 
Thomson,  31  N.  J.  L.  166  (1865)  ;  Randall  v.  Rigby,  4  M.  &  W.  130  (1838). 
As  to  promissory  notes,  see  Mandcville  v.  Riddle,  i  Cranch  (U.  S.)  290  and 
note  p.  367;  Cressivell  v.  Crisp,  2  Dow.  Pr.  635  (1834);  Bishop  v.  Young, 
2  Bqs._&  P.  78  (1800)  ;  Rahorg  v.  Peyton,  2  Wheat.  (U.  S.)  385  (1817). 

'"  "The  writ  in  debt,  like  the  writs  for  the  recovery  of  land,  was  a  praecipe 
quod   rcddat.    The   judgment   for   the   plaintiff   is  that   he   recover  his   debt. 


102  ACTIONS 

ARTIU'R    DILLTXf.IIAM   r.   JACOB    SKEIN. 

SUPKKMF.   COUKT.   TkRNITOKV    Ol"    AkKAXSAS,    1S32. 
Uciutslcad    (r.   S.)    181. 

Error  to  Washington  Circuit  Court,  determined  before  Benjamin 
Johnson,  Thomas  P.  Eskridge  and  I'^hvard  Cross,  judges.'" 

Opinion  of  the  Court. — This  suit  was  commenced  on  the  fol- 
lowing writ,  before  a  justice  of  the  peace: 

"Territory  of  Arkansas,  county  of  Washington.  To  the  con- 
stable of  Prairie  Township,  county  of  Wa.shington,  greeting:  Sum- 
mons Arthur  Dillingham  to  appear  before  me,  a  justice  of  the  peace, 
on  th.e  3d  day  of  June.  1831.  at  my  dwelling-house,  between  the  hours 
of  ten  in  the  forenoon,  and  three  o'clock  in  the  afternoon  of  said  day, 
to  answer  Jacob  Skein  in  an  action  of  debt  on  an  open  account  un- 
der one  hundred  dollars.  Given  under  mv  hand,  this  26th  of  May, 
1831. 

"    (Signed)  Henry  Tollett,  J.  P." 

On  the  3d  day  of  June,  183 1,  the  parties  appeared,  and  after  hear- 
ing the  evidence,  the  justice  rendered  judgment  against  the  de- 
fendant Dillingham,  in  jpavor  of  the  plaintiff  Skein,  for  seventy  dol- 
lars and  costs  of  suit.  From  this  judgment  Dillingham  prayed  an 
appeal,  and  at  the  December  term  of  \Vashington  Circuit  Court,  the 
parties  appeared  by  their  attorneys,  and  the  case  was  tried  by  a  jury 
who  found  for  the  plaintiff  Skein,  now  defendant  in  error,  seventy- 
one  dollars  and  seventy-five  cents,  for  which  the  court  rendered 
judgment  to  which  judgment  this  writ  of  error  is  prosecuted. 

It  is  objected  that  debt  will  not  lie  upon  an  open  account,  and 


In  other  words,  as  in  the  case  of  real  actions,  the  defendant  was  conceived 
of  as  having  in  his  possession  something  helonging  to  the  plaintiff  which 
he  might  not  rightfully  keep,  but  ought  to  surrender.  This  doubtless  ex- 
plains why  the  duty  of  a  debtor  was  always  for  the  payment  of  a  definite 
amount  of  money  or  a  fi.Ked  quantity  of  chattels.  A  promise  to  pay  as  much 
as  certain  goods  or  services  were  worth  would  never  support  a  count  in  debt. 
In  Y.  B.  12  Edw.  IV  9-22,  Brian,  C.  J.,  said:  'If  I  bring  cloth  to  a  tailor 
to  have  a  cloak  made,  if  the  price  is  not  determined  beforehand  that  I  shall 
pay  for  the  making,  he  shall  not  have  an  action  of  debt  against  me.'  For 
the  same  reason,  the  qnanlnm  viertiit  and  quantum  valebant  counts  seem 
never  to  have  gained  a  footing  among  the  common  counts  in  debt,  and  in 
as.sumpsit  the  quantum  meruit  and  quantum  valebant  counts  were  distin- 
guished from  the  indebitatus  counts.  But  principle  afterwards  yielded  so 
far  to  convenience  that  it  became  the  practice  to  declare  in  indebitatus 
assumpsit  when  no  price  had  been  fixed  by  the  parties,  the  verdict  of  the 
jur\-  being  treated  as  equivalent  to  a  determination  of  the  parties  at  the 
time   of   bargain. 

The  ancient  conception  of  a  creditor's  claim  in  debt  as  analogous  to  a 
real  right  manifested  itself  in  the  rule  that  a  plaintiff  must  prove  at  the  trial 
the  precise  amount  to  be  due  which  he  demanded  in  his  praecipe  quod 
reddat.  If  he  demanded  a  debt  of  £20  and  proved  a  debt  of  £19  he  failed 
as  effectually  as  if  he  had  declared  in  detinue  for  the  recovery  of  a  horse 
and  could  prove  only  the  detention  of  a  cow."  2  Ames'  Parol  Contracts  Prior 
to  Assumpsit,  8  Harvard  Law  Review  252,  reprinted  Select  Essays  in 
Anglo-American  Legal  History,  vol.  Ill,  p.  304.  See  also,  Baugh  v. 
Phillips,  I  Rolle  257   (1616);  Hooper  v.  Shepherd,  2  Str.  1089   (1738). 

^  Part  of  the  opinion  dealing  with  other  questions  is  omitted. 


DILLINGHAM  V.    SKEIN  193 

that  therefore  the  writ  of  summons  is  erroneous  and  void.  Admit- 
ting that  a  mistake  in  naming  the  approj)riate  form  for  action  in  the 
writ  of  summons  wovild  be  a  fatal  error,  on  which  we  give  no  opin- 
ion, still  we  think  there  is  nothing  in  the  objection.  Debt  will  lie 
upon  an  open  account  for  goods  sold  and  delivered,  as  well  as  an 
action  of  assumpsit.  In  the  case  of  Hughes  v.  Maryland  Insurance 
Company,  8  Wheaton,  Rep.  311,  Judge  Washington  says:  "Debt  is 
certainly  a  sum  of  money  due  by  contract  and  it  most  frequently  is 
due  by  a  certain  and  express  agreement,  which  also  fixes  the  sum, 
independent  of  any  extrinsic  circumstances.  But  it  is  not  essential 
that  the  contract  should  be  express,  or  that  it  should  fix  the  pre- 
cise amount  of  the  sum  to  be  paid.  Debt  may  arise  on  an  implied 
contract,  as  for  the  balance  of  an  account  stated,  to  recover  back 
money  which  a  bailiff  has  paid  more  than  he  had  recovered,  and  in 
a  variety  of  other  cases,  where  the  law,  by  implication,  raises  a  con- 
tract to  pay.  So  an  action  of  debt  may  be  brought  for  goods  sold 
to  defendant,  for  so  much  as  they  are  worth.  In  Emery  v.  Fell,  2 
Term  Rep.  28,  in  which  there  was  a  declaration  in  debt,  containing 
a  number  of  counts,  for  goods  sold  and  delivered,  work  and  labor, 
money  laid  out  and  expended,  and  money  had  and  received ;  the 
court,  on  a  special  demurrer,  sustained  the  action,  although  it  was 
objected  that  it  did  not  appear  that  the  demand  was  certain,  and  1 
because  no  contract  of  sale  was  stated  in  the  declaration.  This  casei 
proves  that  debt  may  be  maintained  upon  an  implied,  as  well  as  upon; 
an  express  contract,  although  no  precise  sum  is  agreed  upon.  But 
the  doctrine  stated  by  Lord  Mansfield,  in  the  case  of  Walker  v. 
Witter,  Douglass,  6,  is  conclusive  upon  this  point.  Hejays  it  down 
that  debt  may  be  brought  for  a  sum  capable  of  being  ascertained, 
though  not  ascertained  at  the  time  the  action  was  brought.  Ashurst 
and  Buller  say  that  wherever  indebtitatus  assumpsit  is  maintainable, 
debt  is  also.""*    United  States  v.  Colt,  1  Peters  C.  C.  Rep.  145. 

'* Accord:  Buller's  Nisi  Prius,  167;  Walker  v.  Witter,  Dougl.  i  (1778); 
Ayleti'v.  Loik'c,  2  Wm.  Bl.  1221  (1778);  McOuiHin  v.  Cox,  i  H.  Bl.  249 
(1789)  ;  Lord  v.  Houston,  11  East  62  (1809)  ;  United  States  v.  Colt,  i  Peters 
(U.  S.  C.  Ct.)  145  (1815)  ;  Hughes  v.  Union  Ins.  Co.,  8  Wheat.  (U.  S.)  294,  5 
L.  ed.  620  (1823)  ;  .Sviitli  v.  Proprietors,  8  Pick.  (Mass.)  178  (1829)  ;  Bloom- 
field  V.  Hancock,  i  Yerg.  (Tenn.)  loi  (1826)  ;  Jenkins  v.  Richardson,  6 
J.  J.  Mar.  (Ky.)  441,  22  Am.  Dec.  82  (1831)  ;  Young  v.  Hawkins,  4  Yerg. 
(Tenn.)  171  (1833)  ;  Norris  v.  School  District,  12  Maine  293  (1835)  ; 
Hickman  v.  Searcy,  9  Yerg.  (Tenn.)  47  (1836);  Van  Dusen  v.  Blum,  35 
Mass.  229  (1836);  Thompson  v.  French,  10  Yerg.  (Tenn.)  452  (1837); 
Malta ffey  v.  Petty,  i  Ga.  261  (1846)  ;  Furman  v.  Parker,  21  N.  J.  L.  310 
(1848)  ;  McVicker  v.  Beedy,  31  Maine  314,  50  Am.  Dec.  666  (1850)  ;  Parker 
V.  Bristol  R.  Co.,  6  Exch.  702  (1851)  ;  Weiss  v.  Mauch  Chunk  I.  Co..  58  Pa. 
295  (1868)  ;  Kirk_v,  Hartnian,  63  Pa.  97  (1869)  ;  National  R.rcliaHge  Bank 
V.  Abell,  63  Maine346  (1872);  Seretto  v.  Rockland,  &c.,  R.  Co..  loi  Maine 
140  (1906).  In  The  Mayor  of  New  York  v.  Butler,  i  Barb.  (N.  Y.)  325 
(1847),  it  is  said  by  Strong,  P.  J.,  "The  distinction  is  betv/een  a  claim  for 
the  actiial  vahie  of  the  work,  and  ope  where  the  plaintiff  seeks  to  recover 
unliquidated  special  damages  for  the  breach  of  a  contract.  The  former  is  a 
debt,  the  latter  is  not  imtil  settled  by  a  judgment.  The  action  of  debt  can.l 
in  general  be  sustained  for  money  due  on  a  contract,  wherever  tlie  demand '; 
is  capable  of  being  readily  reduced  to  a  sum  certain,  upon  tlie  predicated 
statement  of  facts." 
13— Civ.  Proc. 


194  ACTION'S 

Tlie  aciion,  then,  as  described  in  tlic  wril  of  summons,  was  not, 
in  our  jud«:nnent,  misconceived,  but  was  just  as  approjiriate  as  indeb- 
itatus assuinf^sit.  The  omission  to  insert  the  word  book  before  the 
word  account,  we  do  not  deem  material.  We  know  no  distinction 
between  an  ojkmi  account  and  a  book  account ;  and  each  expression 
conveys  the  same  idea. 

Judgment  at'lirmod. 


CORNELIUS  DOWD  qui  tarn  r.  GIDEON  SEAWELL. 

Supreme  Court  of  North  Carolina,  183 i. 

3  Dcvcrcux  L.  (N.  Car.)  185. 

Debt,  upon  tlie  statute  prescribing  the  rules  to  be  observed  in 
solemnizing  the  rites  of  matrimony.  The  writ  demanded  "fifty 
pounds,  which  he  (the  defendant)  owes  and  unjustly  detains,  to  his 
damage  one  hundred  dollars,  due  for  having  solemnized  the  rites  of 
matrimony  between,  etc.,  contrary  to  the  act  of  the  general  assembly 
in  such  case  made  and  j^rovided." 

Upon  nil  debet  ])leaded,  the  jury,  before  his  Honor  Judge 
Strange,  at  ^kloore,  on  the  last  circuit,  returned  the  following  verdict, 
"that  the  defendant  does  owe  the  sum  of  fifty  pounds,  reduced  by 
the  scale  to  twenty-four  pounds  ten  shillings."  His  Honor,  upon 
the  motion  of  the  defendant's  counsel,  arrested  the  judgment,  and 
the  plaintiff  appealed. 

No  counsel  appeared  for  the  plaintiff. 

Winston,  for  the  defendant. 

RuFFiN,  J. :  We  think  the  decision  of  the  superior  court  right, 
and  that  the  judgment  must  be  arrested. 

It  is  an  action  of  debt  for  the  penalty  for  marrying  a  couple 
v.ithout  a  license.    The  sum  demanded  is  one  hundred  dollars ;  and 
the  verdict  is  for  twenty-four  pounds  ten  shillings.   The  Act  of  1778^ 
(Rev.  ch.  134)  gives  a  penalty  of  £50;  which,  when  scaled,  amounts  I 
to  the  sum  found  by  the  jury.  .J 

It  was  formerly  thought  that  the  action  of  debt,  being  for  an  en- 
/tire  tiling,  could  not  be  maintained  unless  the  exact  sum — neither 
more  nor  less — was  recovered.  This  is  not  now  so  considered,  nor 
I  has  been  for  a  long  time.  And  the  rule  is,  that  in  actions,  where 
from  the  nature  of  the  demand  the  true  debt  is  uncertain,  it 
may  be  alleged  to  be  large  enough  to  cover  the  real  debt,  and 
there  shall  be  a  verdict  according  to  the  truth,  and  judgment 
thereon.  Hence,  in  debt  on  simple  contract,  the  declaration  is  good 
although  the  sums  demanded  in  several  counts  do  not  amount  to  or 
exceed  the  sum  demanded  in  the  writ,  or  the  recital  of  it  in  the 
beginning  of  the  declaration.  McOuillin  v.  Cox,  i  H.  Bl.,  249; 
Lord  v.  Houston,  11  East  62.  And  in  Aylett  v.  Lowe,  2  Bl.  Rep. 
1 22 1,  it  was  held,  that  upon  a  verdict  for  £100  in  debt  for  £200, 
on  a  wutuatus,  there  should  be  judgment  for  the  plaintiff.  And  so 
too  in  debt  on  a  specialty,  if  the  deed  does  not  of  itself  show^  the 


DOWD  v.   SEAWKLL  I95 

certainty  of  the  whole  demand,  but  the  extent  is  matter  of  proof 
aliunde,  the  verdict  may  be  according  to  the  truth,  and  if  it  be  within 
the  sum  demanded,  there  shall  be  judgment  for  the  plaintiff,  as  in 
Incledon  v.  Crips,  2  Salk.  658,  S.  C.  2  Ld.  Raym.  814,  which  was 
debt  on  a  bond,  whereby  the  defendant  obliged  himself  to  pay  the 
plaintiff  £35  for  every  hundred  stacks  of  wood,  and  he  averred 
that  he  delivered  a  certain  number  of  hundred  and  one  half,  which 
came  to  £182.10.  Upon  demurrer  it  was  held,  that  there  could 
be  no  apportionment  on  this  contract  for  the  half  hundred,  and 
therefore  the  plaintiff  could  not  have  judgment  for  that:  but  it  was 
further  held,  that  he  might  remit  that,  and  have  judgment  for  the 
rest;  because  the  debt  might  be  more  or  less  by  matter  extrinsic  of 
the  deed,  and  therefore  there  was  no  variance  between  the  deed 
and  the  verdict.  And  this  observation  shows  thejrue  rule;  namely, 
that  where  the  sum  demanded  is  shown  in  the  declaration  to  be  on  a 
cbntract~or~other  matter,  which  in  itself  conclusively  fixes  the 
amount  due  thereon,  then  the  recovery  must  agree  with  the  demand. 
For  the  debt  on  that  contract  is  that  or  nothing.  This  is  not  because 
in  debt  a  sum  in  nurnero  is  claimed,  but  for  the  more  substantial  rea- 
son, that  if  the  recovery  of  more  or  less  were  allowed,  there  would 
be  a  variance  betvveen  the  allegata  and  probata,  and  the  declaration 
would  convey  to  the  defendant  no  information  of  the  cause  of  action. 
Where  the  verdict  therefore  may  stand  with  the  contract  set  forth 
in  the  declaration,  and  both  be  true,  there  shall  be  judgment.  Where 
the  verdict  can  not  be  made  to  accord  wnth  the  contract,  there  can 
not  be  judgment,  as  in  debt  on  bond  for  £100,  a  verdict  for  $100 
is  not  good,  because  it  could  not  be  for  the  debt  created  by  the  spe- 
cialty sued  on.  It  is  the  same  upon  any  written  instrument,  as  upon 
a  bond ;  if  it  be  declared  on  as  a  writing,  constituting  in  itself  a  sub- 
stantial contract,  as  a  promissory  note.  It  is  not  the  instrument 
described,  and  therefore  can  not  be  received  in  evidence. '^^ 

The  same  principles  apply  to  actions  of  debt  for  penalties  given 
by  statutes.  As  in  every  case,  tlie  declaration  must  set  out  the  mat- 
ter, whether  of  contract  or  law,  whereby  the  demand  arises ;  so  in 
these  actions  the  plaintiff  must  show  a  statute  giving  the  penalty 
demanded  by  him,  and  charge  the  acts  which  show  the  defendant 
to  be  guilty  of  the  offense  within  the  statute  These  allegations  are 
indispensable  to  enable  the  defendant  to  know  for  what  he  is  sued, 
and  to  protect  himself  by  plea  in  another  action  for  the  same  matter. 
Anciently  the  statute  was  set  out  at  full  length.  That  was  relaxed, 
and  stating  it  by  its  title  was  then  allowed.  Afterv/ards  a  general 
reference  to  it  by  alleging  the  particular  penalties  given  thereby,  and 


"In  Hickman  v.  Searcy,  6  Yerger  (Tenn.)  47  (1836),  it  was  held  that 
debt  would  lie  for  contribution  b}'  one  warrantor  in  a  deed  against  his  co- 
warrantor,  and  in  Sanders  v.  Marks,  3  Levinz  429  (1696),  debt  was  held  to 
lie  on  an  agreement  under  seal  to  pavxthe  proportionable  part  of  the  charges 
of  a  suit  at  law.  See  also,  Wetumpka,  etc.,  R.  Co.  v.  Hill,  7  Ala.  772  (1845). 
But  in  Long  v.  Long,  i  Hill  (N.  Y.)  597  (1841),  it  was  held  that  debt  would 
not  lie  for  the  breach  of  a  sealed  contract  to  pay  a  note  and  save  the  plain- 
tiff harmless  therefrom  where  the  amount  of  the  note  did  not  appear  in  the 
contract  and  this  case  is  cited  with  approval  in  Flanagan  V.  Camden  Mutual 
Ins.  Co.,  25  N.  J.  L.  506  (1856). 


Tf)6  ACTIONS 

coiiclmling  "against  the  form  of  the  statute"  was  held  sufficient,  upon 
the  irrounds  that  the  court  was  hound  to  take  notice  of  all  puhlic 
laws,  and  that  the  particular  statute  was  sufficiently  identified  l)y 
the  statement  of  the  penalty  and  of  the  acts  forbidden  by  it.  But 
certainly  there  must  be  some  description  of  it :  and  if  there  be  no  ref- 
erence to  it  the  declaration  is  bad.  Scrntcr  v.  Harrington,  i  Hawks 
192;  Myddlcton  v.  U'ynn,  WiLles  599. 

If,  however,  the  statute  itself  g-ive  an  uncertain  penalty,  or  a 
l»enaltv  to  be  measured  by  reference  to  some  uncertain  thing,  then 
the  sum  demanded  is  not  conclusive  on  the  plaintiff,  but  he  may  re- 
cover according  to  the  certainty  made  by  his  y)roof,  because  he  can 
(  do  no  more  towards  a  more  definite  description  of  the  statute  or  of 
the  debt.""  In  an  action,  therefore,  for  substracting  tithes  against 
the  Stat.,  2d  and  3d  ed.,  6,  which  gives  the  treble  value,  the  judgment 
shall  be  according  to  the  verdict,  though  different  from  the  sum  de- 
manded. Pcwbtrton  v.  Skelton,  Cro.  Jac.  498.  The  court  say  there 
that  the  variance  is  no  objection,  because  the  statute  gives  no  cer- 
tain sum,  but  only  so  much  in  reference  to  the  value;  and  the  value 
can  not  be  positively  estimated  until  it  is  done  by  the  jury  them- 
selves. And  the  judges  distinguisli  that  case  from  an  action  grounded 
on  a  specialty  in  which  the  certainty  of  the  debt  appears,  and  from 
an  action  grounded  on  a  statute  which  gives  a  sum  certain ;  in  both 
which  the  "precise  sum  must  be  demanded.  This  last  position  is,  to  be 
sure,  but  a  dictum  in  that  case,  but  it  is  the  point  of  the  decision  in 
Cunningham  v.  Bennett,  i  Geo.,  i  C.  B.,  stated  by  Mr.  Justice  Buller 
in  his  Nisi  Prius,  a  book  of  much  authority.  There  it  was  held  that 
a  penal  action  could  not  be  for  less  than  the  penalty  given  by  the 
statute;  and  though  the  plaintiff  had  a  verdict,  judgment  w^as  ar- 
rested. I  conclude,  therefore,  that  wherever  a  statute  gives  a  cer- 
tain sum  in  numero,  that  exact  sum  must  be  demanded,  else  it  can 
not  be  taken  to  be  the  penalty  given  by  that  statute.  Here  the  decla- 
ration conforms  neither  to  the  act  of  1741  nor  that  of  1778.  The 
former  gives  £50  proclamation  money  to  the  use  of  the  parish,  or, 
by  the  act  of  1777,  to  that  of  the  county.  The  latter  gives  £50, 
scaled  to  £24.10,  one-half  to  the  informer  and  the  other  to  the 
county.  Consequently  the  judgment  must  be  arrested  for  this 
reason.'" 

The  other  objection,  that  damages  are  demanded,  is  not  a  good 
one.  Thev  can  not  be  recovered,  but  it  is  not  error  to  demand  them." 


"  In  debt  on  a  statute  Kivin^  an  uncertain  sum  by  way  of  penalty  the  ver- 
dict is  Rood  altbouuh  a  less  sum  than  is  demanded  is  found  to  be  due. 
United  States  v.  Coll,  l  Pet.  (U.  S.)  145  (1815)  ;  Dopier  v.  Bray,  2  Hawk 
(N  Car  )  57  (18^2)  ;  Rockivell  v.  The  State,  \i  Ohio  130  (1841)  ;  StockzvcU  v. 
United  States,  13  Wall.  (U.  S.)  531,  20  L   e^d.  491  (^^7^)-  .,  n     a 

'■'•  Shez^-cll  v.  rdl  1,  Yeates  (Pa.)  11  (1800)  ;  Martut  v.  Large,  3  McCord 
(S   r:ir~    11^  (I '^2,\)  ; " k j!.vr!l  v.  Ch icago,  22  111.  283  (1859). 

'"Norris  v.  Film  ore,  i  Yeates  (Pa.)  405  (i794)  :  Ritchie  v  Shannon  2 
Rawle  (Pa.i  lob  ( iS2l?T;  r5arnajies  in  debt  are  usually  nominal.  ^WraLy.,^ 
0'\'eal  4  W  &  S  130  (1842).  Nominal  dama},'es  are  not  siven  on  judgment 
Ty  defaultln  dTbt.  People  v.  Ilallett,  4  Cow.  (N.  Y.)  67  (1825).  As  to  the 
amount  recoverable  in  debt  on  a  penal  bond,  see  Frazer  v.  Little,  13  Mich.  193 
?i860. 


BROOKS  v.  scott's  exr.  197 

The  case  of  Frederick  v.  Lookup,  4  Burrows  2018,  shows  this:  for 
the  judgment  was  reversed  only  as  to  the  damages  assessed,  and 
affirmed  for  the  debt,  which  was  the  penaUy. 


Judgment  affirmed.^^  ^  /a^^<j..-wv. 


(h)  Assumpsit.  «o__^^   -^--.JrJ^j^ 

BROOKS  f.  SCOTT'S  Exr.  '"^  '^  ^^v^-^     -      •  .^ 

Supreme  Court  of  Appeals  of  Virginia,  181  i. 

2  Munford  (Va.)  344. 

In  an  action  of  assumpsit  by  Hezekiah  Brooks  against  James 
Scott,  in  the  county  court  of  Prince  Edward,  the  declaration  con- 
tained four  counts,  viz.   ist.    A  general  indebitatus  assumpsit  foft  '^j^tv'^^/ 
goods  sold  and  delivered;  2d.    A  like  count  for  money  lent;  3d.    A I 
like  count  for  services  done  and  performed  in  the  capacity  of  anl 
overseer;  and,  4th.    A  common  quantum  meruit  for  like  services.  1 
At  the  trial,  on  the  general  issue,  the  plaintiff  offered  evidence  to-' 
prove  that  the  defendant  had  acknowledged  he  had  employed  the 
plaintiff  as  an  overseer  for  the  term  of  three  years,  and  was  to  pay 
nim  the  qnantity  of  two  thousand  pounds  of  tobacco  per  year ;  to 
which_Jestimony_the  .defendant   objected;   but   the   objection   was 
overruled  by  the  court,  and  the  evidence  permitted  to  go  to  the  jury ; 
to  which  opinion  of  the  court  a  bill  of  exceptions  was  filed.   Verdict 
and  judgment  for  the  ])laintiff.     Upon  an  appeal,  the  district  court 
was  of  opinion  that  the  county  court  "acted  improperly  in  admitting 
evidence  to  go  to  the  jury,  of  a  special  agreement  to  support  the 
general  charges  laid  in  the  declaration."    The  judgment  w^as  there- 
fore reversed  with  costs ;  the  suit  retained  for  trial,  and  leave  given 
to  amend  the  declaration ;  whereupon  the  plaintiff  obtained  a  writ 
of  supersedeas  from  a  judge  of  this  court. ^^ 


■"  Debt  is  the  action  usually  employed  to  enforce  a  statutory'  duty  to  pay 
money  or  to  recover  a  penalty  imposed  by  statute,  if  no  other  specific  remedy 
is  provided.  Bigclozv  v.  Cambridge,  &c.,  Co.,  7  Mass.  202  (1810)  ;  Jeffrey  v. 
Blue  Hill  T.  Co.,  10  Mass.  368  (1813)  ;  Billiard  v.  Bell,  i  Mason  (U.  S.)  242 
(1817);  Tilson  V,  IVarzvick  G.  L.  Co.,  4  B.  &  C.  962  (18251  ;  Blackhnni  v. 
Baker,  7  Porter  (Ala.)  284  (1837)  ;  Simouson  v.  Spencer,  15  Wend.  (N.  Y.) 
548  (1836)  ;  Gavman  \.  Gamble,  10  Watts  (Pa.)  382  (1840)  ;  Janvrin  v.  Scam- 
nwn,  29  N.  H.  280  (1854);  Love  v.  Pusey,  &c.,  Co.,  3  Penn.  (Del.)  577 
(1907)  ;  California  v.  Poulterer,  16  Cal.  514  (i860)  ;  Orne  v.  Roberts,  51  N.  H. 
no  (1871);  Springfield  v.  Postal  Tel.  C.  Co,  164  111.  App.  276  (1911).  The 
remedy  may  be  concurrent  with  other  actions.  Geneva  v.  Cole,  61  111.  397 
(1871).  But  if  the  statute  prescribes  another  form  of  action,  debt  will  not 
lie.  Smith  v.  Drew,  5  Mass.  514  (1809)  ;  M_oycr  v^Kirby,  14  .Sergr  {y  R  (Pa/) 
162  (1826).  In  the  absence  of  statutory  trrounds  debt  will  not  lie  for  a  mere 
tort.  Chamberlin  v.  Cox,  2  N.  J.  L.  332  (1807)  ;  Lads  v.  Pitkin,  3  Green  (Iowa) 
■/7  (1851),  and  see  IVilliaws  v.  Mead,  80  Conn.  434  (1908). 

"'.See  Ames'  History  of  Assumpsit,  II  Harvard  Law  Review,  1-18,  re- 
printed in  Select  Essays  in  Anfiio-Amcrican  Legal  History,  vol.  Ill,  p.  599; 
Hare  on  Contracts  (1887),  p.  117. 

"  Portions  of  the  opinions  are  omitted. 


198  ACTIONS 

Carki.l,  J. :  Tlic  mily  ([uestion  now  to  be  decided  is,  whether  the 
evidence  was  properly  admitted,  under  either  count  in  the  declara- 
tion. The  two  first  counts,  being  for  goods  sold  and  money  lent, 
are  so  totally  variant  from  the  evidence  as  to  be  thrown  entirely 
out  of  view.'  Nor  do  I  think  the  evidence  admissible  under  the  3d 
count.  It  is  true  that,  with  respect  to  debts  for  work  and  labor,  or 
oflier  personal  services,  the  rule  is,  that,  however  special  the  agree- 
ment was,  yet  if  it  was  not  under  seal,  and  the  terms  of  it  have  been 
|)erformed  on  the  plaintiff's  i)art,  and  the  remuneration  was  to  be  in 
monev,  the  party  may  declare  either  specially  on  the  original  execu- 
tory agreement,  or  in  indebitatus  assumpsit,  on  the  express  promise 
to  remunerate  (if  there  was  one),  or  on  the  promise  which  the  law 
-implies  on  the  execution  of  the  agreement.^-  But  this  rule,  so  far  as 
relates  to  the  indebitatus  assumpsit  count,  has  never  been  carried 
farther  than  to  those  cases  where  the  remuneration  contemplated  by 
the  parties  was  to  be  in  money.  When  the  remuneration  was  not  to 
beTn  money,  but  was  to  be  in  any  other  kind  of  personal  property, 
or  in  personal  services,  or  in  the  doing  any  collateral  act  (as  the 
delivery  of  a  bond  or  the  like),  there,  the  general  indebitatus  assuwp- 
sit  count  is  not  sufficient,  but  the  declaration  must  be  special. .^^  J 
This  principle  applies,  I  conceive,  with  full  force  to  the  case  now 
before  the  court  (where  the  remuneration  was  to  be  in  tobacco), 
and  proves  the  error  of  the  county  court. 

Every  reason  for  excluding  the  testimony  under  the  third  count, 
is  at  least  equally  applicable  to  the  fourth,  or  quantum  meruit  count; 
for  it  can  not  be  contended  that  the  latter  count  admits  a  greater 
range  of  testimony  than  the  former.  In  fact,  they  are  both  emphat- 
ically termed  money  counts,  "being  founded  on  express  or  implied 
promises  to  pay  money  in  consideration  of  a, precedent  debt."  To 
extend  them  farther  would  be  to  demolish  tthe  distinction,  wisely 
adopted,  between  general  and  special  counts,  and,  with  it,  all  those 
barriers  established  for  the  safety  of  the  defendant,  by  apprising 
him  of  the  real  nature  of  the  plaintifif's  claim,  and  by  enabling  him  to 
plead  a  former  recovery  in  bar  of  a  subsequent  action. 

Fleming,  J.:  The  plea  was  non  assumpsit,  and  issue  thereon. 
The  evidence  excepted  to  was,  that  the  defendant  had  acknowledged, 
before  witnesses,  that  he  had  employed  the  plaintiff  as  an  overseer 
for  three  years ;  and  was  to  pay  him  2,000  lbs.  of  tobacco  per  year. 


^^  Leeds  v.  Burrows,  12,  East  i  (1810)  ;  Strcctcr  v.  Horlock,  i  Bingh.  34 
(1822);  Bank  of  Columbia  v.  Patterson,  7  Cranch.  (U.  S.)  299  (1813)  ; 
BovAcislcr  v.  Dohson.  5  Wliait-  d'a.)  398  (1839);  Hancock  V.  Ross,  18  Ga. 
364  (iSsO  ;  Tunmson  v.  J-icld,  21  111.  108  (1859)  ;  Hosley  v.  Black,  28  N.  Y. 
438  (1863)  ;  Morse  v.  Sherman,  106  Mass.  430  (1871)  ;  Ford  v.  Rockivcll,  2 
Colo.  376  (1874)  ;  Mc Arthur  Brothers  v.  Whitney,  202  111.  527  (1903)- 

**  Accord:  Felton  v.  Dickinson,  10  Mass.  287  (1813)  ;  Mitchell  v.  Gile, 
12  N.  H.  390  (1841)  ;  IVcart  v.  Hoagland,  22  N.  J.  L.  517  (1850)  ;  Ranlett  v. 
Moore,  21  N.  H.  336  (1850)  ■,Rastland  v.  Sparks,  22  Ala.  607  (1853)  ;  Meyers 
V.  Schemp,  67  111.  469  (1873);  Pierson  v.  Spaulding,  61  Midi.  90  (1886); 
contra,  Crandall  v.  Bradlev,  7  Wend.  (N.  Y.)  311  (1831)  ;  Teplin  v.  Packard, 
8  Barb.  (X.  Y.)  220  (1850)  ;  St.  Louis,  &c.,  Co.  v.  Soulard,  8  Mo.  665  (1844)  ; 
Pa\ne  v.  Couch,  I  Greene  (Iowa)  64  (1847)  ;  Pou'elton  Cool  Co.  v.  McShain, 
75  Pa.  238  (1874)  ;  McKinnie  v.  Lane,  230  111.  544  (1907)- 


HOLLISTER  V.  LYON  &  HEALY  199 

The  evidence  then  proves  a  special  agreement  to  pay  a  quantity,  of 
tobacco  for  certain  services,  which  was  allowed  to  support  a  gen- 
eral charge  of  a  sum  of  money,  said  to  be  due  for  services  per- 
formed as  an  overseer,  which,  in  my  conception,  was  irrelative  to 
the  issue,  and  tended  to  take  the  defendant  by  surprise.  Every 
plaintiff  is  presumed  to  understand  his  own  case,  and  to  know  what 
evidence  he  can  bring  forward  in  support  of  it ;  which  ought  to  ap- 
ply directly  to  the  charge  in  the  declaration,  and  not  by  inference  or 
implication. 

In  the  case  before  us,  the  plaintiff,  in  order  to  avail  himself  of 
the  evidence  excepted  to,  should  have  brought  a  special  action  on 
the  case,  stating  the  agreement,  his  performance  of  the  services,  for 
which  the  law  would  have  implied  an  assumpsit,  his  demand  for  the 
tobacco,  and  the  defendant's  refusal  to  pay:  with  an  averment  that 
the  tobacco  contracted  for  was  worth  so  much  money,  and  laid  his 
damages  accordingly ;  and  then  the  parties  would  have  gone  to  trial 
on  fair  and  equal  grounds ;  and  no  surprise  on  cither  side.  But,  as 
the  case  appears,  the  judgment  of  the  county  court  can  not  be  svis- 
tained;  and  was  properly  reversed  by  the  judgment  of  the  district 
court,  which  is  affirmed  by  the  unanimous  opinion  of  this  court.^* 


\ 


H.  L.  HOLLISTER  v.  LYON  &  HEALY. 

Appellate  Court  of  Illinois,  191 3. 
177  ///.  App.  652. 


Barnes,  J. :  This  was  an  action  of  assumpsit  on  the  common 
counts.  The  only  question  that  need  be  considered  is  whether,  on  the 
facts  appearing  in  the  record,  plaintiff  could  recover  on  the  common 
counts  only. 

Plaintiff  claimed  to  have  returned  a  pianola,  previously  bought 
of_ defendant,  with  the  understanding  that  he  was  to  be  credited 
with  $250  on  a  piano  or  orchestrelle  which  he  was  to  get  some  time 
ih'the  future — when  he  got  a  new  house  he  was  building — and  for^ 
vv^hich  he  v.-as  to  pay  $1,000,    He  called  about  three  years  after- 


*'^A  special  contract  must  be  declared  on  specially,  indebitatus  assumpsit 
will  not  lie.  Ctittcr  v.  Powell,  6  T.  R.  320  (i7Q5)  ;  Hull  v.  Heightman,  2  East 
145  (1S02)  ;  ]\'hite  V.  Woodruff,  i  Root  (Conn.)  309  (1790;  Jennings  v. 
Camp,  13  Johns.  (N.  Y.)  04,  7  Am.  Dec.  367  (1816)  ;  Algeo  v.  Algeo,  ^o  S.  & 
^R^JTaj-^^  (1823)  ;  Hnrlock  v.  Murphy,  2  Houst.  (Del.)  550 11^27  ;  Way- 
nard  v.  Tidball,  2  Wis.  34  (1853);  Ladue  v.  Seymour,  24  Wend.  (N.  Y.)- 
60  (1840)  ;  Brozvn  v.  Fales,  139  Mass.  21  (1885)  ;  McGonigal  v.  Raughley,  6 
Penn.  (Del.)  61  (1906);  Applebaum  v.  Goldman,  155  Mich.  369  (1909); 
Massachusetts  C.  &  R.  A.  v.  Crudcli,  30  R.  I.  193  (1909)-  Where  performance 
of  a  special  agreement  has  been  prevented  by  the  act  or  default  of  the  de- 
fendant the  plaintiff  has  been  permitted  to  recover  in  indebitatus  assumpsit  in 
Moult  on  V.  Trask,  50  Alass.  577  (1845)  ;  Carrol  v.  Giddings,  58  N.  H.  3^^ 
(1878)  ;  Money  v.  York  Iron  Co.,  82  Mich.  263  (1890).  In  other  jurisdictions 
it  has  been  held  that  the  plaintiff  must  declare  specially.  Rankin  v.  Darnell, 
II  B.  Mon.  (Ky.)  30  (1850)  ;  Harris  v.  Ligget.  i  W  /^  S.  (V7^^  30J  (1841)  ; 
Expardet  Metal  F.  Co.  v.  Boyt-'e,  233"[I1.  284  (1908)  waiver. 


2(.X)  ACTIONS 

\vaicls  ami  was  uiiablo  to  tjct  any  information  about  the  matter  from 
any  t)nc  ho  oonsultcHl  in  defendant's  store,  Notbinji^  more  was  done 
abnut  the  matter  and  he  brought  this  aetion. 

On  evidence  of  sucli  facts,  the  court  directed  a  verdict  for  $250 
and  accrued  interest. 

There  was  no  agreement  to  pay  him  money,  but  simply  to  give 
credit  for  $250  on  condition  of  a  sale  of  either  a  piano  or  an 
orchestrellc.  or  on  a  sale  that  was  executory,  or  where  delivery  must 
be  made  in  the  future.  Under  any  theory  he  could  not  recover  on 
the  common  counts.  Ijidchitafus  assumpsit  will  not  lie  where  the 
agreement  is  not  for  the  paj-ment  of  money  but  for  the  doing  of  some 
other  thing;  Myers  v.  Scheuip,  67  111.  469;  nor  on  an  executory  con- 
tract, Cast  V.  Roff,  26  111.  453;  nor  for  the  nondelivery  of  goods, 
Seckel  v.  Scott,  66  111.  196.  In  such  cases  the  party  must  declare 
specially  on  the  contract. 

Assuming  that  plaintiff  had  taken  the  necessary  steps  to  perfect 
a  cause  of  action,  it  nevertheless  was  one  for  unliquidated  damages 
of  which  there  was  no  proofs  The  court  erred  in  directing  a  ver- 
dict and  denying  the  motion  in  arrest  of  judgment.  The  judgment 
Avill  be  reversed  and  the  cause  remanded. 

Reversed  and  remanded.®' 


X 


EDWARD  THOMPSON  COMPANY  v.  KOLLMEYER. 

Appellate  Court  of  Indiana,  1910. 
46  Ind.  App.  400. 


Rabb,  J. :  Appellant  brought  an  action  in  general  assumpsit 
against  appellee,  to  recover  on  an  account  for  goods  alleged  to  have 
been  sold  and  delivered  by  api)ellant  to  appellee.  Issues  were  formed 
and  a  trial  had,  resulting  in  a  finding  and  iudgment  for  appellee.  The 
only  question  presented  here  is  the  sufficiency  of  the  evidence  to 
sustain  the  finding. 

The  goods  alleged  to  have  been  sold  were  volumes  thirteen  to 
thirty-two,  inclusive,  of  the  American  and  English  Encvclopedia  of 
Law,  volumes  fifteen  to  twenty-three,  inclusive,  of  the  Encyclopedia 
of  Pleading  and  Practice,  and  volume  two  of  the  supplement  to  the 
Encyclopedia  of  Pleading  and  Practice.  The  appellant  introduced  in 
evidence,  without  objection,  the  following  vv'ritten  order,  given  by 
'apj)ellee  to  appellant : 

"Columbus,  Indiana,  March  19,  1903;  I'.dward  Thompson  Com- 
pany, Northport,  New  York,  Gentlemen :     Please  renew  shipments 


'^Accord:  Brand  v.  Henderson,  107  111.  141  (1883);  Parmly  v.  Farrar, 
169  III.  App.  606,  48  N.  E.  693  (1897)  ;  Meyer  v.  Frcnkil,  113  Ind.  36  (1910)  ; 
Seluihe  v.  Farrell,  142  App.  Div.  (N.  Y.)  13  (1910)  ;  Miller  v.  Walker,  158 
111.  App.  276  (1910)  ;  Smith  v.  Young,  179  111.  App.  364  (1913)  ;  Gallup  v. 
Jeffery  Co.,  86  Conn.  308  (1912),  and  cases  in  notes  to  preceding  case.  Com- 
pare Volhnar  v.  Bayfield  Mill  Co.,  146  Wis.  412  (1911)  code. 


EDW.  TH02MPS0N   CO.  V.    KOLLMEYER  20I 

on  my  contracts  for  American  and  English  Encyclopedia  of  Law, 
second  edition,  and  Encyclopedia  of  Pleading  and  Practice,  sending 
me  at  once  volumes  thirteen  to  twenty-three,  inclusive,  of  the  Amer- 
ican and  English  Encyclopedia  of  Law  and  volumes  fifteen  to 
twenty-three,  inclusive,  of  the  Encyclopedia  of  Pleading  and  Prac- 
tice, for  which  I  am  to  pay  you  $7.50  and  $6  per  volume  respectively, 
also  send  me  the  remaining  volumes  of  the  American  and  English 
Encyclopedia  of  Law  as  published,  and  the  supplement  to  the  Ency- 
clopedia of  Pleading  and  Practice.  The  terms  on  the  volumes  of  the 
American  and  English  Encyclopedia  of  Law  now  published,  and  the 
subsecjuent  volumes,  and  on  volumes  fourteen  to  twenty-three  of  the 
Encyclopedia  of  Pleading  and  Practice,  I  agree  to  pay  as  follows : 
$6.50  cash;  balance  $10  bimonthly,  beginning  September  i,  1903.    j 

C.  J.  Kollmeyer."       \ 

It  was  shown  by  other  undisputed  and  uncontradicted  evidence 
that  the  goods  were  shipped  pursuant  to  the  order,  and  had  been 
partially  paid  for  by  appellee,  a  balance  of  $139.50  remaining  due. 

Appellee  contends  that  appellant's  action,  being  in  general  as- 
sumpsit upon  the  account,  and  not  based  upon  the  written  order, 
would  not  be  sustained  by  proof  of  the  v>'ritten  order  introduced  in 
evidence. 

It  is  the  settled  law  in  this  state,  that  where  an  express  contract 
has  been  entered  into,  and  one  party  has  fully  performed  his  part 
of  the  contract,  so  that  nothing  remains  unexecuted  but  the  other's 
obligation  to  pay,  the  party  performing  his  part  of  the  contract  may 
sue  the  other  upon  the  implied  contract  to  pay  for  the  benefit  he  has 
received.  Magee  v.  Sanderson  (1858),  10  Ind.  261 ;  Peden  v.  Scott 
(1905).  35  I"d.  App.  370;  Board,  etc.,  v.  Gibson  (1902),  158  Ind. 
471,  and  cases  cited. 

The  special  contract  marks  the  maximum  of  the  measure  of 
damages.  In  this  case  the  undisputed  evidence  shov/s  that  the 
goods  were  furnished  to  appellee,  at  his  request,  by  appellant,  and 
all  that  remained  to  be  done  under  the  contract  was  that  appellee 
should  pay  for  them.  Under  the  evidence,  appellant  was  clearly 
entitled  to  a  fmding  and  judgment  against  appellee  for  the  balance 
remaining  due  on  the  purchase  price  of  the  books. 
^■jTrdgment  reversed  and  a  new  trial  ordered.^*^ 


"•^  Accord:  Dees  v.  Self  Bros.,  165  Ala.  225  (loio);  Marsh  v.  Frickc, 
I  Ala.  App.  64Q  (1911);  Elliott  v.  ll'ilson.  25  Del.  445  (igii);  Theis  v. 
Svohoda,  166  III.  App.  20  (1911)  ;  Wilson  v.  Reighard,  230  Pa.  141  (1911)  ; 
Ludzi'ii/  V.  P^tsey  &  Jones  Co.,  143  App.  Div.  (N.  Y.)  290  (1911);  Clymers- 
Jones  Lith.  Co.  v.  IJnltrd  .'statrs  F  ff  S:  R  r.n  /|S  Pa,  Super.  Ct.  636  ,(1912)  f 
St.  Louis  &  S.  F.  R.  Co.  v.  Hall,  65  So.  2>?>  (Ala.  1914)  ;  American  Surety  Co. 
V.  Fruin  B.  C.  Co.,  182  Mo.  App.  667  (1914)  and  cases  in  note  to  Brooks  v. 
Scott,  supra. 


202  ACTIONS 

NEGRO  I'ETKR  :•.  W  ILLIAAI  STEl-.L.        y^ 

S r  I'K ': M  !•.  CquRT_oiL_r-iiN n syixa^n LA,_I-S.o i  . 

3  Ycatcs  {Pa.)  250. 

This  cause  was  tried  at  msl  hr'r.is,  at  Lancaster,  before  the  late 
and  iiresent  chief  justice.   The  plaintiff  declared  in  a  general  indeb- 
itatus assumpsit  for  work,  labor  and  service,  and  on  a  quantum 
meruit.    It  was  stated,  that  he  was  captured  during  the  late  revolu- 
tionary war,  witliin  the  British  lines,  by  the  defendant  then  an  Amer- 
,ican   officer,   and   lirought   into   Lancaster   county.    The   defendant 
/there  registered  him  as  a  slave,  and  after  being  six  months  within 
[the  state,  he  v/as  discharged  by  habeas  corpus.    The  action  was 
j  brought  for  remuneration  for  his  services,  after  he  had  been  six 
months  within  the  state.   The  defendant  at  the  trial,  excepted  to  the 
form  of  the  action,  insisting  that  trespass  was  the  proper  remedy; 
and  the  court  directed  a  nonsuit,  with  liberty  to  move  in  bank  to 
take  it  off." 

Yeates,  J. :  This  is  a  motion  to  set  aside  a  nonsuit,  and  the  only 
question  is,  whether  a  free  negro  may  not  support  a  general  indeb- 
itatus assumpsit  on  a  quantum  meruit,  for  work,  labor  and  service, 
against  a  person  claiming,  or  who  formerly  did  claim  to  hold  him 
as  a  slave  ? 

On  the  part  of  the  plaintiff  it  has  been  insisted,  that  where  the 
party  has  two  remedies  given  by  the  law,  for  an  injury  done  to  his 
person  or  property,  he  may  elect  which  he  pleases.  That  though 
trespass  and  false  imprisonment  would  lie,  yet  indebitatus  assumpsit 
mav  also  be  maintained.  That  the  party  may  waive  the  tort  and  go 
for' the  sum  really  due,  i  Burr.  21,  Cooper  et  al.  v.  Chitty  et  ah, 
2  Ld.  Ravm.  \2\6,Lamine  v.  Dorrel;  Fellham  v.  Terry  cited  Cowp. 
416,  419.'  I  Term  Rep.  387;  Bull.  128.  Simpson  v.  Gisling;  Cowp. 
246,  Chenv  v.  Batten^'  2  Dall.  76,  yS,HaIdane  v.  Duche's  exrs. 
And  it  has  been  said,  that  this  form  of  action  is  a  liberal  remedy, 
like  a  bill  in  equity,  entrapping  no  one  in  form.  2  Bla.  Rep.  830. 
2  Burr.   1012.^^ 

The  defendant  has  contended,  that  trespass  is  the  specific  rem- 
edy pointed  out  by  law,  and  that  the  point  of  slavery  could  only  be 
tried  in  that  form  of  action,  or  homine  replegiando.    That  the  de- 
'  fendant's  holding  the  plaintiff  by  force  is  utterly  inconsistent  with  a 
I  contract  express  or  implied,  which  must  be  the  ground  of  every 
;  assumpsit,    i  Term  Rep.  20.    Stokes- et  al.  \.  Lewis  et  al,  lb.  387, 
Birch  V.  Wright.  And  that  a  recovery  in  this  suit  would  not  be  a  bar 
to  a  future  action  of  trespass.   That  surprise  might  be  occasioned  to 


"'  The  arguments  of  counsel  are  omitted. 

""Where  a  plaintiff  is  entitled  to  two  modes  of  redress  and  elects  to 
bring  assumpsit,  the  defendant  may  raise  any  defense  peculiar  to  that  action, 
although  the  same  defense  would  not  have  been  allowed  had  the  other  form 
of  action  been  pursued.  SmUli  v.  Hodson,  4  Durn.  &  E.  211  (179O  ;  Duncan 
V  Ware  5  S.  &  P.  (Ala.)  119  (1833);  Meredith  v.  Richardson,  10  Ala.  828 
(1846). 


PETER  V.  STEEL  203 

the  defendant  in  this  form  of  action  and  he  might  not  know  how  to 
shape  his  defense.  Assumpsit  will  not  lie  against  an  excise  officer 
for  an  over  payment.  Cowp.  69,  JVhitehread  v.  Brookbank;  nor 
money  paid  for  the  release  of  cattle  distrained  for  damage  feasant, 
though  the  distress  was  wrongful.  lb.  414.  To  support  the  suit, 
there  must  be  privity  between  tlie  parties.  2  Dall.  54,  55.  Rapalje 
et  al.  V.  Emory. 

I  am  not  disposed  to  break  in  on  the  boundaries  of  actions,  nor 
to  make  any  innovation  therein.  If  the  defendant  would  sustain 
any  inconvenience  or  difficulty  in  tlie  present  form  of  action,  or  the 
plaintiff  derive  an}^  advantage  therefrom,  I  should  not  feel  inclined 
to  support  it. 

The  argument  of  surprise  in  the  present  suit  is  most  powerful, 
if  well  founded.  But  is  not  a  demand  for  work,  labor  and  service, 
an  immediate  notice  to  tlie  defendant,  that  for  such  time  as  he 
claimed  the  plaintiff  to  be  in  a  state  of  vassalage,  compensation  to  a 
reasonable  extent  is  sought  for?  Would  trespass  more  thoroughly 
apprize  him  how  to  shape  his  defense,  than  tlie  present  form  of 
action  ?  On  the  general  issue,  the  defendant  may  give  every  thing 
in  evidence,  which  shows  that  the  plaintiff  has  no  right  to  recover. 
Indeed  in  actions  for  money  had  and  received,  which  is  a  most  lib- 
eral remedy,  the  objection  as  to  want  of  notice  of  the  nature  of  the 
demand  on  the  face  of  the  pleadings,  almost  uniforml)^  occurs ; 
and  yet  such  assumpsits  have  been  sustained  notwithstanding. 

In  Astley  v.  Reynolds  (2  Stra.  915)  detinue  or  trover  was  open 
to  the  plaintiff,  when  money  was  unlawfully  extorted  by  duress  of 
goods,  and  yet  assimipsit  was  held  to  lie.  In  Howard  v.  Wood  (Sir. 
T.  Jon.  126.  2  Lev.  245)  and  in  .Irris  v.  Stakeley  (Mod.  260)  it 
was  held,  that  indebitatus  assumpsit  Avould  lie  for  the  rightful 
against  the  Vv'rongful  officer,  for  the  profits  of  an  office,  as  for  money 
had  and  received.  In  these  cases  it  was  objected,  that  indebitatus 
assumpsit  would  not  lie  for  want  of  privity,  and  because  there  was 
no  contract ;  it  v/as  only  a  tort,  a  disseisin  and  the  plaintiff  might 
have  brought  an  assize,  and  that  the  defendant  took  the  profits 
against  the  will  of  the  plaintiff.  "There  the  question  to  be  tried 
was,  whether  the  grant  of  the  office  was  good  or  bad,  but  that  did 
appear  from  the  form  of  the  declaration ;  nor  was  it  possible  for  the 
defendant  to  be  apprized,  what  title  the  plaintiff  intended  to  set  up. 
Again,  it  was  not  the  only  remedy,  for  an  assize  will  lie  for  an 
office."  Cowp.  416.  But  the  several  objections  were  overruled  by 
the  court;  because  it  is  an  expeditious  remedy,  facilitates  the  recov- 
ery of  just  rights,  and  tliis  manner  of  action  had  long  prevailed. 
2  Jon.  128. 

In  Hitchin  v.  Campbell,  (2  Bla.  Rep.  829,  830)  it  was  deter- 
mined, that  indebitatus  assumpsit  will  lie  for  the  assignees  of  a  bank- 
rupt against  a  creditor  who  has  levied  his  debt  by  fieri  facias,  sub- 
sequent to  the  act  of  bankruptcy.  There  Lord  Chief  Justice  De 
Grey  observed,  that  "practice  had  certainly  much  extended  the 
action  of  assumpsit,  as  a  very  useful  and  general  remedy.  While 
the  action  was  in  its  infancy,  the  courts  endeavored  to  find  technical 
arguments  to  support  it,  as  by  a  notion  of  privity,  etc.,  yet  that  prin- 


204  ACTIONS 

ciplc  is  tiH)  narrow  to  support  these  actions  in  ij^cneral,  to  the  extent 
to  whidi  they  are  admitted.  The  assignees  might  have  their  election 
to  bring  either  tort  or  contract,  yet  they  could  not  bring  both;  and 
having  elected  to  bring  trover,  the  judgment  in  that,  bars  the  action 
of  assiiiiif'sit." 

In  I -amine  v.  Dorrel,  2  Ld.  Raym.  1216,  the  court  held,  that  if 
one  takes  goods  to  which  he  has  no  right,  and  sells  them,  the  owner 
mav  waive  the  tort  and  recover  the  price  for  which  they  were  sold 
in  indebitatus  assumpsit,  and  that  it  did  not  differ  from  assumpsit 
for  the  profits  of  an  office.  Lord  Chief  Justice  Holt  remarks,  that 
"the  defendant  may  plead  recovery  in  this  suit  in  bar  of  an  action 
of  trover;  because  by  the  indebitatus  assumpsit,  the  plaintiff  makes 
and  affirms  the  defendant's  act  to  be  lawful;  and  consequently  the 
sale  of  the  goods  is  no  conversion."  This  reasoning  is  highly  appli- 
cable to  the  case  before  the  court.  That  a  plaintiff  may  dispense 
with  a  trespass  or  wrong,  and  proceed  for  the  sum  really  due,  is  I 
apprehend  too  well  established  by  the  cases  cited  and  others,  to  be 
now  shaken.  But  he  shall  not  blow  both  hot  and  cold  at  the  same 
time.    I  Term  Rep.  387.*'' 

I  proceed  now  to  consider  and  remark  on  the  authorities  adduced 
bv  the  defendant's  counsel. 

In  Whitebread  v.  Brookbank,  Cowp.  69,  Lord  Mansfield  said  "it 
might  be  of  great  inconvenience,  if  the  case  "should  hereafter  be 
made  a  precedent,  that  an  action  for  money  had  and  received  Avill 
lie  against  an  officer  of  revenue  for  an  over  payment."^"  The  reso- 
lution therefore  is  founded  on  principles  of  general  policy,  the  reve- 
nue being  materially  interested  in  the  construction  of  the  statute  of 
I  Geo.  3.  c.  7.  §  6,  granting  a  bounty  on  the  exportation  of. beer, 
made  from  malted  corn.  The  present  is  a  mere  controversy  between 
individuals. 

In  Lindon  v.  Hooper,  Cowp.  414,  it  was  held,  that  an  action  for 
money  had  and  received,  does  not  lie  to  recover  back  money  paid 
for  the  release  of  cattle  damage  feasant,  though  the  distress  were 
wrongful.  The  reasons  are  given :  the  case  is  singular  and  depends 
on  a  peculiar  system  of  strict  positive  law,  which  has  provided  two 
precise  remedies,  replevin  or  trespass,  in  both  of  which  the  plain- 
tiff must  specially  reply  a  right  of  common  or  some  otlier  title,  as  a 
justification  of  the  cattle  being  where  they  were  taken.  "But  if 
assumpsit  might  be  brought  in  such  a  case,  the  defendant  might  be 
surprised  at  the  trial.  He  could  not  be  prepared  to  make  his  de- 
fense;  he  could  not  tell  what  sort  of  right  of  common,  or  other 
justification  the  j)1aintiff  might  set  up.    The  plaintiff'  might  shift  his 


"'  One  who  waives  the  tort  and  sues  in  assumpsit  is  bound  by  his  election. 
Lythgoe  v.  Vernon,  5  H.  &  N.  180  (i860)  ;  Reynolds  v  Fenton,  2  Phila.  (Pa.) 
2(>8  (1857)  ;  JVare  v.  Percival,  61  Maine  391X1872)  ;  tinlay  v.  Hryson,  84  Mo. 
664  (1884)  ;  Nicld  V.  Burton,  49  Mich.  53  (1882)  ;  Beider  v.  Fuller,  106  Mich. 
342  (1895). 

""McMillan  v.  Eastman,  4  Mass.  378  (1808)  ;  Charleston  v.  Stacy,  10  Vt. 
:;62  (1838)  ;  Seitzinjier  v.  Strinhcraer.  22  Pa.  379  (1850)  ;  Scliool  District  v. 
Tehhets,  67  Maine  239~Ti877),  but  compare  Mott  v.  Pettit,  i  N.  J.  L.  298 
(1795)  ;  Gibson  County  v.  Harrington,  i  Blackf.  find.)  260  (1823). 


PETER  Z:   STEEL  205 

prescription  as  often  as  he  pleased,  or  he  might  rest  upon  objec- 
tions to  the  regularity  of  the  distress.  The  plaintiff  can  never  be  suf- 
fered to  throw  such  a  difficulty  upon  his  adverse  party.  Besides  as 
applied  to  the  subject-matter  of  this  question,  the  action  for  money 
had  and  received  could  never  answer  the  equitable  end  for  which  it 
was  invented,  and  deserves  to  be  encouraged.  For  the  point  to  be 
tried  therein,  whether  the  plaintiff's  cattle  trespassed  on  the  de- 
fendant's land,  may  depend  on  the  plaintift''s  right,  or  defendant's 
right,  or  the  fact  of  trespassing,  or  it  may  depend  on  mere  form. 
It  would  be  unequal  and  unjust,  as  between  the  parties,  to  suffer  as- 
sumpsit to  be  substituted  in  lieu  of  an  action  of  trespass,  and  would 
create  inconvenience  by  leaving  rights  of  common  open  to  repeated 
litigation,  and  depriving  posterity  of  the  benefit  of  precise  judg- 
ments upon  record."'*^ 

Lord  Mansfield  further  observed,  that  "there  was  a  material 
distinction  between  the  case  then  before  the  court  and  the  instances 
.alluded  to  at  the  bar,  where  the  plaintiff  is  allowed  to  waive  the 
trespass  and  bring  action  for  money  had  and  received.  In  the  lat- 
ter, the  relief  is  more  favorable  to  the  defendant.  He  is  liable  to 
refund  only  v^diat  he  has  actually  received,  contrary  to  conscience 
and  equity ;  and  the  plaintiff,  by  electing  this  mode  of  action,  eases 
the  defendant  of  special  pleading,  and  takes  the  risk  of  being  sur- 
])rised  tipon  himself." 

On  the  most  careful  consideration  of  this  case,  I  am  satisfied  that 
not  a  single  reason  which  influenced  the  court's  decision  in  Lindon 
V.  Hooper,  applies  to  the  case  now  before  us ;  and  that  all  the 
grounds  of  suffering  assumpsits  to  be  brought  where  the  wrong  is 
dispensed  with,  unite  in  the  present  instance,  and  fortify  the  mode 
of  action  which  has  been  pursued. 

The  observation  of  the  court  in  Rapalje  et  al.  v.  Emory,  2  Dall. 
54,  55,  goes  merely  to  the  identifying  of  money  and  tracing  it  into 
the  hands  of  an  utter  stranger,  according  to  the  distinction  laid 
down  in  Cowp.  200. 

\Miere  one  does  work  for  another  by  compulsion,  whom  he  is 
under  no  legal  or  moral  obligation  to  serve,  the  law  will,  I  think, 
imply  and  raise  a  promise  on  the  part  of  the  person  benefited 
thereby,  to  make  him  a  reasonable  recompence ;  and  as  I  have  not 
been'abTe  to  discover  any  solid  ground  of  objection  against  the  plain- 
tiff's sustaining  the  form  in  which  this  action  has  been  conceived,  I  / 
am  of  opinion  that  the  nonsuit  should  be  set  aside,  and  the  costs  tot 
await  the  determination  of  the  suit.  Of  the  merits  of  the  plaintiff's, 
demand,  the  jury  are  the  constitutional  judges. 

Smith  and  Brackenridge,  justices,  concurred;  Shippen,  C.  J., 
took  no  part  in  the  decision. 

Nonsuit  set  aside  and  new  trial  awarded. "- 


"'Accord:  Webber  v.  Aldrich,  2  N.  H.  461  (1822)  ;  Colwell  v.  Perden,  3 
Watts  (Pa.)  327  (1834).  ■" 

'■'-  Higgins  v.  Brecn,  9  Mo.  493  (184.S)  ;  Abbott  v.  Freemont,  34  N.  H.  43 
(1857);  Hickam  v.  Hickam,  46  Mo.  App.  496  (1891),  similar  to  principal 
case.  While  assumpsit  may  be  the  remedy,  the  circumstances  may  be  such 
as  to  rebut  tlie  implication  of  a  promise  to  pay.    Uric  v.  Johnstonj\  P.  &  W. 


20<J  ACTIONS 

BOARD  Ol'    11K;11W.W   C(\M  M  ISSIONERS 
V.   BLOOAIINGTON. 

Supreme  Court  t)i-  Illinois,  1912. 
253  ///.  164. 

The  Board  of  Highway  Commissioners  of  the  town  of  Bloom- 
ington,  in  McLean  County  brought  an  action  of  assumpsit,  based  on 
the  common  counts,  against  the  city  of  Bloomington  to  recover  from 
the  said  city  the  amount  of  taxes  collected  on  property  in  Bloom- 
ington township  located  within  the  corporate  limits  of  the  city  of 
Bloomington  and  paid  over  by  the  collectors  of  revenue  to  the  city  of 
Bloomington  under  the  third  proviso  of  section  16  of  the  Road  and 
Bridge  Law,  as  amended  in  1909.  The  taxes  in  question  were  levied 
under  sections  13  and  14  of  the  Road  and  Bridge  Law  in  1909  and 
were  collected  and  paid  over  to  the  city  in  1910.  At  the  December 
term,  1910,  of  this  court,  in  the  case  of  People  v.  Fox,  247  111.  402, 
this  court  held  that  the  third  proviso  of  said  section  16  of  the  Road 
and  Bridge  Law  was  unconstitutional  and  void,  in  that  it  granted  a 
special  privilege  to  certain  cities  based  ujwn  a  mere  arbitrary  classi- 
fication. Upon  the  assumption  that  the  decision  of  this  court  in  the 
Fox  case  established  the  right  of  the  board  of  highway  commis- 
sioners to  the  money  paid  over  to  the  city  under  the  unconstitutional 
proviso  of  section  16,  said  highway  commissioners  brought  this 
action  of  assumpsit  and  recovered  a  judgment  for  the  amount  so 
paid  over  and  $1,384.93  interest.  From  this  judgment  the  city  of 
Bloomington  has  prosecuted  the  present  appeal. "'^ 


(Pa.)  212  (1831)  ;  Sloss  I.  &  S.  Co.  v.  Harvey,  116  Ala.  656  (1897)  ;  Thomp- 
son V.  Broiik,  126  Mich.  455  (1901). 

The  owner  .of  personal  property  tojtipusly  taken  and  converted  into 
moiiev  or  money's  worth,  may  "waive  tlietort  and  sue  io  .assumpsit.  Young 
V.  Marshall,  8  Bingham  43  (1831)  ;  Russell  v.  Bell,  10  M.  &  W.  340  (1842)  ; 
Hanibly  v.  Trott,  Cowpcr  371  (1776),  at  page  2>7h',  Dun  das  v.  MuJiloLhcm, 
35  Pa-  351  (i860)  ;  Nordcn  v.  Jones,  22,  Wis.  600  (1873I  ;  1/  estcott  v.  Sharp, 
50  X.  T.  L.  392  (1887);  Chittenden  v.  Pratt,  89  Cal.  178  (1891);  Pryor  v., 
Morgatij  170  Pa.  568  (1895)  ;  St.  John  v.  Antrim  I.  Co.,  122  Mich.  68  (1899)  ; 
Phelps  V.  Church,  etc.,  99  Fed.  683  (1900).  But  the  authorities  are  in  conflict 
as  to  whether  assumpsit  will  lie  where  the  chattels  have  not  been  sold  or  dis- 
posed of.  Among  the  cases  denying  the  right  of  action  are,  Jones  v.  Hoar, 
5  Pick.  (Mass.)  285  (1827);  Willet  v.  Willct.  3  \Vatts  (Pa.)  277  (1834); 
Crov.'  V.  Boyd,  17  Ala.  51  ( 1849)  ;  l^mTtTrvTSmit h ,  43  N.  H.  536  (1862)  ;  Car- 
son River  ll.  Co.  v.  Bassett,  2  Nev.  249  (1866)  ;  Paine  v.  McGlinchy,  56  Maine 
50  (1868);  Johnston  v.  Deverill,  61  111.  316  (1871);  Satterlce  \  MeHc_LJ2(x 
Pa.  62  (1874)  ;  Grinnell  v.  Anderson,  122  Mich.  533  (1899);  Woodruff  v. 
Zahan,  133  Ga.  24  (1909).  Among  those  supporting  the  right  of  action  are 
Terry  v.  Munger,  121  N.  Y.  161  (1890)  ;  McComb  v.  Guild,  9  Lea  (Tenn.) 
81  (1882)  ;  Evans  v.  Miller,  58  Miss.  120  (1880)  ;  Gordon  v.  Bruner,  49  Mo. 
570  (1872);  Braithzi'aite  v.  Akin,  3  N.  Dak.  365  (1893).  And  see  Rees  v. 
Jl'estern  P..  Society   44  Pa.  Super.  Ct.  ^381   (1910). 

U  here  the  right  of  action  arises  out  ot  negligence,  the  injured  person 
can  not  waive  the  tort  and  sue  in  assumpsit  for  monej-  paid  for  medical  at- 
tendance.  Plefka  V.  Detroit  U.  R.,  147  Mich.  641   (1907). 

""  Only  a  portion  of  the  opinion  is  printed. 


HIGHWAY  COMMISSIONERS  V.   BLOOMINGTON  20y 

ViCKERS,  J.:  Appellant  next  contends  that  there  can  be  no  re- 
covery in  this  action  because  there  is  no  privity  between  the  parties 
to  the  suit  and  no  basis  in  the  evidence  for  the  finding  that  the 
money  in  cjuestion  was  received  by  appellant  for  the  use  of 
appellee. 

The  action  of  assumpsit  was  devised  for  the  purpose  of  recover- 
ing damages  for  the  nonperformance  of  a  parol  or  simple  contract. 
(3  Johns.  Cases  60.)  The  word  is  derived  from  the  Latin  assumere, 
meaning  to  assume  or  to  undertake.  (Bouvier's  Law  Diet.)  In  the 
law  of  contracts  the  word  v/as  understood  as  an  undertaking,  either 
express  or  implied,  to  perform  a  parol  agreement.  An  "express 
assumpsit,"  by  the  common  law,  v^-as  "an  undertaking  made  orally, 
by  writing  not  under  seal  or  by  matter  of  record,  to  perform  an  act 
or  to  pay  a  sum  of  money  to  another."  An  "implied  assumpsit" 
was  defined  to  be  "an  undertaking  presumed,  in  law,  to  have  been 
made  by  a  party  from  his  conduct,  although  he  has  not  made  any 
express  promise."  (Bouvier's  Lav\^  Diet.)  There  v'ere  two  general 
forms  in  the  action  of  assumpsit.  "Special  assumpsit"  was  brought 
upon  an  express  contract  or  promise,  while  "general  assumpsit"  was 
brought  upon  an  implied  contract.    (2  Smith's  Leading  Cases,  14.) 

It  will  thus  be  seen  that  there  is  a  general  agreement  between 
a  special  assumpsit  and  an  express  contract,  and  general  assump- 
sit and  an  implied  contract.  As  ordinarily  understood,  the  only  dif- 
ference between  an  express  contract  and  an  im.plied  contract  is, 
that  in  the  former  the  parties  arrive  at  their  agreement  by  words, 
either  oral  or  written,  sealed  or  unsealed,  while  in  the  latter  their 
agreement  is  arrived  at  by  a  consideration  of  their  acts  and  conduct. 
(2  Page  on  Contracts,  sec.  771.)  In  both  of  these  cases  there  is,  in 
fact,  a  contract  existing  between  the  parties,  the  only  difference  being 
in  the  character  of  evidence  necessary  to  establish  it.  A  familiar 
illustration  of  an  implied  contract  is,  where  one  person,  in  the  ab- 
sence of  any  express  agreement,  renders  valuable  services  to  an- 
other which  are  knowingly  accepted  by  such  other,  the  law  will  im- 
ply a  promise  to  pay  a  fair  and  reasonable  compensation  for  such 
services.  (McFarlane  v.  Dawson,  125  Ala.  428.)  If  an  attorney 
renders  services  without  any  express  agreement  as  to  the  amount  of 
compensation  to  be  received,  the  law  implies  a  promise  to  pay  him 
reasonable  compensation  for  the  work  done.  (Miller  v.  Tracey,  86 
Wis.  330.)  These  illustrations  are  examples  of  genuine  implied  con- 
tracts, in  all  of  which  there  is  some  act  or  line  of  conduct  as  a  basis 
for  the  implication  and  which  furnishes  the  necessary  privity  to  sup- 
port the  action  of  general  assumpsit.  This  class  of  implied  con- 
tracts is  som.etimes  called  contracts  implied  as  of  fact  (Page  on 
Contracts,  supra.) 

After  subtracting  express  contracts  and  contracts  implied  in 
fact,  there  is  still  left  another  large  class  of  obligations,  to  enforce 
which  the  action  of  general  assumpsit  is  a  well  established  remedy. 
The  principle  upon  which  this  latter  class  of  obligations  rests  is 
equitable  in  its  nature,  and  was,  like  most  other  equitable  principles, 
derived  from  the  civil  law.  This  obligation  was  under  the  civil  law 
designated  "quasi-contractus."  Stated  as  a  civil  law  principle,  it  was 


JCX*^  AITKIN  S 

"an  oMii^ation  similar  in  character  to  that  of  a  contract,  but  wliich 
arises  not  from  an  aj2;reenient  of  parties  but  from  some  relation 
between  them  or  from  a  voluntary  act  of  one  of  them,  or, 
stated  in  other  lans^uage,  an  obli.ji^ation  sprinj^ing;  from  volun- 
tary and  lawful  acts  of  parties  in  the  al)scnce  of  any  agree- 
ment." (Mowe's  Studies  of  Civil  Law,  171;  Morey  on  Roman 
Law,  371.)  In  quasi  contracts  the  obligation  arises  not  from  con- 
sent, as  in  the  case  of  contracts,  but  from  the  law  or  natural 
equity.  "The  term  was  not  found  in  the  common  law,  but  it  has 
been  taken  by  writers  upon  the  common  law  from  the  Roman  law 
and  may  be  considered  now  as  quite  domesticated,  even  to  the  ex- 
tent of  being  used  as  the  title  of  a  very  valuable  common-law  text- 
book. Keener  on  Quasi  Contracts."  (Bouvier's  Law  Diet.)  Page, 
in  his  late  work  on  contracts  (vol.  2,  p.  1166),  in  discussing  the  term 
"quasi  contract"  says:  "The  term  'quasi  contract,'  while  but  little 
used  in  law,  is  a  term  of  considerable  antiquity  in  English  law.  The 
term  'quasi  ex  contractu'  is  used  in  Bracton  to  include  'agency, 
wardship,  the  division  of  common  property,  the  distribution  of  an 
inheritance,  an  action  arising  out  of  a  testament,  a  suit  to  require  a 
sum  paid  not  due,  and  such  like'." 

The  class  of  obligations  now  under  consideration,  and  which 
are  treated  in  works  on  contracts  as  "contracts  implied  in  law,"  or 
quasi  contracts,  are  recognized  and  enforced  by  common-law  courts 
by  means  of  a  general  assumpsit.  The  liability  exists  from  an  impli- 
cation of  law  that  arises  from  the  facts  and  circumstances  indepen- 
dent of  agreement  or  presumed  intention.  (Pract  v.  Daniels,  20 
Colo.  100.)  In  this  class  of  cases  the  notion  of  a  contract  is  purely 
fictitious.  There  are  none  of  the  elements  of  a  contract  that  are  nec- 
essarily present.  The  intention  of  the  parties  in  such  case  is  entirely 
disregarded,  while  in  cases  of  express  and  implied  contracts  in  fact 
the  intention  is  of  the  essence  of  the  transaction.  In  the  case  of 
contracts  the  parties  fix  their  terms  and  set  the  bounds  upon  their 
liability.  As  has  been  well  said,  in  the  case  of  contracts  the  agree- 
ment defines  the  duty,  while  in  the  latter  class  of  cases  "the  duty 
defines  the  contract."  (Herfcog  v.  Hertzoq,  2Q  Pa.  St.  468;  Cohun- 
bus,  Hocking  Valley  and  Toledo  Railzn'ay  Co.  v  Gaffncy\6^  Ohio  St. 
104;  61  N.  E.  Rep.  152.)  The  action  of  assumpsit,  under  the  com- 
mon counts  for  money  had  and  received,  is  an  appropriate  remedy 
to  enforce  the  equitable  obligation  arising  from  the  receipt  of  money 
by  one  person  which  belongs  to  another  and  which  in  equity  and 
justice  should  be  returned.  (Gaines  v.  Miller,  tti  U.  S.  395;  Pauly 
7'.  Pauly,  107  Cal.  8;  Brown  v.  Woodzvord,  75  Conn.  254;  Wilson 
V.  Turner,  164  111.  398.)  The  action  is  in  form  ex  contractu,  but 
the  alleged  contract  being  purely  fictitious,  the  right  to  recover 
does  not  depend  upon  any  principles  of  privity  of  contract "betvveen 
the  plaintiff  and  the  defendant  and  no  privity  is  necessary:  "(2  Pa^e 
on  Contracts,  sec.  7^9,  and  cases  there  cited.)  The  right  to  recoyer 
b  governed  by  principles  of  equity  although  the  action  is  at  Mw.  The 
action  is  maintainable  in  all  cases  where  one  person  has  received 
money  or  its  equivalent  under  such  circumstances  that  in  equity  and 
good  conscience  he  ought  not  to  retain  it  and  which  ex  aequo  et  bono 


HIGHWAY  COM^rISSIONERS  V.  BLOOMINGTON  209 

belongs  to  another.  (Jackson  v.  Hough,  38  W.  Va.  236;  Merchant's 
Bank  v.  Barnes,  47  L.  R.  A.  737.)  A  few  cases  illustrating  the  ap- 
plication of  the  principle  under  consideration  will  be  sufficient  to 
enable  us  to  determine  the  question  now  under  discussion. 

Where  A  receives  money  from  X  which  belongs  to  B,  without 
B's  consent,  the  general  rule  is  that  in  the  absence  of  special  cir- 
cumstances B  may  recover  such  money  from  A.  ( United  States  v. 
Bank,  96  U.  S.  30.)  Where  a  sheriff  retains  money  which  he  claims 
to  be  due  him  as  commission,  but  which  legally  belongs  to  a  board 
of  education,  he  is  liable  in  an  action  for  money  had  and  received. 
(Socorro  Board  of  Education  v.  Robinson,  7  N.  M.  231.)  A  public 
quasi  corporation,  such  as  a  county,  which  receives  taxes  and  ap- 
plies them  all  to  its  own  use  when  it  should  pay  bonds  issued  by  the 
town  out  of  such  taxes,  is  liable  to  such  town  therefor.  (Strough 
V.  Jefferson  County,  119  N.  Y.  212,  23  N.  E.  Rep.  552.)  Where  a 
county  receives  money  belonging  to  other  persons  without  authority 
it  must  refund  to  such  persons.    (Chapman  v.  County  of  Douglas, 

107  U.  wS.  348.)  Where  taxes  are  paid  to  a  county  by  a  sheriff  when 
they  should  have  been  paid  to  a  city,  the  city  may  recover  such  taxes 
from  the  county.  (SaJem-w  Marion  County,  25  Ore.  449,  36  Pac. 
Rep.  163.)  Where  a  county  is  divided  and  the  original  county  is 
legally  entitled  to  the  taxes  when  the  division  was  made,  but  which 
had  not  been  then  paid  but  the  state  official  through  whose  hands 
such  taxes  passed  paid  a  part  thereof  to  the  new  county,  the  orig- 
inal county  may  recover  such  taxes  from  the  new  county.  (Colusa 
County  v.  Glen  County,  117  Cal.  434,  49  Pac.  Rep.  457.)  Where  a 
stockholder  receives  dividends  from  a  corporation  which  he  knows 
to  be  insolvent  and  that  such  dividends  are  paid  out  of  the  capital  of 
the  corporation,  he  may  be  compelled  to  repay  such  dividends  in  an 
action  brought  by  the  receiver  of  the  company.    (Warren  v.  King, 

108  U.  S.  389.)  Where  a  school  trustee  expends  money  for  the 
actual  benefit  of  township  schools  which  by  law  he  is  required  to 
pay  over  to  another  school  corporation,  such  township  is  liable  to 
such  corporation  for  the  amount  of  money  thus  expended.  (Center 
School  Tozvnship  v.  School  Conirs.,  150  Ind.  168,  49  N.  E.  Rep.  961.) 
In  State  v.  St.  Johnsbury,  59  Vt.  332,  it  was  held  that  where  fines 
were  imj)roperly  paid  to  a  village  instead  of  tlie  county  clerk  for  the 
use  of  the  state,  an  action  for  money  had  and  received  was  main- 
tainable by  the  state  against  the  village.  This  case  reviews  many 
cases,  both  English  and  American,  and  reaches  the  conclusion  that 
the  action  was  properly  brought,  and  that  no  privity  other  than  that 
implied  by  laws  was  necessary. 

The  facts  in  the  case  at  bar  are,  that  appellant  received  from 
the  collectors  of  taxes  the  money  here  sought  to  be  recovered.  At 
the  time  this  money  was  paid  oyer  by  the  collectors  and  received  by 
appellant  there  was  in  the  statute  a  provision  which,  had  it  been 
valid,  would  have  settled  the  right  of  appellant  to  this  money.  The 
statute,  however,  under  which  this  money  was  received  by  appel- 
lant has  been  declared  unconstitutional.  To  be  sure,  the  decision  of 
this  court,  declaring  said  statute  unconstitutional,  was  rendered  after 
14 — Civ.  Proc. 


2IO  ACTIONS 

tho  moncv  had  been  paid  over  to  apiicllant.  hut  this  circumstance 
docs  not  aiTcct  the  lethal  status  of  the  parties  in  the  least.  The  rule 
is  universal  that  an  unconstitutional  law  confers  no  rij^ht,  imposes 
no  duty  and  afForils  no  protection.  It  is  in  legal  contemplation  as 
though  no  such  law  had  ever  been  passed.  {Norton  v.  Shelby, 
iiS  U.  S.  425.)  There  being  no  question  of  wrongful  intention  on 
the  part  of  anyone  in  connection  with  this  transaction,  the  unconsti- 
tutional statute  must  be  eliminated  from  all  consideration.  With  this 
statute  out  of  view  the  situation  is  simpliiied.  We  merely  have  the 
case  of  the  collectors  of  taxes  voluntarily  paying  to  the  appellant, 
and  the  appellant  voluntarily  receiving,  public  funds  which  under 
the  law  belong  to  Bloomington  township.  The  money  in  question 
must  be  conclusively  presumed  to  have  been  levied  and  paid  by  tlie 
taxpayers  for  the  benefit  of  the  only  municipality  that  had  a  legal 
right  to  receive  it.  The  equitable  right  to  this  fund  follows  the  legal 
title  thereto.  Applying  the  foregoing  principles  to  tliese  facts,  we 
have  no  hesitation  in  coming  to  the  conclusion  that  an  action  of 
assumpsit  for  money  had  and  received  to  the  use  of  appellee  is 
maintainable  to  recover  the  money  in  question,  and  that  it  is  not 
necessary  that  tliere  should  be  any  privity  whatever  between  the 
parties  other  than  such  privity  as  is  imiilied  by  law,  to  warrant  a 
recovery.^* 

Judgment  afifirmed. 


PARKER  V.  CLEMMONS.  ^ 

Supreme  Court  of  Vermont,  1908. 

80  Vt.  521. 

;ii'il>^it  in  the  common  money  counts.    Plea,  the  gen- 
(  i  rial    by    court   at   the   March    Term,    1907,    Rutland 

County,  Waterman,  J.,  presiding.   Judgment  for  the  plaintiffs.    The 
defendant  excepted.  The  opinion  states  the  case."^ 

Tyler,  J. :  Assumpsit  with  common  counts  f^  plea,  the  general 
issue.  It  appeared  by  an  agreed  statement  of  facts  that  the  de- 
fendant  was  manager  of  a  telephone  company  and  was  engaged, 
with  an  assistant,  in  wiring^ a  business_block  in  Eair.Jiaven.;  that 
while  so  engaged  thVassistant,  in  the  defendant's  absence  from  the 


**  Accord:  Trowcr  v.  San  Francisco,  152  Cal.  470  (1907),  15  L.  R-  A. 
(N.  S.)  183  and  note;  Bxiits  Co.  v.  Jackson,  I2g  Ga.  801  (1908),  15  L.  R.  A. 
(N.  S.)  567  and  note;  Luther  v.  Wheeler,  73  S.  Car.  83  (1905)  ;  Allsman  v. 
Oklahoma  City,  21  Okla.  142  (1908),  c.  f . ;  Phoebus  v.  Manhattan  Social  Club. 
105  Va.  144  (1906),  8  Amer.  &  Eng.  Ann.  Cas.  667  and  note. 

"  The  arguments  of  counsel  are  omitted. 

"*  These  are  counts  framed  in  certain  conventional  forms  alleging  a  debt 
founded  on  one  of  the  several  causes  of  action  from  which  the  law  implies  a 
promise  to  pay,  as  distinguished  from  special  counts  framed  upon  the  particu- 
lar circumstances  of  the  case.  Those  usually  employed  w  ere  of  four  kinds : 
(i),  the  indebitatus  count;  (2),  the  quantum  meruit;  (3),  the  quantum  vale- 
bat;  (4),  the  insimnl  computassent  or  account  stated.  Those  arising  out  of 
monev  transactions  were  called  the  money  counts.   The  forms  of  these  counts 


PARKER  Z'.   CLEMMONS  211 

room,  accidently  overturned  a  jar  of  chemical  fluid;  that  the  fluid 
ran  out,  leaked  through  the  floor  into  the  plaintiff's  jewely  store 
and  injured  various  articles  therein.    The  defendant  was  not  em- 
ployed by  the  telephone  company,  but  was  in  charge  of  the  work 
at  the  request  of  the  son  of  the  owner  of  the  block,  and  the  assist- 
ant was  also  employed  by  him.    When  the  plaintiff  discovered  the'\ 
injury  to  his  goods  he  sent  for  the  defendant,  showed  them  to  him  i 
and  informed  him  that  part  of  them  would  have  to  be  sent  away  to  ( 
be  repaired.    The  defendant  then  promised  the  plaintiff  that  he 
would  pay  him  the  amount  of  the  damage  when  he  ascertained  what 
it  was.    The  plaintiff  had  the  goods  repaired,  showed  the  bill  there-  , 
for  to  tlie  defendant,  who  at  first  agreed  to  pay  it,  but  afterwards  i 
refused  unless  the  owner  of  the  block  would  pay  one-half,  which  ' 
the  latter  would  not  do. 

No  question  was  made  in  the  argument  other  than  whether  a 
recovery  could  be  had  under  any  of  the  common  counts. 
"^     Tf  is  clear  that  the  "work  and  labor  performed"  upon  the  goods 
were  for  the  plaintiff"  and  not  for  the  defendant,  and  the  same  is 
true  in  respect  to  "money  laid  out  and  expended."     Indeed,  all  the  / 
common  counts  are  founded  on  express  or  implied  promises  to  pay/ 
money  in  consideration  of  antecedent  debts. ^"  j 

This  case  does  not  fall  within  either  of  the  first  three  divisions 
made  in  the  text-books, — indebitatus  assumpsit,  quantum  meruit,  or 
quantum  valehat.  The  plaintiff  contends  that  the  count  for  an  ac- 
count stated  will  lie,  but  we  think  that  his  demand  does  not  fall 
within  the  definition  of  an  account.  It  was  said  by  Chief  Justice 
Shaw  in  Whitwell  v.  Willard,  i  Mete.  216  that  the  primary  idea  of 
account  computatio,  is  some  matter  of  debt  and  credit,  or  demands 
in  the  nature  of  debt  and  credit,  between  parties ;  that  it  implies  that 
one  is  responsible  to  another  for  moneys  or  other  things,  either  on 
the  score  of  contract  or  of  some  fiduciarv  relation.     It  is  doubt- 


were  not  in  accord  with  the  strict  rules  of  pleading,  and  Lord  Holt  is  stated 
to  have  said  that  he  was  a  bold  man  who  first  ventured  on  them.  Hayes  v. 
Warren,  2  Str.  933  (1732),  but  they  firm\y  established  themselves  in  practice 
and  practically  supplanted  special  counts  for  common  debts  or  money  de- 
mands. I  Chitty  on  Pleading,  342.  For  the  forms  of  the  counts  in  indebitatus 
assumpsit,  see  2  Encyclopaedia  of  Forms,  p.  297.  The  common  counts  were 
made  more  concise  in  England  by  the  rules  of  Trinity  Term  I  William  IV, 
see  7  Bingham  781  (1831).  In  most  of  the  code  states  a  complaint  in  the 
form  of  the  common  counts  is  sufficient.  Allen  v.  Carpenter,  7  N.  Y.  476 
C1852)  ;  Freeborn  v.  Glazcr,  10  Cal.  337  (1858)  ;  Kerstetter  v.  Richmond,  10 
Ind.  199  (1858)  ;  Grannis  v.  Hooker,  29  Wis.  65  (1871)  ;  Jones  v.  Mial,  82  N. 
Car.  253  (1880)  ;  Dunnett  v.  Thornton,  73  Conn,  i  (1900).  Contra:  Foerster 
V.  Kirkpatrick,  2  Minn.  210  (185S)  ;  Boivcn  v.  Chambers,  3  Ore.  452  (1869).. 
Since  the  act  of  May  25,  1887,  P.  L.  271,  the  common  counts  as  such  are] 
obsolete  in  Pennsylvania.  Bank  v.  Kopit3Sch,ji6i  Pa.  134  (1894).  In  Massa- / 
chusetts  the  plaintiff  may  use  one  ot  the  common  counts  "when  the  natural  I 
import  of  its  terms  correctly  describes  the  cause  of  action."  Revised  Laws, 
ch.  173,  §  6,  pi.  7;  Channan  v.  Henshaiv,  81  Mass.  293  (i860),  or  a  count  on 
an  account  annexed  may  be  used,  Avhenever  the  cause  of  action  would  be  cor- 
rectlv  .described  by  anv  of  the  common  counts  at  law.  Stearns  v.  IVaslibnrn, 
73  Mass.  187  (1856). 

'^'Chicago  v.  Chicago  &  N.  R.  Co.,  130  III.  300  (1900)  ;  Stcztart  M.  Co.  v. 
iron  Clad  M.  Co.,  67  N.  J.  L.  577  (1902). 


JIJ  ACTIONS 

loss  true,  however,  that  it  would  be  sufficient  to  come  within  the 
dcfuiition  it  the  accounts  were  all  on  one  side,  provided  the  amount 
were  ag^recd  to  by  the  parties.  Langdon  v.  Roane's  .Idiiir-,  41  Am. 
Dec.  60  and  note. 

The  form  adopted  by  Chitty  and  ever  since  followed  is  that, 
"the  defendant  accounted  with  the  plaintiff  of  and  concerning  divers 
sums  of  iiKMiey  bf fore  then  due  from  the  defendant  to  the  ]:)laintiff 
and  then  in  arrear  and  unpaid,  and  that  u]K)n  such  accounting  the 
defendant  was  found  to  be  in  arrear  to  the  plaintiff  in  a  named  sum, 
and  that  being  so  found  in  arrear  and  indebted,  the  defendant  in 
consideration  thereof  undertook  and  faithfully  promised,"  etc.,  and 
the  allegation  of  the  breach  in  this  as  in  the  other  common  counts 
is:  "Yet  the  defendant,  not  regarding  his  said  promises,  *  *  * 
had  not,  although  often  requested,  as  yet  paid  said  sum  of  money," 
etc. 

Bouvier  defines  "account  stated"  as  an  agreed  balance  of  ac- 
count. It  was  held  in  Comer  v.  f/'av,  107  Ala.  300,  54  Am.  St.  Rep. 
93,  that  an  account  stated  is  an  account  balanced,  and  rendered,  with 
an  assent  to  the  balance,  express  or  implied,  so  that  the  demand  is 
essentially  the  same  as  if  a  promissory  note  had  been  given  for  the 
balance.    See  also,  2  Ency.  PI.  &  Pr.  1024. 

We  also  refer  to  some  of  the  earlier  authorities.  It  is  said  in  i 
Saund.  PI.  &  Ev.  5th.  ed.,  page  47,  in  respect  to  a  recovery  upon 
this  count,  that  it  must  be  proved  that  the  account  was  "of  money  or 
a  debt."  It  is  also  there  said  that  an  account  stated  does  not  alter 
the  nature  of  the  original  debt.  It  wa^  held  in  Knowles  v.  Mitchell, 
13  East  240,  that  an  admission  by  the  defendant  that  a  certain  sum 
was  agreed  to  be  paid  to  the  plaintiff  for  the  sale  of  standing  trees, 
made  after  the  trees  had  been  felled  and  taken  away  by  the  de- 
fendant, would  support  a  count  upon  an  account  stated.  It  was 
decided  in  IVhithead  v.  Howard,  5  Moore  105,  cited  in  Saunders, 
that  a  recovery  could  not  be  had  upon  this  count  because  there  was 
no  existing  antecedent  debt  due  from  the  defendant  to  the  plaintiff. 
U'ilUs  V.  Jernegan,  2  Atk.  251  ;  Peacock  v.  Harris,  10  East  106."^ 

If  the  defendant  in  the  present  case  was  primarily  liable  to  tlie 

Slaintift"  it  was  in  an  action  of  trespass  on  the  case  for  a  tort.    The 
amages  consequent  upon  the  wrongful  act  were  not  a  proper  sub- 
S  ject  of  book  account  and  were  not  treated  as  such  by  the  plaintiff. 
I  He  paid  for  the  repairs  and  took  receipted  bills  for  such  payments. 
The  plaintiff  relies  upon  this  sentence  in  the  opinion  in  Pozvers 
V.  Insurance  Co.,  68  Vt.  on  page  396,  35  Atl.  333,  "It  is  unneces- 
sarv,  in  order  to  support  this  count  (account  stated),  to  show  the 
nature  of  the  original  debt,  or  prove  the  .specific  items  constituting 
the  account,  but  it  must  appear  that  at  the  time  of  the  account  a 


■"An  account  stated  must  he  founded  on  previous  transactions  of  a  mone- 
tary character,  creatine  the  relation  of  debtor  and  creditor.    Allen  v.   Cook, 
2  Dowl.  546  (1834)  ;  Clarke  v.  I'Vebb,  2  Dowl.  671  (1834)  ;  Lubbock  v.  Tribe, 
'  3  M.  &  W.  607  (1838)  ;  Lock'Mood  v.  Thome,  11  N.  Y.  170  (1854)  ;  Mellon jf^ 
CawpbjJLji  Y^-  415  (1849);  Chaac  v.  Chase,  191  Mass.  556  {Kiobp,  Flssc"^ 
Hlonke,  liflAo.  App.  422  (1907)- 


WIIITTAKER  V.   STANGVICK  213 

certain  claim  existed,  of  and  concerning  which  an  account  was 
stated."  That  the  court  was  not  considering  the  right  of  a  party  to 
recover  for  a  tort  in  an  account  stated  is  apparent  from  the  fact 
that  the  plaintiff  in  that  case  was  seeking  to  recover  upon  an  insur- 
ance contract  and  an  amount  that  he  claimed  had  been  agreed  upon. 

Bradley  v.  Phillips,  52  Vt.  517,  is  distinguishable  from  the  pres- 
ent case.  There  the  parties,  being  owners  of  adjoining  lands,  each 
had  cut  logs  over  the  line  on  the  other's  land.  They  settled  by  an 
agreement  that  each  should  pay  the  other  at  specified  rates  for  the 
logs  taken,  and  the  plaintiff  had  paid  the  defendant.  But  the  latter, , 
though  having  taken  the  property  and  having  promised  to  pay  for 
it  and  having  induced  the  plaintiff  to  pay  for  what  he  had  taken, 
refused  to  pay  the  plaintiff.  The  court  held  that  the  question  was 
one  purely  of  contract;  that  the  defendant's  agreement  was  to  pay 
the  plaintiff  for  what  logs  he  had  taken ;  that  nothing  remained  for 
him  to  do  but  pay  over  the  money,  and  that  the  plaintiff  could  re- 
cover upon  the  common  counts.  The  defendant's  liability  was  the 
same  as  if  he  had  bought  the  logs  and  promised  to  pay  the  plaintiff 
for  them.  The  parties,  in  legal  effect,  waived  their  respective  claims 
for  torts,  settled  their  claims  and  promised  to  pay  each  other  the 
sums  agreed  upon  for  the  logs  each  had  taken,  whereupon  each  be- 
came the  other's  debtor.  In  the  case  before  us  the  defendant  did 
not  become  tlie  plaintiff's  debtor,  and  upon  the  authorities  he  can 
not  recover  upon  the  count  for  an  account  stated. 

Judgment  reversed  and  cause  remanded.''^  , 

(i)  Trespass.  ^-^^^"^  *  -  i>i^\C^^«y?Z  .. 


WHITTAKER  v.  STANGVICK.'^^  A-^-^-^-r^  ^  £^-' 


Supreme  Court  of  Minnesota,  1907.       '  ,//      P^^'^t 

100  Minn.  386.  /  '* 

Action  in  the  district  court  for  Otter  Tail  County  to  enjoin 
defendants  from  constructing  certain  covers  or  blinds,  from  hunt-, 
ing  or  shooting  ducks  or  other  water  fowl  therefrom,  and  from 
shooting  over  or  across  plaintiff's  land.    The  case  was  tried  before! 


"•""In  Page  v.  Page,  21  N.  H.  389  (1850),  assumpsit  was  brought  on  an  ac- 
count stated  for  damage  done  by  defendant's  cattle  and  for  a  ladder  taken 
without  leave  and  broken.  On  the  trial  evidence  was  introduced  that  defend- 
ant had  promised  to  pay  for  the  damage  without  fixing  any  sum.  A  verdict 
for  these  items  was  set  aside,  as  not  recoverable  in  general  indebitatus  as- 
sumpsit. The  court,  however,  added:  "It  would  be  difficult,  we  think,  to 
frame  any  special  declaration  according  to  these  facts,  that  would  sho^v  a 
legal  consideration  for  the  defendant's  promise.  There  was  no.  liquidation 
of  the  amount  to  be  paid,  no  acceptance  of  the  defendant's  promise  by  the 
plaintiff  in  discharge  of  the  trespass;  nothing  that  in  law  would  amount  to  an 
accord;  nothing  that  the  defendant  could  plead  in  bar  to  an  action  of  trespass 
for  the  original  injury."    See,  also.  Gills  v.  Laing,  4  Camp.  80  (1814)  ;  Allen 


-14  ACTIONS 

Ikixtor.   ).,  who  fouiul  in  favor  of  the  defendants.    From  an  order 
dcnvini:^  a  motion  for  a  new  trial,  i)laintitT  ai)])ealed.' 

J.uxiARP,  I.:  The  plaintitY  and  appellant  son.qht  to  peri^etualiy 
enjoin  defendants  and  respondents  from  construeting  covers  or 
blind>  on  the  snrface  of  a  lake  in  front  of  a  strip  of  land,  to  which 
plaintiil"  claimed  ownership,  sei)arating  two  navigable  lakes;  froml 
hunting  or  shooting  ducks  or  other  water  fowl  therefrom;  and  from 
shooting  across  or  over  the  strip  of  land.  The  court  ordered  judg- 
ment for  the  defendants,  after  trial.  This  appeal  was  taken  from  tlie 
order  denying  a  motion  for  a  new  trial.  The  essential  question  here 
is  whether  the  decision  was  justified  by  the  evidence  and  was  con- 
sistent with  law. 

The  court  found  the  facts  as  follows :  The  plaintiif  owned  the 
long,  narrow  strip,  and  acci-etions,  extending  to  a  creek  connecting 
the  waters  of  the  lakes,  which  formed  what  is  known  as  a  "duck 
pass."  Although  there  was  a  public  highway  over  the  duck  pass,  by 
virtue  of  an  agreement  with  the  supervisors  of  the  township  the 
plaintiif  had  the  right  of  fishing  and  hunting  thereon  to  the  same 
extent  as  though  the  road  had  not  been  laid  out.  The  defendants  and 
\otlier  persons  wrongfully  had  previously  gone  on  plaintiff's  land  at 
Vhe  liighway  and  shot  ducks  and  water  fowl,  and  now^  threaten  to 
continue  to  do  so.  The  effect  of  the  acts  was  to  practically  monop- 
olize the  shooting  privileges  and  to  largely  impair  the  value  of  the 
privileges  to  the  plaintiif  and  her  guests.  The  defendants  had  been 
previously  restrained  by  an  order  of  the  district  court  from  going 
upon  the  highway  for  the  purpose  of  hunting,  and  from  hunting  or 
shooting  ducks  or  other  Avater  fowl  upon  the  highway.  "That  the 
said  defendants  have  heretofore  erected,  and  intend  and  threaten  to 
hereafter  erect,  upon  the  surface  of  Upper  Ten  Mile  lake,  directly 
in  front  of  the  said  pass,  and  at  a  distance  of  about  three  hundred 
twenty-five  feet  from  the  shore  line  thereof,  certain  covers  or  blinds, 
w-ith  the  purpose  and  intention  of  shooting  therefrom  the  wald  ducks 
and  other  water  fowl  flying  over  said  pass,  and  that  in_iiiinling_said 
game  defendants_areJiable_to  shoot  over  plaintiff's  said  land.  That 
"said  lakeTs'ofTarge  extent,  and^t  is  not  necessary  for  the  mere  pur- 
pose of  hunting  or  shooting  the  said  wild  fowl,  that  said  defendants 
should  locate  such  cover  or  blinds  at  the  place  above  mentioned. 
That  the  probable  result  of  such  acts  on  the  part  of  the  defendants 
will  be  to  injuriously  affect  the  facilities  for  shooting  wild  fowl 
afi'orded  by  said  pass ;  and  as  a  consequence  thereof  the  value  of 
said  shooting  privileges  wall  be  to  a  considerable  extent  impaired." 

There  was  testimony  to  the  effect  that  a  shotgun  would  carry 
shot  "probably  four  hundred  feet,  maybe  m.ore  than  that."  In  con- 
sequence, when  persons  in  the  blind  would  shoot  towards  plaintiff's 


V.  WoodzL'ard,  22  N.  H.  544  (1851)  ;  Knickerbocker,  etc.,  Co.  v.  Flail,  3  Nev. 
194  (1867)  ;  Ingersoll  v.  Moss,  44  111.  72  (1891). 

One  who  would  recover  under  a  common  count  must  use  a  count  appro- 
priatel}'  framed  with  reference  to  the  cause  of  action.  Wertheim  v.  Fidelity, 
etc.,  Co.,  72  Vt.  326  (1900)  ;  Sandusky  v.  Oil  Co.,  63  W.  Va.  260  (1907). 

'  Part  of  the  opinion  of  the  court  is  omitted. 


WriITTAKER  V.   STANGVICK  215 

place,  "the  shot  could  not  help  but  drop  around  [plaintiff's]  place, 
on  the  point,  in  the  woods,  or  in  the  timber,  or  across  this  point  here. 
A  certain  amount  of  the  shot  would  go  over  the  pass.  *  *  *  From 
thirty  to  fifty  per  cent,  of  the  shot  would  go  over  the  land  and  on 
the  pass.  It  depends  on  the  winds,  and  which  way  the  ducks  fly. 
*  *  *  In  shooting  ducks  flying  from  the  north,  south,  some  of  these 
ducks  in  the  ordinary  course  of  shooting  naturally  would  fall  when 
they  were  killed,  on  this  pass." 

I.  The  first  question  is  whether  the  facts  found  show  a  tres- 
pass. Defendants  urge  that  the  falling  of  the  shot  and  of  ducks  on 
plaintiff's'^~1and:^not^  ha\-iTTg^  b-een_  s4iown  to  ''become__a  nuisajice, 
cout^~nrrDlr-^'5'"lufficienr^o'~cOTsHtufe  a  trespass3qn,  the^_part 
of  the  defendants.  The  old ~ maxim  that  'the  lav/  does  not  concern 
iTselt  with" trifles'  might  well  be  invoked  here."  This  contention  in- 
volves a  misapprehension  of  the  law  of  trespass. 

With  respect  to  damages  as  an  essential,  the  common  law  recog- 
nizes Uvo  kinds  of  actions.  In  the  first  class  there  is  a  direct  myasion 
of  another'.sj)exson  or  jiroperty  without  permission,  which  is. action- 
ableper  se,  or  \\ii:  ■  •  <>  rise  to  a  piesumption  of  at  least  some 
ctamage,  without  pi  o- > i"  >'i'  any  actual  damage.  Unpermitted  contact 
with  the  peFs"on" constitutes  assault  and  battery.  Unpermitted  inva- 
sion of  premises  constitutes  a  trespass  quare  clausum  fregit.^  In  the 
second  class,  actions  on  the  case,  in  which  the  damages  are  indirect 
and  consequential,  there  can  be  n^^recovery  unless  the  plaintiff 
sEowsTas  an  essential  part  oTTiTs"Tase7 that"3amages ,  pecuniary  in 
iJindi  proximate  in  sequence,  and  substantial  in  extent  have  resulted. 
Tntresnass  ouare  claiisuni  frei/if,  it  is  immaterial  whether  the.  g»aM- 
t!ti::  (if'liarni  suitered  be  .ur*-';t^  Httle,  or  tma^pizecjable^  It  is  true  that 
m  McConico  v.  Singleton,  2  i\Iill,  Const.  244  (S.  C.  1818),  Mr. 
Justice  Johnson  held  that  the  owner  can  not  prevent  others  from 
hunting  wild  game  on  uninclosed  and  uncultivated  lands,  because  to 
recovei-"  in  trespass  you  must  prove  some  actual  injury.  One  quaint 
reason  assigned  was  the  public  concern  that  there  should  be  hunters 
to  form  a  competent  militia  to  oppose  that  great  danger  to  free  insti- 
tutions, a  standing  army.  It  is  elementary  that  the  general  rule  is 
otherwise.  For  example,  in  Patrick  v.  Greemvay  (see  Mellor  v. 
Spateman,  i  Saund.  346b),  the  defendant  angled  in  plaintiff's  sev- 
eral fishery,  but  caught  nothing.  Plaintiff  had  a  verdict,  which  was 
sustained  because  of  the  infringem.ent  of  the  right  which  could  here- 
after be  evidence  of  the  exercise  of  the  right  by  the  defendants." 
And  see,  as  to  fisheries,  13  A.  &  E.  Ency.  (2d  ed.)  584.  As  to  gen- 
eral rule.  Cooper  v.  Crabtree,  per  Jessel,  M.  R.,  20  Ch.  Div.  592 ; 
Feise  v.  Thompson,  i  Taunt.  121 ;  i  Street,  Foundation  of  Liability 
for  Tort,  p.  19;  46  Cent.  Dig.  "Trespass,"  §  15,  col.  271 ;  Id.  §  141, 
col.  480.  Nowhere  is  the  doctrine  better  expressed  than  by  Lord 
Holt,  in  Ashhy  v.  White,  2  Ld.  Raym.  938,  i  Smith's  Lead.  Cas. 
268:  "If  a  man  gives  another  a  cuff  on  the  ear,  though  it  cost  him 
nothing,  no  not  so  much  as  a  little  diachylon,  yet  he  shall  have  an 
action;  for  it  is  a  personal  injury.  So  a  man  shall  have  an  action 
against  another  for  driving  over  his  ground,  though  it  do  him  no 


JlO  ACTIONS 

daniaj^c;  for  it  is  an  invasion  of  his  ]>ro]iciiy,  and  the  other  has  no 
rit^lit  to  come  there. "- 

It  is  also  entirely  immaterial  by  means  of  what  instrumentality 
the  trespass  is  committed.  See  4O  Cent.  Dig.  "Tresi)ass/'  §  8,  col. 
256.  One  maliciously  annoying  another  by  means  even  of  loud 
noises,  consisting  of  pounding  on  tin  pans,  etc.,  and  thereby  injur- 
ing the  health  and  business  of  the  latter,  is  guilty  of  trespass  and  lia- 
ble for  the  injuries  sustained.  ShcUaharger  v.  Morris,  115  Mo.  App. 
566,  91  S.  W.  1005.  To  the  same  effect,  see  Donahue  v.  Keystone, 
181  N.  Y.  313,  317,  73  N.  E.  1 108  (holding  specifically  that  escape 
of  gas  from  street  mains  may  constitute  a  trespass),  and  Adams 
V.  Rivers,  11  Barb.  390.  "No  doubt,"  said  Landon,  J.,  in  For- 
bell  V.  City,  164  N.  Y.  522,  526,  58  N.  E.  644,  646,  51  L.  R.  A. 
695,  79  Am.  St.  666,  "trespass  may  be  committed  by  the  pro- 
jection of  force  beyond  the  boundary  of  the  lot  where  the  pro- 
jecting instrument  is  operated.  Injuries  caused  by  explosion  are 
familiar  instances."^ 

More  specifically,  in  the  celebrated  case  of  Pickering  v.  Rudd, 
I  Starkie  56,  i  Ames'  Cases  on  Torts,  42,  Lord  Ellenborough  said : 
"I  recollect  a  case  where  I  held  that  firing  a  gun  loaded  with  shot 
into  a  field  was  a  breaking  of  the  close.  The  learned  judge  on  the 
circuit  with  me  doubted  upon  the  point,  but  many  with  whom  I 
afterwards  conversed  on  the  subject  thought  I  was  right,  and  the 
judge  himself  who  at  first  differed  with  me  was  afterwards  of  the 
same  opinion;  but  I  never  yet  heard  that  firing  in  vacuo  could  be 
considered  as  a  trespass.  No  doubt,  if  you  could  prove  any  incon- 
venience to  have  been  sustained,  an  action  might  be  maintained; 
but  it  may  be  questionable  whether  an  action  on  the  case  would  not 
be  the  proper  form."  To  the  same  effect,  see  Prezvitt  v.  Clayton,  5 
T.  B.  Mon.  4.  If  a  hunter  shoot  where  he  has  a  right  to  kill  a  bird 
in  the  air,  and  step  upon  the  land  of  another  to  pick  up  the  dead 
bird,  the  act  of  going  onto  the  land  to  pick  up  the  bird  relates  to  the 
act  of  shooting,  and  the  whole  act  one  transaction,  constituting  a 
trespass  at  common  law  apart  from  the  statute.  Earl,  C.  J.,  in 
Osbond  V.  Meadows,  12  C.  B.  (N.  S.)  10,  15.  And  see  Mayhew  v- 
Wardley,  14  C.  B.  (N.  S.)  550;  State  v.  Shannon,  36  Ohio  St. 
423,  38  Am.  Rep.  599. 

It  is  true  that  in  some  of  the  cases  referred  to,  and  in  L.  Realty 
Co.  V.  Johnson,  92  Minn.  363,  100  N.  W.  94,  66  L.  R.  A.  439,  104 
Am.  St.  677,  the  holding  that  trespass  or  some  other  enjoinable 
wrong  existed  was  based  upon  an  abuse  of  the  highway.    And  see 


-Accord:  Dixon  v.  Con<,  24  Wend.  (N.  Y.)  188  (1840)  ;  New  England 
T.  &  S.  C.  V.  Mather,  68  Vt.  378  (1895)  ;  Quillen  v.  Belts,  i  Penne.  (Del.)  53 
(1897)  ;  Fisher  v.  Maysmith,  106  Mich.  71  (1895)  ;  Hurley  v  Jnnrs  rfi:;  P^' 
34  (1894)  ;  Timamis  v.  Leonard,  121  Md.  583   (191377 

VMiisre  a  street  car  leaves  the  track  and  knocks  down  a  telephone  pole, 
standing  on  the  side  of  the  street,  against  a  person  on  his  own  premises,  a 
trespass  is  committed.  Louisville  R.  Co.  v.  .Sweeney,  157  Ky.  620  (1914). 
So,  where  animals  escape  and  trespass  on  the  land  of  an'other,  their  owner  is 
liable  in  trespass  q.  c.  f.  DglldLy.  Ferris,  7  W.  &  S.  (Pa.)  367  (1844)  ;  I'^an 
Leuven  v.  Lykc,  i  X.  Y.  5157184HJ! 


WHITTAKER  V.   STANGVICK  217 

Harrison  v.  Duke  (1893),  i  Q.  B.  Div.  142;  Hickman  v.  Maisey 
(1900),  I  Q.  B.  Div.  752;  Queen  v.  Pratt,  4  El.  &  Bl.  865. 

Such  cases  are,  however,  at  least  significant  illustrations  of  the 
extent  to  which  the  strictness  of  the  law  of  trespass  to  realt}^  greater 
than  in  cases  of  trespass  to  the  person,  has  been  carried,  i  Street 
on  Foundation  of  Liability  for  Tort,  24. 

Moreover,  here  the  defendants  proposed  to  inclose  and  make 
several  to  themselves  that  which  belonged  to  the  many.  Did  not 
the  blind  amount  to  "a  clandestine  encroachment  and  appropriation 
of  navigable  waters,  which  should  be  common  to  the  public?"  The 
precise  nature,  however,  of  defendants'  act,  whether  it  amounted  to 
a  purpresture  (23  A.  &  E.  Ency.  (2d  ed.)  528;  7  Words  &  Phrases, 
5867),  or  to  nuisance  (see  People  v.  Park,  76  Cal.  156,  18  Pac.  141), 
or  to  both  (see  People  v.  Vanderhilt,  26  N.  Y.  287;  People  v.  Gold 
Run,  66  Cal.  138,  4  Pac.  1152,  56  Am.  Rep.  80;  The  Idlewild,  64  Fed. 
603,  12  C.  C.  A.  328),  or  to  neither,  need  not  be  here  determined. 
The  defendants'  right  to  properly  use  the  navigable  lakes  did  not 
give  tliem  any  more  right  to  shoot  over  plaintiff's  land  than  a  neigh- 
boring proprietor  would  have  had  to  so  shoot  from  his  own  premises. 
Tt  has  been  definitely  determined  in  this  court  that  the  neighboring 
proprietor  may  not  lawfully  do  so.  Lamprey  v.  Danz,  86  Minn.  317, 
90  N.  W.  578. 

The  mere  fact  that  damage  from  falling  shot  or  birds  would  be 
insignificant,  as  has  been  shown,  has  no  logical  bearing  at  all  upon 
the  question.  The  record,  besides,  conclusively  shows  substantial 
damage  to  the  premises.  At  common  law,  trespass  or  case  would 
have  lain.*  The  inherent  danger  to  landowners  from  guns  in  the 
hands  of  hunters,  often  irresponsible  and  reckless,  and  sometimes 
malicious,  must  be  adequately  guarded  against  if  the  law  is  to  be 
more  than  a  name.  As  the  hazard  from  the  use  or  threatened  use  of 
dangerous  instrumentalities  increases,  in  all  branches  of  the  law, 
the  responsibility  of  the  person  employing  them  becomes  stricter 
and  may  amount  to  insurance  of  safety.  All  remedial  resources  of 
law  and  equity  may  be  exercised  to  prevent  such  peril  to  persons  or 
property,  or  conduct  likely  also  to  result  in  breach  of  peace. 

Order  reversed.^ 


^Liability  for  consequential  injuries  may  result  from  an  acf:  which  is 
itself "a"trespass.  in  .which  case  tTTe"miurecl  person  may  sue  in  trespass  or  may 
waive  the  trespass  and_  sac  in  case  ior  tlie  consequences.  Branscomh  v. 
Bridges,  i  B.  &  C7  145  (1823);  Smith  v.  Goodivin,  2  N.  &  M.  115  (1833); 
Knott  V.  Davis,  6  H.  &  J.  230  (1824)  ;  Dalton  v.  Favour,  3  N.  H.  465  (1826)  ; 
Scliner  v.  Feeder,  7  Blackf.  (Ind.)  342  (1845)  ;  Claflin  v.  Wilcox,  18  Vt.  60S 
(1846)  ;  Jordan  v.  Wyatt,  4  Gratt.  (Va.)  151  (1847)  ;  Bixhy  v.  Harris,  26  N.  H. 
125  (1852);  Van  Dresor  y.  King,  34  Pa.  201  (1859);  Wyant  v.  Crouse,  127 
Alich.  158  ( ifJSr^T-^t  commonlaw  a  count  in  trespass  can  not  be  joined  with 
a  count  in  case  in  the  same  declaration.  Cooper  v.  Bissell,  16  Johns.  146 
(i8iq)  ;  Smith  v.  Rhode  Island  Co.,  26  R.  I.  24  (1904),  but  counts  in  trespass 
and  case  may  be  joined  where  they  relate  to  the  same  subject  matter  under 
some  codes.  Louisville  &  N.  R.  Co.  v.  Higginbotham,  153  Ala.  334  (1907). 
Compare:  Gulf  Yellow  Pine  L.  Co.  v.  Monk,  153  Ala.  358  (1907). 

°  The  principal  classes  of  trespass  are  : 

Trespass  to  the  person,  as  an  assault  and  battery,  false  imprisonment, 


jlS  AlTlOXS 

Li:.\MI':  :•.  HRAV.  , 

Court  ov  Kixt/s  Bkxcii,  1803. 

3  East  593- 

This  was  an  action  of  trespass,  in  which  tlic  phiintiff  declared 
that  the  defendant  with  force  and  arms  drove  and  struck  a  single- 
horse  chaTse  which  the  defendant  \yas  then  driving  along  the  king's 
TiTghwav  with  such  great  force  and  violence  upon  and  against  the 
jilaintiff's  curricle  drawn  by  two  horses,  and  upon  and  against  the 
said  horses  so  drawing,  etc.,  and  in  which  said  curricle  the  plaintiff  I 
was  then  and  there  riding  with  his  servant,  which  servant  was  then! 
driving  the  said  curricle  and  horses  along  the  king's  highway  afore- ' 
said,  that  bv  means  thereof  the  plaintiff's  servant  w^as  throxyn  out 
of  the  curricle  upon  the  ground,  and  the  horses  ran  away  wath  the 
curricle,  and  while  the  horses  were  so  running  away  with  the  cur- 
ricle the  plaintiff,  for  the  preservation  of  his  life,  jumped  and  fell 
from  the  curricle  upon  the  ground  and  fractured  his  collar  bone, 
etc.    Plea,  not  guilty. 

It  appeared  in  evidence  at  the  trial  before  Lord  Ellenborough, 
C.  T-,  at  the  last  sittings  at  Westminster,  that  the  accident  described 
in  the  declaration  happened  in  a  dark  night,  owing  to  the  defendant 
driving  his  carriage  on  the  wrong  side  of  the  road,  and  the  parties^ 
not  being  able  to  see  each  other;  and  that  if  the  defendant  had  kepj 
his  right  side  there  was  ample  room  for  the  carriages  to  have  passecS 
without  injury.  But  it  did  not  appear  that  blame  was  imputable  tol 
the  defendant  in  anv  other  respect  as  to  the  manner  of  his  driving. 
Tt  was  therefore  objected  for  the  defendant,  that  the  injury  having>' 
hapi^ened  from  negligence,  and  not  wilfully,  the  proper  remedy  was 
by  an  action  on  the  case  and  not  of  trespass  vi  et  armis:  and  the 
plaintiff  was  thereupon  nonsuited.*' 

Lord  Ellf.n borough,  C.  J.:  The  true  criterion  seems  to  be 
according  to  what  Lord  C.  j.  \'}eGr (iY~§2YS-iTCScoTrV7Shepl^erd,  2 
Wm.Blackstone's  Rep.  892,  \xIi£ib£r,lb.CL,piai]itiLff  rf  reived  an  injury 
byjorce  from  the  defendant.    If  the  injur^ous^act  be  the  immediate 

etc.  Jhtrst  v.  Carlisle,  .^  P.  &  W.  (Pa.)   176  (1831)  ;  Petit  v.  Colmery,  4  Penn. 

(0610266  (I903).  ,       .   .  .     •  f         ■   .     r 

Trc^oass  dc  bonis  asportatis,  the  unlawful  appropriation  of  or  interter- 
ence  with  personal  propertv.  Phillips  v.  Hall,  8  Wend.  (N.  Y.)  610  (1832)  ; 
Crazcford  v.  ]Vatcrson.  5  Fla.  472  (1854);  Briswan  v.  Milters.  26  Ea^^A^j? 
(1856).  The  action  is  frequently  concurrent  ^vith  trover.  Stanley  V.  Gaylord, 
I  Cush.  (Mass.)  536  (1848)  ;  see,  also,  Dame  v.  Dame,  43  N.  H.  37(1861). 

Trespass  qtiare  clansiun  f regit,  an  unlawful  entry  upon  or  an  immediate 
inj'irv  to  real  propertv  in  the  possession  of  the  plaintiff.  Gregory  v.  Pipe, 
9  B.  &  C.  591  (1829)  ;  'Ritcker  v.  McNcely,  4  Blackf.  (Ind.)  179  (1836)  ;  Stnr- 
gis  V.  Warren,  li  Vt.  4^3  (1839)  ;  Maxzi'ell  v.  Maxwell,  31  ^faine  184  (1850) 
Collins  Y._££aJis^  148  Pa.  65  (1892);  Kent  C.  A.  Society  v.  Ide,  128  Mich 
'~433~~(T90i )  ;  Moore  v.  Dnhc,  84  Vt.  401  (1911);  Collier  v.  Ulster  &  Del 
R.  Co.,  72  Misc.  (N.  Y.)  274  (191O  ;  Beasley  v.  Byrum,  163  N.  Car.  3  (1913) 
It  applies  to  an  interest  in  land  only.  Burleigh  v.  Pord,  59  N.  H.  536  (1880)  ; 
Stocks  V.  Booth,  I  T.  R.  428  (1786). 

'The  arguments  of  counsel  are  omitted. 


LEAISIE  V.  BRAY  219 

result  of  the  force  originally  applied  by  the  defendant,  and  the 
planititf  he  m-mrea  nv  it.  it  is  the  suBject  of  an  action  of  trespass 
vi  et  arnus  by  all  the  cases  both  ancient  and  modern.  It  is  immate- 
naT  vvTiether  the  injury  be  wilful  or  not.  As  in  the  case  alluded  to 
by  my  brother  Grose,  where  one  shooting  at  butts  for  a  trial  of 
skill  with  the  bow  and  arrow,  the  weapon  then  in  use,  in  itself  a 
lawful  act,  and  no  unlawful  purpose  in  view;  yet  having  accident- 
ally wounded  a  man,  it  was  holden  to  be  a  trespass,  being  an  imme- 
diate injury  from  an  act  of  force  by  another.  Such  also  was  the 
case  of  Weaver  v.  Wood,  in  Hob.  134,  where  a  like  unfortunate 
accident  happened  Vv'hilst  persons  were  lawfully  exercising  them- 
selves in  arms.  So  in  none  of  the  cases  mentioned  in  Scott  v.  Shep- 
herd did  wilfulness  make  any  difference.  If  the  injury  were  re- 
ceived from  the  personal  act  of  another,  it  was  deemed  sufficient  to 
make  it  trespass.  In  the  case  of  Day  v.  Edzvards,  5  Term  Rep. 
648,  the  allegation  of  the  act  having  been  done  furiously  was  under- 
stood to  imply  an  act  of  force  immediately  proceeding  from  the 
defendant.  As  to  the  case  of  Ogle  v.  Barnes,  8  Term  Rep.  188,  I 
incline  to  think  it  was  rightly  decided;  and  yet  there  are  words  there 
which  imply  force  by  the  act  of  anotlier;  but,  as  was  observed,  it 
does  not  appear  that  it  must  have  been  the  personal  act  of  the  de- 
fendants; it  is  not  even  alleged  that  they  were  on  board  the  ship 
at  the  time ;  it  is  said  indeed  that  they  had  the  care,  direction,  and 
management  of  it;  but  that  might  be  through  the  medium  of  other 
persons  in  their  employ  on  board.  That  therefore  might  be  sus- 
tained as  an  action  on  the  case,  because  there  were  no  words  in  the 
declaration  which  necessarily  implied  that  the  damage  happened 
from  an  act  of  force  done  by  the  defendants  themselves.  I  am  not 
aware  of  any  case  of  that  sort  where  the  party  himself  sued  having 
been  on  board  this  question  has  been  raised.  But  here  the  defendant 
himself  was  present,  and  used  the  ordinary  means  of  impelling  the 
horse  forward,  and  from  that  the  injury  happened.  And  therefore] 
there  being  an  immediate  injury  from  an  immediate  act  of  force  by 
the  defendant,  the  proper  remedy  is  trespass;  and  wilfulness  is  noil 
necessary  to  constitute  trespass.  ' 

Grose,  J. :  I  am  of  the  same  opinion.  Looking  into  all  the  cases 
from  the  year  book  in  the  21  H.  7  down  to  the  latest  decision  on  the 
subject,  I  find  the  principle  to  be,  that  if  the  injury  be  done  by  the 
act  of  the  party  himself  at  the  time,  or  he  be  the  immediate  cause  of 
it,  though  it  happen  accidentally  or  by  misfortune,  yet  he  is  answer- 
able in  trespass.  The  case  mentioned  from  Strange,  that  in  Hobart, 
and  those  in  the  Term  Rej)orts,  all  agree  in  the  principle. 

Lawrence,  J. :  I  am  of  the  same  opinion.  It  is  more  convenient 
that  the  action  should  be  trespass,  than  case ;  because  if  it  be  laid  in 
trespass,  no  nice  points  can  arise  upon  the  evidence  by  which  the 
plaintiff  may  be  turned  round  upon  the  form  of  the  action,  as  there, 
may  in  many  instances  if  case  be  brought;  for  there  if  any  of  the 
witnesses  should  say  that  in  his  belief  the  defendant  did  the  injury 
Avil  fully,  the  plaintiff  will  run  the  risk  of  being  nonsuited.  But  in  ac-^ 
tions  of  trespass  the  distinction  has  not  turned  either  on  the  lawful- 
ness of  the  act  from  whence  the  injury  happened,  or  the  design  of 


J  JO  ACTIONS 

the  ivnrlv  doins^  it  to  commit  the  injury;  but,  as  mentioned  by  Mr. 
Justice  Rlackstone  in  the  case  of  Scolt  v.  S/tcphcrd,  2  Blac.  Rep. 
895,  on  the  difference  between  injuries  direct  and  biuncdiate,  or 
mediate  and  conseijucntial ;  in  the  one_ instance  the  remedy  is  by  tres- 
pass, in  tlic  other  by  case.  The  same  principle  is  laid  down  in  IRey- 
nolds  V.  Clarke,  2  Ld.  Raym.  1402.  As  to  Ogle  v.  Barnes,  I  certainly 
did  not  mean  to  say  that  the  distinction  turned  on  the  wilfulness  of 
the  act ;  1  only  made  use  of  the  word  zviifiil  to  distinguish  that  from 
other  cases  which  had  been  mentioned  where  the  injurious  acts  were 
averred  to  be  ivilfully  done,  and  where  as  the  acts  com])lained  of 
were  charged  as  intentional,  and  the  injuries  done  immediately  re- 
ferred to  them,  trespass  was  determined  to  be  the  proper  remedy. 
And  so  I  understand  what  was  tliere  said  by  my  brother  Grose. 
\\'hat  I  principally  relied  on  there  was,  that  it  did  not  appear  that 
the  mischief  happened  from  the  personal  acts  of  the  defendants; 
it  might  have  happened  from  the  operation  of  the  wind  and  tide 
counteracting  their  personal  efforts  at  the  time ;  or  indeed  they  might 
not  even  have  been  on  board.  Alleging  that  the  defendant  negli- 
gently did  such  an  act  may  be  sustained  by  proof  that  it  was  done 
by  his  servant  in  his  employ  in  the  absence  of  the  master,  according 
to  Michael  v.  Alestree,  2  Lev.  172,  followed  up  by  Brucker  v.  Fro- 
mont,  6  Term  Rep.  659.  Those  were  actions  on  the  case,  and  are 
reconcilable  with  M'Manus  v.  Crickett,  i  East.  106,  in  which  case 
the  court  held  that  trespass  would  not  lie  against  a  master  for  the 
wilful  act  of  his  servant  in  driving  his  master's  carriage  against 
another's  carriage,  against  the  will  of  his  master. 

Le  Blanc,  J.:  In  many  of  the  cases  the  question  has  come  be- 
fore the  court  upon  a  motion  in  arrest  of  judgment,  where  the 
court  in  determining  whether  trespass  or  case  were  the  proper  rem- 
,edy,  have  observed  on  the  particular  language  of  the  declaration. 
'But  in  all  the  books  the  invariable  principle  to  be  collected  is,  that 
where  the  injury  is  immediate  on  the  act  done,  there  trespass  lies; 
but  where  it  is  not  immediate  on  the  act  done,  but  consequential, 
there  the  remedy  is  in  case.  And  thejlistinctionjj^well  instanced  by 
the  example  put  of  a  man's" tlirowing  a  log  into  the  highway:  if  at 
the  time  of  its  being  thrown  it  liit  any  jK'i.son,  it  i  s  trespass ;  btiLJi 
aftexj.t  beJlHiQwivaiiy  person  going  along  the  road  receive  an  iajury 
'By  falling  over  it  as  it  lies  there_,  it  is  case.J  Neither  does  the  degree 
of  violence  with  which  the  act  is  done  make  any  difference;  for  if 
the  log  were  put  down  in  the  most  quiet  way  upon  a  man's  foot,  it 
would  be  trespass;  but  if  thrown  into  the  road  with  whatever  vio- 
lence, and  one  afterwards  fall  over  it,  it  is  case  and  not  trespass. 
So  here,  if  the  defendant  had  simply  placed  his  chaise  in  the  road, 
and  the  plaintiff  had  run  against  it  in  the  dark,  the  injury  would 
not  have  been  direct,  but  in  consequence  only  of  the  defendant's  pre- 
vious improper  act.  Here,  however,  the  defendant  was  driving  the 
carriage  at  the  time  with  the  force  necessary  to  move  it  along,  and 
the  injury  to  the  jtlaintiff  happened  from  that  immediate  act;  there- 


'  This  illustration  is  given  by  Fortescue,  J.,  in  Reynolds  v.  Clarke,  i  Str. 
634   0725)- 


ADAMS  V.   HEMMENWAY  221 

fore  the  remedy  must  be  trespass ;  and  all  the  cases  will  support  that 
principle.  It  is  chiefly  in  actions  for  running  down  vessels  at  sea 
that  difficulties  may  occur ;  because  certainly  the  force  which  occa- 
sions the  injury  is  not  so  immediate  from  the  act  of  the  person 
steering.  The  immediate  agents  of  the  force  are  the  wind  and  waves, 
and  the  personal  act  of  the  party  rather  consists  in  putting  the  ves- 
sel in  the  way  to  be  so  acted  upon ;  and  whether  that  may  make  any 
difference  in  that  case  I  will  not  now  take  upon  me  to  determine. 
But  here,  where  the  personal  force  is  immediately  applied  to  the 
horse  and  carriage,  the  things  acted  upon  and  causing  the  damage, 
like  a  finger  to  the  trigger  of  a  gun,  the  injury  is  immediate  from 
the  act  of  driving,  and  trespass  is  the  proper  remedy  for  an  immedi- 
ate injury  done  by  one  to  another;  but  where  the  injury  is  only 
consequential  from  the  act  done,  there  it  is  a  case. 

Rule  to  set  aside  nonsuit  made  absolute.^  .  jt'^.^v"*— 


/y^f^z^-L^^^    "^x^C"^—^ 


/ 


ADAMS  V  HEMMENWAY.  -'^• 
Supreme  Judicial  Court  of  Massachusetts,  1804. 


I  Mass.  145. 

In  this  case,  "the  defendant  was  attached  to  answer  to  the  plain- 
tiff in  a  plea  of  trespass,  for  the  plaintiffs,  at  K.,  on  the  —  day  of  — , 
being  owners  and  proprietors  of  a  certain  schooner  called  the 
Charles,  of  the  burden  of ,  then  and  there,  on  the  said  day,  de- 
spatched the  said  vessel,  duly  fitted  and  equipped,  under  the  com- 
mand of  one  Charles  Adams,  master  of  said  vessel,  on  a  voyage  for 
P.,  in  order  to  bring  back  a  cargo  of  lumber  from  said  P.,  and  while 
said  vessel  was  so  proceeding  on  her  voyage  aforesaid,  on  the  — 
day  of  —  aforesaid,  about  three  leagues  from  tlie  land,  to  wit,  at 
Plymouth  aforesaid,  the  defendant  being  then  and  there  sailing  in  a 
certain  boat  or  vessel,  the  name  of  which  is  to  the  plaintiffs  tm- 
known,  then  and  there,  with  force  and  arms,  made  an  assault  on 

^Accord:  Gates  v.  Miles,  3  Conn.  64  (1819);  Perexval  v.  Hickey,  18 
Johns.  (N.  Y.)  256  (1820);  Rappclyea  v.  Halsc,  12  N.  J.  L.  257  (1831)  ; 
Painter  v.  Baker,  16  111.  103  (1854).  Compare  Williams  v.  Holland,  10  Bing. 
112  (1833).  Trespass  will  lie  for  beating  a  drum  in  the  highway  where  a 
wagon  and  team  are  passing,  causing  the  horses  to  take  fright  and  run  away. 
Loithz  V.  Hafner,  i  Dev.  (N.  Car.)  185  (1827).  See,  also,  Cole  v.  Fisher,  il 
Mass.  137  (1814)  ;  Gnille  v.  Sivan,  19  Johns.  (N.  Y.)  381  (1822)  ;  Johnson  v. 
Perry,  2  Humph.  (Tenn.)  569  (1842)  ;  Brennan  v.  Carpenter,  i  R.  I.  474 
(1849)  ;  Maher  v.  Ashmead,  30  Pa.  344  (1858)  ;  Richer  v.  Freeman,  50  N.  H. 
420  (187077 

While  statutes  have  in  many  states  abolished  the  procedural  distinction 
between  trespass  and  case,  it  is  generally  held  that  the  substantive  rights  and 
liabilities  of  the  parties  are  not  thereby  afifected.  Blalock  v.  Randall,  76  111. 
224  (1875)  ;  Chicago  T.  &  T.  Co.  v.  Core,  223  111.  58  (1906)  ;  Cannon  v.  Hor- 
sey, I  Houst.  (Del.)  440  (1857);  Pruitt  v.  FJlington,  59  Ala.  455  (1877); 
Rogers  v.  Duhart,  97  Cal.  500  (1893)  ;  Lawry  v.  Lawry,  88  Maine  482  (1896)  ; 
Eujrhj^  Qq.Uinun^A^  Pa.  Super.  Ct.  578  (1900)  ;  Suicr  v.  Wenatchee  IV.  F. 
Co..  35  Wash.  I  (1904).   Compare  Coe  v.  English,  6  Houst.  (Del.)  456  (1881). 


ACTIONS 


the  aforesaid  vessel  called  the  Charles,  owned  by  the  plaintiffs  as 
afi>resaid,  and  iired  and  discharj^ed  at  the  said  vessel,  and  master 
and  crew  therein,  a  musket  or  lire-arm  loaded  with  gunpowder  and 
lead,  and  with  the  same  grievously  and  danj^erously  wounded  the 
said  Charles  Adams,  master  of  the  plaintiff's'  vessel,  so  that,  for  the 
jireservation  of  the  life  of  said  Charles  Adams,  the  crew  on  board 
the  plaintiff's'  vessel  were  com])elled  to  return  therein  to  K.  afore- 
said, and  the  jilaintiffs'  intended  voyage  aforesaid  has  been  broken 
up  and  defeated,  and  the  plaintiff's  have  thereby  lost  all  the  freight- 
monev  which  they  might  have  earned  and  gained  in  the  intended 
Aovage  aforesaid,  together  with  the  passage-money  for  sundry  pas- 
sengers, who  had  then  and  there  taken  and  engaged  a  passage  to  P. 
in  said  vessel ;  and  other  outrages  the  defendant  then  and  there  com- 
mitted on  the  plaintiff's  vessel,  against  the  peace,  etc." 

Upon  hearing  the  declaration  read,  the  whole  court  (Strong, 
Sedgwick,  Sewall  and  Thacher,  justices)  said  it  would  be  in  vain 
to  go  on  with  the  action ;  that  the  action  should  have  been  case,  and 
not  trespass;  and  that  even  if  a  verdict  should  be  found  for  the 
plaintiff's,  the  court  must  arrest  the  judgment. 

The  plaintiff's  discontinued  upon  payment  of  costs. 

Attorney-General  (Sullivan)  and  Thomas  for  the  plaintiffs. 

Parsons  and  B.  Whitman  for  the  defendants.^ 

Note. — In  an  action  of  assault  and  battery,  brought  by  the  mas- 
ter, Charles  Adams,  against  the  defendant,  (for  the  injury  done 
him  by  the  discharge  of  the  musket,)  which  was  tried  at  this  term, 
the  jury  found  a  verdict  f(M-  the  master — $3,391  damages. 


'■%ogaii  V  rcasor,  i,  Yeates  (Pa.)  586  (i795)  ;  Stump  v.  Kelly,  2.2  111.  140 
{\%--,Q)TOm7yaf\\  Cummins,  6  Serg.  &  R.  (Pa.)  343  (1821)  ;  J^ath  v.  Caton, 
2,1  Mich.  IQQ  (1877)  :  Me\cr  v.  tiorst.  106  Pa.  552  (1884)  ;  Vogcl  v.  McAuliffe, 
18  R.  I.  791  (1895)  ;  Welch  V.  Seattle  &  M.  R.  Co.,  56  Wash.  97  (1909).  For 
injuries  bv  servants  in  the  course  of  their  employment,  case  is  the  proper  rem- 
edy. Sharrod  v.  London  &  N.  W.  R.  Co.,  4  Exch.  580  (1849);  Barnes  v. 
H'urd,  II  Mass.  57  (1814)  ;  PhUa.  G.  &  N.  R.  Co.  v.  fFtiL-^  Whart.  (Pa.)  142 
(1838)  ;  Havens  v.  HartforJ~&  N.  H.  R.  Co.,  28  Conn.  69  (1859)  ;  Mosscssiau 
v.  Callcndcr,  24  R.  I.  168  (1902). 

Action  o-v  the  Case. 

"In  1537,  some  two  hundred  and  fifty  years  after  the  introduction  of  this 
writ,  Sir  Anthony  Fitzherbert,  in  his  treatise  de  Natura  Brev'mm,  the  earliest 
authoritative  abridgement  of  the  common  law-  gives  a  list  of  the  then  known 
actions  on  the  case.  There  is  no  attempt  at  classification,  but  on  analysis 
tl-ey  will  be  found  to  fall  into  certain  definite  classes. 

1.  Cases  illustrating  what  may  he  termed  the  primary  use  of  the  writ — 
the  normal  extension  of  the  principles  underlying  the  formed  writs  of  tres- 
pass to  conditions  closely  analogous  to  those  for  which  remedy  was  given 
by  such  writs,  but  where  one  or  another  of  the  precise  technical  requirements 
for  the  operation  of  such  writs  being  lacking  no  redress  was  possible  under 
them:  (a)  either  because  the  harm  resulted  indirectly  and  not  directly  as  re- 
r-uircd  in  trespass  vi  et  armis,  or  (b)  the  property  which  w^as  destroyed  had 
been  given  to  the  defendant  and  not  taken  from  the  possession  of  the  plain- 
tiff as  required  in  trespass  de  bonis  asportatis,  or  (c)  the  property  invaded 
was  not  within  the  protection  of  the  writ  of  trespass  quare  clausmn  fregit; 
being  a  term  of  years  or  a  franchise. 

2.  The  second  class  of  case  deals  witli  the  secondary  use  of  the  writ,  the 
use  of  it  not  to  extend  trespass,  but  to  enforce  duties  and  obligations  having 


GREGOIR  V.  LEONARD  223 

GREGOIR  V.  LEONARD. 

Supreme  Court  of  Vermont,  1899. 

71  Vt.  410. 

Case  :  Heard  on  general  demurrer  to  the  declaration,  at  the  De- 
cember term,  1898,  Addison  county,  Ross,  C.  J.,  presiding.  De- 
murrer overruled  and  declaration  adjudged  sufficient.  The  defend- 
ant excepted. 

Watson,  J. :    The  only  contention  made  by  the  defendant  upon , 
his  general  demurrer  to  the  declaration  is  that  if  the  plaintiff  has 
any  right  of  action  in  the  premises,  it  is  in  trespass  and  not  in  an 
action  on  the  case.  \ 

The  allegations  in  the  declaration  show  a  right  in  the  defendant, 
his  servants,  and  agents,  to  pass  and  repass  to  and  from  the  lands 
owned  and  occupied  by  the  defendant,  over  and  described  premises 

no  kinship  to  trespass  or  at  best  only  a  remote  analogy.   These  again  fall  into 
two  distinct  groups. 

A.  Those  which  deal  with  certain  positive  duties,  obligations  to  act 
affirmatively  Where  the  only  injury  sustained  is  the  loss  of  the  benefit  which 
would  have  been  derived  from  the  proper  performance  of  the  duty;  where 
the  only  right  invaded  is  the  right  to  the  beneficial  fulfillment  of  the  obliga- 
tion. These  cases  stand  at  the  ver\'  opposite  pole  from  those  just  discussed  in 
which  there  is  a  mere  extension  of  the  field  of  punishable  misconduct.  There 
is  here  no  element  of  personal  guilt.  While  the  word  'ncgligentia'  is  used,  it 
does  not  signify  negligence  in  the  modern  sense  of  the  personal  breach  of 
social  duty.  It  is  the  mere  failure,  from  whatsoever  cause,  to  fulfill  an  obli- 
gation only  satisfied  by  performance  that  is  the  basis  of  recover}-.  Of  these 
Fitzherbert  gives  several  instances ;  one  group,  and  that  the  earliest,  are 
those  attached  by  custom  as  an  incident  to  the  tenure  of  a  particular  estate 
or  the  incumbency  of  an  office.  A  second  group  are  those  which  in  the  mod- 
ern classification  of  the  common  law  are  segregated  into  a  distinct  class,  and 
treated  as  the  very  antitheses  of  tort  liabilities.  These  are  modern  con- 
tractual obligations;  duties  having  as  their  basis  the  consent  of  those  who 
assume  them.  As  instances  of  these  are  given  cases  of  warranties  and  the 
case  of  one  who  having  promised  to  build  certain  wagons  and  having  been 
paid  the  price  fails  to  do  so;  the  damage  laid  being  the  loss  of  their  profit- 
able use.  To  Fitzherbert  these  appear  to  differ  in  nothing  substantial  from 
similar  positive  obligations  annexed  by  custom  to  the  tenure  of  real  estate. 
F.videnty  the  time  has  not  yet  come  when  the  fact  that  such  obligations  rest 
not  on  custom  or  some  general  policy  of  law,  but  upon  the  expressed  consent 
of  the  individual,  serves  to  mark  them  as  radically  different  from  all  other 
positive  obligations. 

B.  A  class  of  case  is  given  lying,  it  may  be  said,  midway  between  the 
new  broadc-  conception  of  trespass  and  positive  obligations.  These  contain 
the  germ  and  root  from  which  has  developed  modern  social  duty  to  act,  if 
one  acts  at  all,  with  due  regard  for  the  safety  of  others,  and  in  relations  con- 
sciously assum.ed  to  take  precautions  to  provide  for  the  safety  of  those  with 
whom  one  is  thereby  associated.  In  Fitzherbert  this  idea  exhibits  itself  in  a 
duty  of  proper  performance  recognized  as  attaching  to  the  exercise  of  certain 
trades  and  calling;  many  of  them  the  prototypes  of  modern  public  or  quasi 
public-service  trades.  These  duties  are  of  varying  degrees  of  stringency.  In 
the  case  of  innkeepers  the  obligation  approaches  the  absolute  duty  of  afford- 
ing full  protection  to  the  guest  and  his  property.  In  other  cases,  as  that  of 
carpenters  or  farriers,  the  duty  is  rather  that  of  care  in  conduct  of  the  busi- 
ness to  secure  the  safety  of  its  patrons."  Moral  Duty  to  Aid  Others  as  a  | 
Basis  of  Tort  Liability,  by  Francis  H.  Bohlen,  56  Univ.  of  Pa.  Law  Review,  I 
223  (April,  1908).  I 


22.\  ACTIONS 

of  the  plaintilT.  in  and  over  the  way  in  question,  upon  the  condition 
tliat  in  so  passinsj;  over  the  ]>laintiff's  jircmises  they  should  keep  the 
gates,  bars,  and  fences,  which  they  shall  pass  or  rejxass,  closed  and 
put  up  in  as  i;"ood  condition  as  they  found  them  at  the  time  of  such 
passing. 

The  plaintilT  alleges  in  substance,  that  at  the  time  in  question,  he 
had  constructed  and  maintained  good  and  suflicient  bars  across  the 
discontinued  road  near  the  southerly  boundary  of  his  farm,  and  also 
about  thirty  rods  south  of  the  north  end  of  the  discontinued  road 
on  his  farm,  and  that  the  bars  were  then  in  good  repair;  that  it  was 
the  duty  of  the  defendant,  his  servants,  and  agents,  upon  passing 
along  the  road,  in  accordance  with  the  conditions  of  the  right  of 
way,  "to  carefully  lower  said  bars,  without  injury  to  them,  and  to 
place  them  up,  after  passing  through ;"  that  to  obstruct  the  plaintiff 
in  the  use  and  enjoyment  of  his  farm,  on  the  days  in  question,  the 
defendant,  with  his  servants  and  agents,  passed  over  the  discon- 
tinued road,  along  the  right  of  way,  and  through  the  bars,  and  threw 
them  down  in  a  careless  and  w^rongful  manner,  and  broke  and  ruined 
them,  and,  with  his  servants  and  agents,  passed  through  and  left 
the  bars  down  and  did  not  put  them  up,  or  place  any  barrier  to  pre- 
\ent  horses  and  cattle  and  other  stock  from  going  through  the  bars 
and  upon  the  land  of  the  ])laintifif;  and  that  cattle  and  horses  did 
escape  through  them  and  upon  his  farm,  trod  down  grass  and  grain 
growing  thereon,  etc.,  by  means  whereof,  the  plaintiff  was  damaged 
in  the  use  and  enjoyment  of  his  farm,  etc. 

The  plaintiff  was  the  servient  and  the  defendant  the  dominant 
owner  of  the  land  covered  by  the  right  of  way,  with  a  right  in  tlie 
defendant  to  enter  upon  and  pass  over  the  plaintiff's  premises  in 
and  over  the  right  of  way,  and,  in  so  doing,  the  defendant  had  a 
right  to  take  down  the  bars  across  the  way  to  enable  him  to  pass 
through. 

The  defendant,  having  the  right  to  enter  upon  and  pass  over  the 
plaintiff's  premises  in  the  legitimate  use  of  his  easement,  in  the  exer- 
cising of  that  right  within  its  limitations  he  was  not  guilty  of  break- 
ing and  entering,  and  whatsoever  was  done  thereafter  being  but 
aggravation  of  damages,  the  action  of  trespass  on  the  freehold  will 
not  lie.  Goodrich  v.  Judevine,  40  Vt.  190;  Grout  y.  Knapp,  40  Vt. 
163 ;  Howard  v.  Black,  42  Vt.  258.^^' 

The  throwing  down  of  the  bars  by  the  defendant,  his  servants, 
and  agents,  in  a  careless  and  wrongful  manner,  did  not  work  a  for- 
feiture of  the  defendant's  right  in  the  easement;  it  was  but  the  care- 
less and  negligent  exercise  of  a  lawful  right,  for  which  trespass  will 
not  lie.   Sahin  v.  Vermont  Cent.  R.  Co.,  25  Vt.  363. 

The  bars  having  been  let  down  by  the  defendant,  to  pass  through, 
it  was  his  duty,  after  passing  through,  to  put  them  up,  but  his  fail- 

' "  See,  Six  Carpenters'  Case,  8  Coke  216  (1611),  and  annotations  to  that 
I  case  in  i  Smith's  Leadinp  Cases.  In  actions  for  seduction  it  has  been  held 
!  that  wliere  the  offense  was  accompanied  by  an  illegal  entry  of  the  plaintiff's 

house,  h?  miphl  brinR  trespass  or  case,  Bennett  v.  AUcott,  2  T.  R.  166  (1817). 

But  case  seems  tlie  more  appropriate  remedy.  jKcQ>nji,^jitikj^  3  Serg.  &  R. 

(Pa.)  215  (1817)  ;  Moran  v.  Dawes,  4  Cow.  (N.  Y.)  412  (1825)  ;  Furman  v. 

Apple  gate,  23  X.  J.  L.  28  (1850). 


DAME  V.  DAME  225 

ure  so  to  do,  was  only  the  omission  of  an  act  which  he  ought  to 
have  performed— a  mere  nonfeasance — for  which  trespass  will  not 
lie.  Stone  v.  Knapp,  29  Vt.  501 ;  Stoughton  v.  Mott,  25  Vt.  668;  i 
Chit.  PI.  126." 

The  injuries  for  which  the  plaintiff  seeks  to  recover  damages, 
were  committed  by  cattle  and  horses,  which  escaped  through  the 
bars,  left  down  by  the  defendant,  upon  the  plaintiff's  farm,  treading 
down  grass,  grain,  etc.,  there  growing.  Such  injuries  were  not  done 
by  the  act  of  throwing  down  the  bars  in  a  careless  and  wrongful 
manner,  and  therefore  immediate,  but  arose  after  that  act  was  com- 
pleted, and  were  more  particularly  occasioned  by  the  failure  of  the 
defendant  to  put  up  the  bars,  after  passing  through,  and  were  the 
collateral  consequences  thereof.  ,;; 

For  the  careless  and  negligent  exercise  of  a  Jawful.right.,an.d  for 
the  omTsiTon  of  an  act  whTcli  Tt  Is  tlie  duty  of  a  party  to  perform, 
resuTtmg  in  a  cullaRral  injur}-  to  another,  whose  relations  there.^o 
are  sucirthat  he  ma}'  insist  upon  the  proper  exercise  of  such  lawful 
right,  and  tipon  tKe  iienOriiiance  of  the  act  omitted,  but  which  ought 
to  have  been  performed,  the  part^  so  injured  may  rcco\er  his  conse- 
quential  damages  in  an  action  on  the  ease.  That  is  the  proper 
remedy,  i  Chit.  Fl.  133;  Sabin  \.  I'cnunnt  Central  Railroad  Co., 
25  Vt.  363.  No  question  having  been  raised,  in  argument,  as  to  the^ 
sufficiency  of  the  declaration  if  an  action  on  the  case  is  the  proper/ 
remedy,  we  express  no  opinion  thereon.  \_ 

Judgment  affirmed  and  cause  remanded. ^- 

(k)  Detinue!:,^^>^-'''*^*'^'^   ^^^^t^^^cC 

DAME  V.  DAMfe.^?t^;t>^  ^  /'^^C^^  ^^^^U 
I-'-'  Supreme  Court  of  New  Hampshire,  i86i.,n'*<-'^:^  /ot:i^i:^iCt^ 

43  ^.  H.  2,7.       ^2jf ^  ^^'•^^'r^^-t't5>!?^i.^ 

This  was  an  action  of  detinue,  brought  to  recover  a  house  and 
barn^''  alleged  to  be  the  property  of  the  plaintiff,  and  situated  on  the    * 


k\ 


"In  Ktsscckcr  v.  Monn,  36  Pa.  313,  78  Am.  Dec.  379  (i860),  trespass 
q.  c.  f.  was  susfained  against  one  who  having  a  license  to  enter  took  down  a 
gate  and  neglected  to  restore  it  to  its  place  whereby  his  swine  entered  and 
committed  the  injuries  complained  of. 

^- Shafcott  V.  iMitf/ford,  i  Ld.  Raym.  187  (1698);  Riddle  v.  Proprietors, 
&-C.,  10  Mass.  169  (1810)  ;  Maiill  v.  Wilson,  2  Harr.  (Del.)  443  (1838)  ;  Church 
of  Ascension  v.  Bnckliart,  3  Hill  (N.  Y.)  193  (1842)  ;  Linsley  v.  Bushnell,  15 
Conn.  225  (1842)  ;  Shrieve  v.  Stokes,  8  B.  Mon.  (Ky.)  453  (1848)  ;  Gate  v. 
Gate,  50  N.  H.  144  (1870)  ;  Garleton  v.  Gate,  56  N.  H.  130  (1875)  ;  Fallon  v. 
O'Brien,  12  R.  I.  518  (1880)  ;  Petey  M.  Go.  v.  Dryden,  5  Penn.  (Del.)  166 
(1904)  ;  Birkhead^v.  ^roo(/,  35  Pa.  Super.  Ct.  235  (1908)  ;  Birminghmn  W.  Go. 
V.  Martini,  2  Ala.  App.  6^2  (1911)  ;  Bagaglio  v.  Paolino,  35  R.  I.  171, 
(1913)  ;  Nirdlinaer  v.  Amer.  D.  T.  Go.,  240  Pa.  571  (1913)  ;  Crosby  v.  Plum- 
per, III  Maine~355   (1913)- 

"  Detinue  lies  only  for  the  recovery  of  a  specific  chattel  and  not  for  real 

15 — Civ.  Proc. 


226  ACTU1NS 

land  i)f  the  ilofendant,  in  I'aiiuinj^ton,  in  said  county,  all  of  which 
is  fully  sot  forth  in  the  plaintiff's  declaration,  which  is  as  follows: 

"In  a  i)lea  of  detinue  for  that,  whereas  the  plaintiff  heretofore, 
to  wit,  on  the  lirst  day  of  July,  1856,  at  l^'arniiuf^non  aforesaid,  was 
lawfully  possessed  of  a  certain  house  and  a  certain  harn,  both  situ- 
ated on  the  land  of  the  said  Daniel  Dame,  being  the  house  built  by 
the  plaintiiY  in  the  year  1842,  said  house  being  about  thirty-six  feet 
long  and  about  twenty-six  feet  wide,  and  one  story  and  one  quarter 
high,  and  of  the  value  of  $300;  and  said  barn  being  about  twenty- 
four  feet  long  and  about  twenty  feet  wide,  and  of  the  value  of  $200, 
situated  between  the  house  of  Eleazer  Rand  and  the  house  now 
owned  by  Benjamin  Chesley,  on  the  left  hand  side  of  tlie  road  lead- 
ing from  the  Bay  road,  so  called,  to  the  Ten  Rod  road,  so  called,  as 
one  goes  toward  the  Ten  Rod  road,  as  of  his  own  house  and  barn, 
and  being  so  possessed,  the  said  plaintiff  afterward,  to  wit,  on 
the  third  day  of  July,  1856,  casually  lost  the  same  out  of  his 
possession,  which  thereafterward,  to  wit,  on  the  same  day,  came 
into  the  hands  and  possession  of  the  said  Daniel  Dame,  by  finding; 
and  the  plaintiff'  further  saith,  that  although  the  said  Daniel  Dame 
well  knew  that  the  said  house  and  barn  were  the  proper  house  and 
barn  of  the  ])laintiff,  and  although  requested  by  the  said  plaintiff, 
to  wnt,  at  said  I""armington,  on  the  nineteenth  day  of  May,  i860,  to 
deliver  the  same  to  the  plaintiff,  yet  the  said  Daniel  Dame  hath  not 
delivered  up  the  said  house  and  barn  to  the  plaintiff,  but  wholly 
refuses  so  to  do,  and  still  unlaw^fully  detains  the  same." 

To  this  declaration  the  defendant  filed  a  general  demurrer,  and 
the  plaintiff  joined  in  demurrer,  and  the  question  of  law  was 
reserved. 

Sargent,  J.:  The  only  question  here  raised  is  whether  in  this 
state  an  action  of  detinue  can  be  maintained.  It  is  claimed  by  the 
defendant  that  this  form  of  action  w^as  never  introduced  into  this 
state,  or  if  it  ever  has  been  used  or  authorized  here,  that  it  has  from 
recent  entire  disuse  become  obsolete  so  that  it  can  not  now  be  main- 
tained. 

This  action  was  early  held  to  be  an  appropriate  remedy  in  a  cer- 
tain class  of  cases.  It  would  seem  that  the  original  distinction  be- 
tween replevin  and  detinue  was  very  similar  to  that  between  trespass 
and  trover.  Trespass  de  bonis  asporatis  was  brought,  not  to  recover 
the  identical  thing  taken,  but  damages  for  the  illegal  taking  and  loss 
of  the  same,  when  such  taking  was  unjust  and  unlawful,  while  trover 
was  brought  for  the  unjust  detention  and  conversion  of  property 
where  the  original  taking  was  lawful  and  proper. 

So  replevin  was  originally  brought  to  recover  the  possessiQii_oi,a 
chatfelTn  specie  when  the  original  taking  was  wrongful,  and  detinue. 

property,  Coupledike  v.  Coupledike,  Cro.  Jac.  39  (1605),  or  for  fixtures  at- 
tached to  the  soil,  McFadden  v.  Crawford,  36  W.  Va.  671  (1892),  but  things 
severed  from  the  realty  and  converted  into  personalty  may  be  recovered  in 
this  form  of  action,  Cooper  v.  Watson,  JZ  Ala.  252  (1882)  ;  Adlcr  v.  Prcst- 
U'ood,  122  Ala.  367  (1898).  So  also  in  trover  and  conversion,  Quitman  Co.  V. 
Conixav,  63  Fla.  253;  (1912)  ;  Anderson  v.  Todesea,  214  Mass.  102  (1913)  > 
Melton  \.  fiillerton  R.  Co.,  157  App.  Div.  (N.  Y.)  525  (1913);  Strickland  v. 
Miller,  \2  Ga.  App.  671. 


DAME  v.  DAME  227 

tiLJXCOi:£jLiJie_axlkleJii.x/z^£i^-..u'iien-tlie. original  taking  was  lawful. 
3  Black.  Com.  144-152.  Hence  we  find  that  the  form  of  the  declara- 
tion in  trover  and  detinue  are  similar,  it  being  alleged  in  both  that 
the  property  came  to  the  hands  and  possession  of  the  defendant  by 
finding.  To  be  sure  Blackstone  says  that  replevin  can  be  maintained 
only  in  one  instance  of  unlawful  taking,  to  wit,  that  of  an  unlawful 
distress.  3  Black.  Com.  145.  However  this  may  have  been  in  early 
times,  when  personal  property  was  of  but  small  consequence,  and 
when  legal  remedies  were  mainly  if  not  solely  sought  to  acquire 
possession  of  real  estate,  or  to  enforce  some  right  connected  there- 
with, or  to  collect  the  rents  chargeable  thereon,  yet  in  modern  times 
it  is  held  that  the  law  is  otherwise,  and  numerous  authorities  of  the 
greatest  weight  lay  it  dov/n  that  this  action  lies  in  all  cases  of  illegal 
taking. 

Chitty  says,  by  replevin  the  ov/ner  of  goods  unjustly  taken  and 
detained  from  him,  may  recover  possession  thereof.  It  is  princi- 
pally used  in  cases  of  distress,  but  it  seems  that  it  may  be  brought 
in  any  case  where  the  owner  has  goods  taken  from  him  by  another. 
I  Chit.  PI.  162.  And  again,  "It  has  been  said  that  replevin  lies  only 
in  one  instance  of  an  unlawful  taking;  namely,  that  of  an  unlawful 
distress  of  cattle,  damage  feasant,  or  of  chattels  for  rent  in  arrears ; 
but  as  before  observed,  it  appears  that  this  action  is  not  thus  limited, 
and  if  goods  be  taken  illegally,  though  not  as  a  distress,  replevin 
may  be  supported."  i  Chit.  PI.  164,  and  authorities  cited.  2  Saund. 
PL  &  Ev.  760;  2  Wheat.  Selw.  N.  P.  1194.  Replevin  was  generally 
a  co-extensive  remedy  v/ith  trespass  de  bonis  asportatis.  Panghurn 
V.  Partridge,  7  Johns.  143,  and  authorities  cited.  Thompson  v.  But- 
ton, 14  Johns.  87. 

There  is  one  exception  stated  by  Blackstone  (vol.  3,  151),  where 
he  says,  "If  I  distrain  another's  cattle  damage  feasant,  and  before 
they  are  impounded  he  tenders  me  sufficient  amends,  now,  though 
the  original  taking  was  lawful,  my  subsequent  detainment  of  them, 
after  tender  of  amends  is  wrongful,  and  he  shall  have  an  action  of 
replevin  against  me  to  recover  them."  But  that  this  is  an  exception 
to  the  general  rule  would  seem  evident  from  the  manner  and  position 
in  which  it  is  stated.  On  page  145,  an  unlawful  taking  is  stated  as 
the  first  injury  to  the  right  of  personal  property  or  possession,  for 
which  the  remedy  is  by  action  of  replevin.  On  page  151,  he  speaks 
of  the  second  injury,  which  is  an  unjust  detainer  of  another's  goods 
when  the  original  taking  was  lawful,  for  which  the  remedy  in  all 
cases  stated,  with  the  single  exception  above  mentioned,  is  either 
detinue  or  trover.  Now  the  learned  commentator  cited  as  his  au- 
thority for  the  exception  above  named,  Fitzherbert's  Nat.  Brev.  69, 
where  the  doctrine  is  stated  thus:  "If  a  man  take  cattle  for  damage 
feasant,  and  the  other  tenders  him  amends  and  he  refuseth  it,  etc. ; 
now  if  he  sueth  a  replevin  for  the  cattle,  he  shall  recover  damages 
only  for  the  detaining  of  them,  and  not  for  the  taking  of  them,  for 
that  the  same  was  lawful,  therefore  no  return  shall  lie."  Baron  Gil- 
bert, in  his  treatise  on  distresses  and  replevin,  says,  this  is  the  only 
instance  in  which  replevin  lies  where  the  original  taking  was  not 
tortious.    Hammond    (in  his  Nisi   Prius  334)    says  the  same,  and 


2JS  ACTIONS 

assigns  the  reason,  namely,  "that  replevin  is  the  proper  action  to  try- 
all  questions  arisintj  out  of  a  distress."  Here  is  the  cause  why  this 
sini^le  excej^tion  to  the  general  rule  was  made,  because  this  was  the 
remedy  so  imiversally  applied  in  all  cases  of  distress,  and  so  seldom  , 
in  any  other  case,  that  Blackstone  (erroneously)  lays  it  down  that 
it  is  applicable  only  there ;  it  was  held,  therefore,  as  a  matter  of 
convenience  in  practice  that  it  should  be  extended  to  cover  all  cases 
of  distress,  even  though  in  a  single  instance  it  should  thus  be  car- 
ried beyond  its  original  and  appropriate  limits. 

W^ith  this  single  exception  the  common  law  is  believed  to  be  uni- 
form that  replevin  does  not  lie  unless  the  original  taking  was  unlaw- 
ful in  fact,  or  made  so  in  law  by  relation,  under  such  circumstances 
as  would  have  made  the  taking  a  trespass  ab  initio.  Our  statute 
makes  other  exceptions.  Kimball  v.  Adams,  3  N.  H.  182.  To  sustain 
these  views,  see,  in  addition,  Com.  Dig.,  Replevin,  A.;  Buller's  N.  P. 
52;  3  Wooddeson's  Lectures  219;  2  Rolle's  Abr.  441 ;  Lord  Redes- 
dale  in  Ex  parte  Mason,  i  Sch.  «S:  Lef.  320,  note;  and  also  in  Ex 
parte  Chamber  lain,  i  vSch.  &  Lef.  322;  and  in  Shannon  v.  Shan- 
non, I  Sch.  &  Lef.  324;  7  Johns.  140;  Story's  PI.  422,  note;  Osgood 
V.  Green,  30  N.  H.  210;  Gardner  v.  Campbell,  15  Johns.  401. 

But  we  find  in  different  states  that  these  actions  have  been  gen- 
erally regulated  by  statute  and  made  to  apply  often  to  very  different 
uses  and  ]nn-poses  from  those  for  which  they  were  originally  de- 
signed. To  be  sure  we  find  in  all  the  states,  perhaps,  the  actions  of 
trespass  and  trover  retained,  trover  l)cing  generally  extended  in 
practice,  so  as  to  cover  all  cases  of  wrongful  detention  and  conver- 
sion, without  regard  to  the  fact  as  to  whether  the  original  taking 
were  legal  or  illegal ;  but  we  find  that  the  actions  of  replevin  and 
detinue  have  met  with  very  unecjual  favor  in  the  different  states. 

In  Massachusetts,  it  has  been  held  that  replevin  may  be  main- 
tained in  all  cases  of  wrongful  detention  of  the  plaintiff's  goods, 
although  the  original  taking  may  have  been  justifiable.  Badger  v. 
Fhinnev,  15  Mass.  359;  Baker  v.  Bales,  16  Mass.  T47;  Marston  v. 
Baldwin,  \j  Mass.  606;  and  in  that  state,  too,  it  is  held  that  detinue 
is  obsolete.  Baker  v.  Bales,  16  Mass.  154;  Colby's  Prac,  and  Howe's 
Prac,  Detinue.  But  these  decisions  in  Massachusetts,  so  far  as  they 
claim  to  rest  upon  the  common  law,  have  been  so  often  and  so  seri- 
ously questioned,  and  are  opposed  by  such  an  overwhelming  weight 
of  authority,  both  English  and  American,  that  they  may  well  be  con- 
sidered as  having  very  little  weight  upon  the  question.  See  argument 
of  Webster  and  Metcalf,  in  Baker  v.  Bales  (page  T48),  and  authori- 
ties cited,  and,  also,  the  numerous  notes  by  the  editor,  and  authorities 
cited  upon  this  case  of  Baker  v.  Bales,  in  the  recent  editions  of  Mas- 
sachusetts Reports;  and  particularly,  note  23,  upon  the  action  of 
detinue.  See  also  Wheat.  Selw.  N.  P.  1194,  and  note  and  au- 
thorities. 

But  it  is  said  that  these  decisions  in  Massachusetts  are  author- 
ized by  their  statute;  and  if  that  were  so,  they  would  stand  well 
enough,  whether  they  accord  with  the  common  law  or  not.  Mellen, 
C.  J.,  in  Seaver  v.  Dingley,  4  Greenl.  315,  in  speaking  of  these  Massa- 
chusetts  cases,    says,   that   the   court,    after   mature   consideration. 


DAME  Z'.   DAME  229 

decided  "that  whatever  might  be  the  strict  principles  of  the  common 
law,  the  statute  of  1789  had  so  altered  the  common  law,  that  an  ac- 
tion of  replevin  may  be  maintained  in  case  of  an  unlawful  detention, 
though  the  taking  was  not  tortious  and  unlawful."  But  even  this 
position  is  disputed,  and  it  is  claimed,  with  apparent  reason,  that 
these  decisions  can  not  be  sustained  either  upon  the  principles  of 
the  common  law  or  upon  the  statute  of  that  state.  See  notes  36  and 
37  to  Baker  v.  Fales,  and  authorities  cited,  where  it  is  said,  that 
neither  the  form  of  the  writ,  as  prescribed  in  tliat  state,  nor  their 
statute  "give  any  countenance  to  the  notion  that  replevin  may  be 
maintained  for  an  unlawful  detention ;  but,  on  the  contrary,  extend 
only  to  cases  of  supposed  unlawful  taking."  And,  also,  "that  it  is 
quite  clear  that  at  the  common  law  no  action  of  replevin  could  be 
maintained  in  this  case." 

Judge  Story  also  seems  to  doubt  whether  these  decisions  in  Mas- 
sachusetts can  stand  even  upon  the  statute  of  that  state,  and  he  does 
not  hesitate  to  pronounce  their  doctrines  as  innovations  upon  the 
common  law  (Story's  PI.  442,  note),. where,  in  speaking  of  the  doc- 
trine that  replevin  may  be  maintained  for  goods  unlawfully  de- 
tained, although  there  may  have  been  no  tortious  taking,  he  says, 
"this  innovation  on  the  common  law,  whether  attributable  to  the 
statute  or  to  the  constrviction  given  to  it,  is  to  be  regretted.  The 
gist  of  the  action  is  altered.  It  is  no  longer  an  unlawful  taking,  but 
an  unlawful  detention.  The  general  issue,  non  cepit,  though  it  can 
hardly  be  overruled  as  a  good  plea  in  replevin,  has  ceased  to  be  a 
logical  defense ;  indeed  is  no  more  to  the  purpose  than  nil  debet,  in 
assumpsit.  It  unsettles  former  decisions,  unless  some  exceptions  are 
set  up  without  an}^  other  reason  than  a  desire  to  avoid  overruling 
former  cases.  Thus,  it  was  formerly  held  that  replevin  would  not 
lie  on  a  bailment  by  the  plaintiff;  but  if  replevin  will  lie  in  all  cases 
of  unlav/ful  detention,  then  it  may  be  maintained  in  many  cases  of 
bailment  and,  lastly,  it  has  destroyed  the  analogy  betw^een  the  actions 
of  trespass  and  replevin,  where  it  existed  before." 

In  Pennsylvania,  it  was  decided  at  an  early  day  that  replevin 
v\'0uld  lie  wherev^  one  man  claimed  goods  in  the  possession  of 
another,  no  matter  how  the  possession  was  acquired.  But  in  that 
state  the  action  of  replevin  is  authorized  and  regulated  only  by  stat- 
ute. Weaver  v.  Lmvrence.  t  D.nll  T57  And  the  law  continues  the 
same.  Staughton  v.  Rappalo,  ^  S.  &  R.  562 ;  Keite  v^  Boyd.^6  S.  &: 
R.  300.  There  could  of  course  be  Tittle  necessity  for  the  action  of 
detinue  in  that  case.^* 

In  Virginia,  it  has  been  held  that  at  common  law  replevin  lay  in 
all  cases  where  goods  were  unlavv'fully  taken.  And  this  was  the  law 
in  that  state  till  1823,  when  an  act  of  the  legislature  confined  the 
v.rit  to  the  case  of  distress  for  rent.    J^aidcn  v.  Bell,  3  Randolph 


^'  Replevin  lies  in  Pennsylvania  "wherever  one  man  claims  goods  in  the 
possession  of  another  without  regard  to  the  manner  in  which  the  possession 
was  obtained,"  per  Agnew,  J.,  in  Herdir.  v.  Vnupa.  55  Pa.  176  (1867).  Det- 
inue is  a  neglected  action,  although  there  arc  occasional  instances  of  its  use. 
Bcrnbridcic :!LJl'nnicr.  2  Yeates  (Pa.)  129  (1799)  ;  Rcmenter  v.__Rr7mn,  11  W. 
1^^.  C.  194  (1882)  ;A/o:r/cr  v.  Haivk,  233  Pa.  316  (1912J 


230  ACTIONS 

4.j8.  In  tliat  state  we  find  the  action  of  detinue  in  very  common  use, 
as  it  is  believed  to  he  in  all  the  southern  and  some  of  the  western 
states. 

In  South  Carolina,  while  detinue  was  in  common  use,  it  is  said  in 
Byrd  v.  O'Harlin,  1  Rep.  Con.  Ct.  401,  that  it  is  not  decided  in  that 
state  whether  replevin  will  lie  in  any  other  case  than  that  of  a  dis- 
tress for  rent. 

So  in  Connecticut,  while  it  is  admitted  that  by  the  hinglish  au- 
thorities, as  well  as  those  of  some  of  the  contiguous  states,  replevin 
lies  for  any  tortious  or  unlawful  taking  of  goods  and  chattels,  yet 
it  is  held  that,  under  their  statute,  it  lies  only  in  cases  of  attachment 
and  distress.    JVatson  v.  Watson,  9  Conn.  140;  s.  c.  10  Conn.  75. 

In  New  York,  previous  to  their  revised  statutes,  they  adhered 
strictly  to  the  common-law  distinction  between  replevin  and  detinue, 
and  both  actions  were  used.  See  7  Johns.  140;  10  Johns.  373;  14 
Johns,  ^y,  and  15  Johns.  402,  before  cited,  which  were  cases  of  re- 
plevin ;  and  Todd  v.  Crookslianks,  3  Johns.  432,  which  was  detinue. 
But  by  their  Revised  Statutes  (vol.  2.  553),  the  action  of  detinue 
was  abolished,  and  the  action  of  replevin  was  made,  by  express  pro- 
vision of  law,  to  cover  the  same  ground,  or  nearly  so,  that  detinue 
had  before  covered. ^^ 

•But  in  North  Carolina,  on  the  other  hand,  it  is  held  that  detinue 
lies  in  every  case  in  which  the  property  is  wrongfully  detained, 
without  regard  to  the  manner  in  which  the  defendant  acquired  pos- 
session.  Johnson  v.  Preston,  Cameron  &  Norwood  464. 

It  is  said  in  3  Black.  Com.  151,  that  there  is  one  disadvantage 
which  attends  this  action  (detinue),  namely,  that  the  defendant  is 
herein  permitted  to  wage  his  \a.\v,  that  is,  to  exculpate  himself  by 
oath,  and  thereby  defeat  the  plaintiff  in  his  remedy,  and  that  for  this 
reason  the  action  itself  is  much  disused,  and  has  given  place  to  the 
action  of  trover.  See,  also,  Bac.  Abr.,  Detinue.  But  the  3  and  4  Wm. 
lY.  ch.  42,  §  13,  abolished  the  wage  of  law  in  all  cases;  since  which, 
this  action  has  been  much  in  use  in  England,  and  is  said  to  be  a  very 
adxantageous  remedy,  especially  where  it  is  material  to  embrace  in 
the  same  action  with  a  count  in  detinue,  another  count  in  debt,  for 
a  money  demand  as  due  upon  a  contract,    i  Chitt.  PI.  121  and  125.^*' 

It  does  not  seem  to  be  clearly  settled  upon  authority,  whether 
the  action  of  detinue  should  be  confined  to  those  cases  where  the 


*■'■  The  recovery  of  chattels  is  now  provided  for  by  the  Code  of  Civil  Pro- 
cedure, §§  1689  to  1736.  Barnett  v.  Selling,  70  N.  Y.  492  (1877)  ;  National  S. 
Co.  V.  Shcahan,  122  N.  Y.  461   (1890). 

'"Prior  to  the  abolition  of  wager  of  law  in  1833,  a  defendant  availed  him- 
self of  this  privilege  as  late  as  1824.  King  v.  Williams,  2  B.  &  C.  538  (1824). 
"Wajrer  of  Law,  if  it  ever  had  a  legal  existence  in  the  United  States,  is  now 
completelv  abolished,"  per  Storv,  J.,  in  Childress  v.  Emory,  8  Wheat.  (U.  S.) 
642  (1823).  See  also,  Troubat  &  Haly's  Practice,  Wiiarton's  Edition,  Vol.  II, 
page  15  note. 

While  detinue,  as  an  action,  has  been  abolished  in  England,  the  name  is 
still  retained,  in  practice,  to  describe  the  modern  statement  of  claim  in  an 
action  based  on  the  same  wrong,  Rules  of  Supreme  Court,  Appendix  C,  Sec- 
tion 2,  No.  2.  See  also,  Rherles  Hotel  &  R.  Co.  v.  Jones,  L.  R.  (1887),  18 
Q.  B.  Div.  459- 


DAME  V.   DAME  23 1 

possession  was  at  first  rightful,  and  only  the  detention  wrongful,  or 
whether  that  remedy,  like  trover,  should  be  extended  to  all  cases 
where  the  detention  is  wrongful,  without  regard  to  the  quality  of 
the  original  possession.  The  earlier  authorities  all  favor  the  former 
view.  Lord  Coke  says,  "that  detinue  lyeth  v/here  any  man  comes 
to  goods  either  by  delivery  or  finding."  Coke  Litt.  286,  b.  Blackstone 
lays  dovk'n  this  rule,  that  in  order  to  maintain  detinue  the  first  point 
to  be  proved  is,  that  the  defendant  came  lawfully  into  possession  of 
the  goods,  as  either  by  delivery  to  him  or  by  finding  them.  3  Bl. 
Com.  151.    Bac.  Ab.,  Detinue;  Wheat.  Selw.  N.  P.  665." 

But  it  is  said  by  Chitty  (i  Chit.  PI.  123)  that  it  is  a  common  doc- 
trine in  the  books,  that  this  action  can  not  be  supported  if  the  de- 
fendant took  the  goods  tortiously;  but  he  pronoimces  the  reasoning 
upon  which  that  opinion  is  founded  as  fallacious,  and  holds  that  it 
may  be  maintained  in  any  case  where  the  detention  v/as  wrongful, 
without  regard  to  the  manner  in  which  the  defendant  acquired  pos- 
session. And  wdiile  there  would  seem  to  be  no  good  reason  for  en- 
larging the  remedy  by  replevin,  any  more  than  there  is  that  of  tres- 
pass de  bonis;  yet  it  may  well  admit  of  a  quaere  whether,  as  a  matter 
of  convenience  in  practice,  and  not  inconsistently  with  principle, 
the  action  of  detinue  should  not  be  so  far  enlarged  beyond  its  orig- 
inal limits,  as  to  keep  pace  with  its  kindred  action  of  trover. ^^ 

It  is  alleged  that  detinue  has  never  been  used  or  authorized  in- 
this  state,  and  that  replevin,  trespass,  and  trover,  afford  ample  reme- 
dies for  all  cases  and  classes  of  injuries.  But  trespass  and  troveri 
are  no  substitute  for  detinue,  for  they  only  give  damages  for  thej 
goods  taken  or  converted,  without  giving  the  party  any  chance  to 
recover  the  chattel  in  specie.  In  regard  to_j^2l£Zi"iJi}l^,J-Pil^''lt5"^ 
tliat  the  common  law^isjn  force  here,  aiiH^that  mis^ction  only  lies 
m  case  of 'a^~wro'ngTul  taking  in  fact,,  or  by' mt^nd^^  of  law  with 
f!TF'sTngle~  7-omnion-Taw  excei)tinn  of  cases  of  cattle  taken  damage 
feasant,  v\  hen  amends  arc  tendered  before  impounding,  and  other 
excepfions  niade  by  our  statute  in  case  of  animals  impounded,  where 
it  is  held  that  it  lies  for  a  wrongful  detention  as  well  as  a  wrongful 
taking;  Kimball  v.  Adams,  3  N.  H.  182;  but  it  must  be  against  the 
person  impounding,  and  can  not  be  against  the  pound-keeper  while 
the  creatures  are  in  his  legal  custody;  Bills  v.  Kinson,  21  N.  H.  448, 
where  it  is  said  that  our  statute  has  added  to  the  causes  for  which 
this  action  may  be  instituted  at  common  law,  not  only  in  the  above 
case  of  animals  impounded,  but  in  case  of  goods  attached  on  mesne 


^'  The  gist  of  the  action  is  the  detention  of  the  goods,  to  the  immediate 
possession  of  which  the  plaintiff  is  entitled.  Kettle  v.  Bromall,  Willes  118 
(1697)  ;  Miller  v.  Graham,  i  B.  &  P.  N.  S.  140  (1804)  ;  Gledstate  v.  Hczvitt. 
I  Cromp.  &  J.  565  (1831)  ;  Clements  v.  Flight,  4  Dowl.  &  L.  261  (1846)  ;  Miller 
V.  Dell,  L.  R.  (1S91),  I  Q.  B.  Div.  468;  Stezi'art  v.  Guy,  138  N.  Car.  176 
(1902)  ;  Williams  v.  Lay,  184  Ala.  54  (1913). 

^^  The  American  cases  generally  hold  that,  as  the  gist  of  the  action  is  the^ 
detainer,  it  is  immaterial  wlicther  or  not  the  defendants'  possession  was  orig 
inally  tortious.  Ovcings  v.  Frier,  2  A.  K.  Mar.  268  (1820)  ;  Bernard  v.  Herbert, 
3  Cranch.  (U.  S.)  346  (1828);  Pierce  v.  Hill,  9  Porter  (Ala.)  151  (1839); 
Schulenberg  v.  Campbell,  14  Mo.  491  (1851)  ;  Shomo  v.  Caldwell,  21  Ala.  448 
(1852). 


2^2  ACTIONS 

process,  when  claimed  by  a  third  i)ers()n,  and  in  case  of  goods  ex- 
empt from  attachment.  Rev.  Stat.,  ch.  204,  §§  1,  2  and  3;  Comp. 
Laws  520. 

In  accordance  w  illi  these  views  is  the  f(jrin  of  the  writ  prescribed 
by  hiw  in  the  action  of  replevin  ( Ivcv.  Stat.,  ch.  182,  §  14;  Comp. 
Laws  4O4).  commanding  the  sheriff  to  replevy  the  goods  belonging 
to  A.  P.,  of,  etc..  "wrongfully  taken  and  detained,"  as  it  is  said,  etc. 
It  would  seem  that  this  form  embraces  the  common  law,  as  nearly 
as  may  be,  as  stated  in  the  English  cases,  re])levin  there  being  held 
to  be  the  ]iroper  remedy  in  cases  where  projierty  has  been  wrongfully 
taken  and  detained,  whether  as  a  distress  or  in  any  other  way. 

Replevin  then  does  not  encroach  ui)on  the  common-law  ground 
of  detinue,  but  leaves  all  that  ground  for  the  application  of  that 
remedy.  It  is  only  when  rejilevin  is  carried  beyond  the  common-law 
limit,  as  in  Massachusetts,  by  the  court,  and  as  it  is  in  some  states, 
as  in  New  York,  by  statute,  that  it  can  be  said  at  all  to  supersede  the 
necessity  of  detinue  as  a  remedy  w^here  the  original  taking  was  law- 
ful, and  it  is  desired  to  recover  the  thing  detained,  in  specie. 

Nor  do  we  find  our  statutes  silent  concerning  the  action  of 
detinue.  In  the  statute  of  limitations  of  1791,  detinue  is  twice  men- 
tioned and  enumerated  with  trespass,  trover,  and  replevin,  and  the 
time  of  limitation  is  fixed  for  each.  N.  H.  laws  of  1815,  164  and 
165.  In  the  later  statute  of  limitations,  passed  in  1825,  we  find  sim- 
ilar provisions,  and  the  same  enumeration  of  action,  in  which  detinue 
is  twice  repeated,  as  before.  N.  H.  laws  of  1830,  76.  And  in  the 
Revised  Statutes,  after  specifying  that  certain  actions,  such  as  for 
words,  etc.,  shall  be  brought  within  tv^o  years,  it  is  provided,  that 
all  other  personal  actions  shall  be  brought  in  six  years.  Rev.  Stat., 
ch.  181,  §§  3  and  4.  AJthough  detinue  is  not  here  enumerated  spe- 
cifically, yet  the  same  is  true  of  trover,  trespass,  debt,  and  all  other 
actions  having  the  same  term  of  limitation. 

It  would  seem  that  detinue  v^-as  a  remedy  as  fully  recognized  by 
our  laws,  and  provided  for  as  specifically  as  any  of  the  other  forms 
of  personal  actions.  Nor  is  its  place  superseded  by  any  other  form 
of  action.  There  are  also  good  and  sufficient  reasons  why  it  should 
be  used,  even  if  it  were  a  concurrent  remedy  with  replevin.  In  the 
latter,  the  plaintiff  resumes  the  j)roperty  in  the  first  instance,  and  if 
he  does  not  ])revail,  he  must  pay  the  defendant  the  value  of  the 
property,  as  by  our  practice  there  is  no  judgment  for  a  return.  Bell 
V.  Bartlett,  7  N.  H.  188.  Rut  in  detinue,  though  the  claim  be  to  re- 
cover the  specific  chattel,  yet  it  is  not  taken  from  the  hands  of  the 
defendant  till  the  right  is  determined,  and  the  plaintiff  takes  his 
property  on  his  execution.^"  No  bonds  are  required. 

Detinue  may  also  be  joined  with  debt  in  the  same  declaration, 
which,  in  a  large  class  of  cases,  is  a  decided  advantage.-"    It  may 

'•'But,  in  Alabama,  see  Jacobs  v.  State,  61  Ala.  448  (1878)  ;  United  States 
V.  Bryant,  iii  U.  S.  499  (1884).  In  West  Virginia,  replevin  having  been  abol- 
ished, a  replevy  bond  and  counter  forthcoming  bond  have  been  made  part  of 
the  proceeding's  in  detinue.   Robinson  v.  Woodford,  2,7  W.  Va.  2>77  (1892). 

^ Dalslon  v.  Janson,  5  Mod.  90  (1696) ;  Rucker  v.  Hamilton,  3  Dana  (Ky.) 
36  (1835)  ;  Calvert  v.  Marlow,  18  Ala.  67  (1850)  ;  Jones  v.  Gordgji^^A  Pa.  263 
V  18:89)  •  Tic f el  Bros.  v.  Maxvjell,  1S4  S.  W.  319  TTex.  1913)- 


DAME  V.  DAME  233 

also  be  brought  for  several  articles,  part  of  which  are  in  existence, 
and  can  be  recovered,  and  a  part  of  which  may  have  been  converted, 
conveyed  away,  or  destroyed;  as  the  judgment  in  detinue  is  in  the 
alternative,  first,  that  the  plaintiff  do  recover  the  goods  in  question 
specifically;  or,  secondly,  if  tlie  plaintiff  can  not  have  the  goods, 
that  he  recover  the  value  thereof,  and  his  damages  for  the  deten- 
tion.-^ 

The  jur}'  must  therefore  find  the  value  not  only  of  all  the  goods 
in  the  aggregate,  but  of  each  article  separately,  so  that  the  plaintiff 
may  have  all  that  can  be  found  of  his  property  in  specie,  and  for  the 
balance,  whatever  it  may  prove  to  be,  he  may  recover  his  damages, 
and  this  all  in  one  suit  and  by  a  single  judgment  and  execution,  i 
Wheat.  Selw.  N.  P.  667;  Saund.  PI.  &  Ev.,  ante.'-^ 

The  difference  in  the  course  of  proceedings,  iti  the  two  cases 
(replevin  and  detinue),  results  naturally  from  the  different  injuries 
for  the  redress  of  which  these  remedies  were  invented.  Where  the 
taking  was  illegal  and  wrongful,  the  redress  was  by  replevin,  in 
which  the  possession  of  the  property  was  immediately  returned  to 
the  party  from  whom  it  had  been  thus  wrongfully  taken;  and  the 
parties  were  then  left  to  determine  their  several  rights.  But  where 
the  possession  was  legally  and  rightfully  obtained,  as  by  a  bailment 
or  a  finding,  but  the  further  detention  was  claimed  to  be  wrongful, 
the  plaintiff  was  not  allowed  to  take  the  property  in  any  summary 
manner  from  the  hands  of  the  defendant,  to  whom,  perhaps,  he  had 
himself  committed  it;  but  he  must  first  tr}^  his  title  and  establish  his 
right,  and  if  he  proved  the  detention  to  be  wrongful,  he  then  recov- 
ered his  goods. 

We  think,  then,  that  there  are  sufficient  grounds,  both  upon  the 
statute  and  upon  authority  and  reason,  as  well  as  convenience,  for 
holding  that  detinue  in  this  state  can  be  maintained. 

The  demurrer  is  overrviled.-' 


"^  Where  the  defendant,  in  detinue,  was  in  possession  of  the  plaintiff's 
goods  under  such  circumstances  that  he  was  bound  to  return  them  on  demand, 
it  is  no  defense  to  say  that  he  has  lost  them,  the  burden  is  on  him  to  show 
that  he  was  not  at  fault.  Reve  v.  Palmer,  5  C.  B.  (N.  S.)  84  (1858)  ;  Good- 
man V.  Boycott,  2  B.  &  S.  I  (1862);  Lynch  v.  Thomas,  3  Leigh  (Va.)  682 
(1832)  ;  Robb  V.  Cherry,  g8  Tenn.  72  (1896).  Where  the  chattel  was  destroyed 
by  casualty  before  suit  is  brought  it  was  held  that  the  action  would  not  lie. 
Lindscy  v.  Perry,  i  Ala.  213  (1841).  On  the  other  hand  where  the  chattel 
was  destroyed  after  suit  brought  the  defendant  was  not  relieved  from  lia- 
bility. Wilkerson  v.  McDoiigal,  48  Ala.  517  (1872)  ;  Carrel  v.  Early,  4  Bibb 
(Ky.)  270  (1815);  Barksdale  v.  Appleberry,  2^  Mo.  389  (1856).  Contra: 
Bethea  v.  McLennon,  23  N.  Car.  523  (1841)  ;  White  field  v.  White  field,  44 
Miss.  254  (1870). 

"When  the  verdict  is  for  the  plaintiff  the  jury  finds  the  value  of  the 
chatties  and  damages  for  their  detention.  Williams  v.  Archer,  5  M.,  G.  &  S. 
318  (1847)  ;  Lenox  v.  Pike,  2  Ark.  14  (1839)  ;  Raniho  v.  Wyatt,  32  Ala.  363 
(1858);  Averett'y.  Milner,  75  Ala  505  (1883);  Higgenbotham  v.  Riicker,  2 
Call  (Va.)  313  (1800)  ;  New  Era  L.  Co.  v.  Daniels,  143  Ky.  207  (1911).  The 
judgment  should  be  in  the  alternative,  for  the  specific  chattels  sued  for,  or 
for  the  value  thereof  as  assessed  by  the  jury,  with  the  damages.  McCidlough 
V.  Floyd,  103  Ala.  448  (1893);  Kirkland  v.  i'iJchcr,  174  Ala.  170  (1911).  If 
the  goods  are  delivered  up  after  suit  brought,  the  plaintiff  recovers  merely 
damages  for  their  detention.    Cross  field  v.  Such,  8  Exch.  159  (1852). 

■'In  detinue  "(i)  the  plaintiff  must  have  property  in  the  thing  sought  to 


-34 


ACTIONS 

(1)  Trover.-' 
DAXIS  i:  HURT. 

Sll'UKAIK  COIRT  OF  ALABAMA,    1896 

''--''   114  Ala.  146 


4 


Tills  \\a>  an  acUon  ot  trover  l^r^nght  hv  the  appellee,  Peter  T.> 
Hurt,  against  the  appellants,  W.  F.  Davis  &  Son,  warehousemen,  tO' 
recover  damages  for  the  alleged  con vei-^giojl -by  the  defendants,  of 
fnreeT^aTes'of  cotton.   Issue  was  joined  upon  the  plea  of  the  general 


issue. 


On  the  trial  of  the  cause,  as  is  shown  hy  the  bill  of  exceptions, 
the  testimony  for  the  plaintiff  tended  to  show  that  he  had  purchased 
from  certain  parties  warehouse  certilicates  for- the  three  bales  oi 
cotton,  which  the  holders  of  said  certificates  had  stored  with  the 
defendants ;  that  these  certificates  belonged  to  the  plaintiff,  and  that 
subsequently  upon  his  making  demand  upon  the  defendants  for  the' 
cotton,  which  said  certificates  represented,  the  defendants  were  un- 
able to  find  the  cotton  in  their  warehouse,  and  that  after  a  diligent 
search  by  the  plaintifi^'s  agent  and  the  defendants,  the  cotton  was 
never  found.    Jt  was  further  shown  that  the  plaintiff  had  instructed 

be  recovered;  (2)  he  must  liavc  the  right  to^its  jmmediate  pqsses^^  (3)  it 
must  be  capable  of  identification ;  (4)  ifls  es'sentiallhat  tli'e  property.bjijpf 
some  xalue;  and  (fj)  the  dere'ndant  must  have  had  possession  at  some  time 
beTore  tlie  institution  of  the"~acfi6n,"  per  Sanders,  J.,  in  Hefner  v.  Fuller,  58 
W.  Va.  159  (1905).  Thus,  detinue  lies  for  a  "six-barreled  pistol,  called  a 
six-shooteV  or  revolver,"  IVright  v.  Ross,  2  Greene  (Iowa)  266  (1849)  ;  or  a 
deed,  Goodman  v.  Boycott,  2  B.  &  S.  I  (1862)  ;  or  a  promissory  note,  if  of  any 
value,  Todd  v.  Crookshanks,  3  Johns.  (N.  Y.)  432  (1808)  ;  Hefner  v.  Fidler, 
supra.  It  will  lie  for  a  specific  bag  of  money,  S pence  v.  McMillan,  10  Ala. 
383  (1846).  See  Southern  H.  Co.  v.  Lester,  166  Ala.  86  (iQio),  but  not 
for  monev  which,  it  is  alleged,  the  defendant  owes  the  plaintiff.  Broivn  v. 
FJlison,  55  N.  H.  556  (1873).  So,  also,  the  plaintiff  must  be  entitled  to  imme- 
diate possession.  ^Bou-ers  v.  Parker,  38  N.  H.  563  (1879)  ;  .S'eals  v.  Fdiiunul- 
son,  72,  Ala.  293  (1882). 

^"The  action  of  trover  or  conversion  was,  in  its  origin,  an  action  of  tres- 
pass on  the  case  for  recovery  of  damages  against  a  person  who  had  found 
gbbdK.  and  refused  to  deliver  them  on  demand  to  the  owner,  but  converted 
them  to  his  own  use;  from  which  word  finding  (trouvcr)  the  remedy  is 
called  an  action  of  trover.    The  circumstance  of  the  defendant  not  being  at 

i  liberty  to  wage  his  law  in  this  action,  and  the  less  degree  of  certainty  requi- 
site in  describing  the  goods,  gave  it  so  considerable  an  advantage  over  the 
action  of  detinue  (which  before  3  &  4  W.  4,  c.  42,  was  subject  to  the  defense 
of  law  wager),  that  by  a  fiction  of_ law  actions  of  trover  were  at  length  per- 
mitted to  be  brouiiht  "against  any  person  who  had  in  his  possession,  by  any 
means  whatever,  the  personal  prope,rt3'oi  another,  and  sold  or  used  the  same 
wTnTcTi't  the  consent  of  the  owner,  or  refused  to  deliver  tlie  same  vvlien  de- 
manded. The  injury  lies  in  the  conversion  and  deprivation  of  the  plaintiff's 
property,  which  is  the  gist  of  the  action  and  the  statement  of  the  finding 
or  trover  is  now  immaterial,  and  not  traversable."  Chitty  on  Pleading,  Vol. 
I,  page  163.  See  History  of  Trover  by  James  Barr  Ames,  Harvard  Law 
Review,  Vol.  XI,  page  277,  reprinted  in  Select  Essays  in  Anglo-American 
Legal  Histor\-,  Vol.  Ill,  page  417.  Cooper  v.  Chitty,  1  Burr.  20  (1756)  ;  38 
Cyc.  1997. 


DAMS  V.  HURT.  235 

the  defendants  to  ship  to  his  cotton  merchant  45  bales  of  cotton,  in 
which  were  included  the  three  bales  involved  in  this  suit,  and  that 
only  42  bales  of  cotton  were  received  by  his  cotton  merchants ;  the 
three  bales  which  were  not  received  being  those  involved  in  this 
suit. 

The  testimony  for  the  defendants  tended  to  show  that  the  de- 
fendants made  a  search  for  the  cotton,  with  the  agent  of  the  plain- 
tiff, and  failed  to  find  it,  and  that  they  afterwards  made  a  diligent 
search  in  their  warehouse  for  said  cotton  without  finding  it ;  and 
that  the  cotton  was  never  shipped  by  the  defendants  after  a  demand 
was  made  by  the  plaintiff  for  said  cotton,  nor  was  it  delivered  to  any 
one  else;  and  that  the  cotton  was  not  in  the  possession  of  the  de- 
fendants at  the  time  the  suit  was  brought. 

Upon  the  introduction  of  all  the  evidence,  the  court  of  its  own 
motion  instructed  the  jury  as  follows:  "If  the  jury  believe  from 
the  evidence  that  the  cotton  in  controversy  was  stored  vx'ith  the  de- 
fendants as  warehousem.en  for  a  reward,  and  the  said  defendants, 
upon  demand  failed  to  deliver  said  cotton,  or  to  account  for  its 
absence,  then  the  defendants  are  liable  in  this  action  to  the  plaintiff 
for  the  value  of  the  cotton  and  interest  thereon  from  the  time  of 
such  demand."-^  Verdict  and  judgment  for  plaintiff.  Defendants 
appeal. 

Bpickell,  C.  J. :  When  the  bailee  fails  to  return  the  goods,  on 
demand,  the  principal  has  an  election  of  remedies ;  he  may  sue  in 
assumT:)sit  for  a  breach  of  contract,  or  in  case  for  negligence,  or  if 
there  has  been  a  conversion  of  the  goods,  in  trover  for  the  conver- 
sion. Story  on  Bailments,  §§  194-269;  Salt  Springs  Nat.  Bank  v. 
Wheeler,  48  N.  Y.  492,  8  Am.  Rep.  564;  Magnin  v.  Dinsmore,  70 
N.  Y.  410,  26  Am.  R.ep.  608.  The  gist  of  the  action  of  trover  is  the 
conversion;  the  right  of  property  may  reside  in  the  plaintiff,  enti- 
tling him  to  pursue  other  remedies,  but  trover  can  not  be  pursue^' 
without  evidence  of  a  conversion  of  the  goods. -^  Glaze  v.  McMUlioA, 
7  Port.  279;  Connor  v.  Allen,  33  Ala.  516;  Balling  v.  Kirby,  90  Ala. 
215.  In  Connor  v.  Allen,  supra,  it  was  said  by  Rice,  C.  J. :  "Trover 
is  one  of  the  actions  the  boundaries  of  which  are  distinctly  marked 
and  carefully  preserved  by  the  code.-"  A  conversion  is  now,  as  it 
has  ever  been,  the  gist  of  that  action,  and  without  proof  of  it,  the 
plaintiff  can  not  recover,  whatever  else  he  may  prove,  or  whatever 
may  be  his  right  of  recovery  in  another  form  of  action."    And  he 


'"  Parts  of  the  statement  of  facts  and  opinion  of  the  court  are  omitted. 

-'•  Thorogood  v.  Robinson,  6  Ad.  &  E.  (N.  S.)  769  (1845)  ;  Brync  v.  Stout, 
15  111.  180  (1853)  ;  Frome  v.  Dennis,  45  N.  J.  L.  515  (1883)  ;  Spooner  v.  Man- 
chester, 133  Mass.  270  (1882)  ;  Evans  v.  Mason,  64  N.  H.  98  (1886)  ;  Mc- 
Phclers  v.  Page,  83  Maine  234  (1891)  ;  Industrial  &  G.  T.  v.  Tod,  170  N.  Y. 
233  (1902)  ;  Walker  v.  First  N.  Bank,  43  Ore.  102  (1903)  ;  Port  Huron  E.  & 
T.  Co.  V.  Otto  G.  E.  IV.,  89  Minn.  393  (1903). 

■'Accord:  Bixel  v.  Bixel,  107  Ind.  534  (1886).  In  England  the  fictitious 
averment  of  finding  was  abolished  by  the  Common  Law  Procedure  Act  of 
1852,  15  &  16  Victoria,  ch.  76,  §  49.  And,  although  the  distinctions  between 
the  forms  of  action  have,  since  the  Judicature  Act  of  1873,  ceased  to  exist,  th? 
substantive  rights  are  preserved.  Henderson  v.  Williams,^  L.  R.  (1895),  I  Q. 
B.  521. 


J^()  ACTIONS 

adopts  the  delinition  or  description  of  a  conversion  given  by  Mr. 
Cireonleat  :  "A  conversion  in  the  sense  of  the  law  of  trover,  consists 
either  in  the  appropriation  of  tlie  thing  to  the  i)arty's  own  use  and 
beneticiai  enjoyment,  or  in  its  destruction,  or  in  exercising  dominion 
over  it.  in  exchision  or  defiance  of  the  i)laintiff's  rights,  or  in  with- 
holding the  possession  from  the  plaintiff,  under  a  claim  of  title  in- 
consistent with  his  own."  2  Greenl.  Ev.,  Sec.  642.  In  Glace  v.  Mc- 
Million,  sitf'ra,  it  was  said:  "It  is  believed  that  all  conversions  may 
be  divided  into  four  distinct  classes:  i.  By  a  wrongful  taking. 
2.  By  an  illegal  assumption  of  ownershi]).  3.  By  an  illegal  user  or 
misuser.  4.  By  a  wrongful  detention."-'*  In  Boiling  v.  Kirby,  supra, 
there  was  a  very  full  examination  of  the  authorities,  and  discussion 
of  the  essential  elements  or  facts  which  must  concur  to  constitute 
conversion  in  the  sense  of  the  law  of  trover,  by  McMillan,  J.;  arid 
the  result  declared  was,  that  "conversion  upon  which  recovery  in 
trover  may  be  had,  must  be  a  positive,  tortious  act.  Nonfeasance  or 
neglect  of  legal  duty,  mere  failure  to  perform  an  act  obligatory  by 
contract,  or  by  which  property  is  lost  to  the  owner  will  not  support 
the  action."-"  The  case  is  republished,  with  elaborate  and  instructive 
annotation  by  Mr.  Freeman,  24  Am.  St.  Rep.  789-819.  In  Ala.  & 
Teiin.  Rwers  R.  R.  Co.  v.  Kidd,  35  Ala.  209,  it  was  held,  that  "trover 
will  not  lie  for  a  bare  nondelivery  of  goods  by  a  warehouseman, 
unless  they  are  in  his  possession,  and  he  refuses  to  deliver  them  on 
demand."' In  Abraham  &  Bro.  v.  Nunn,  42  Ala.  51,  it  was  held, 
that  trover  would  not  lie  against  a  warehouseman,  for  the  conver- 
sion of  goods  taken  from  his  possession  by  an  armed  force,  without 
negligence  or  complicity  on  his  part.  In  Salt  Springs  Nat.  Bank  v. 
Wheeler,  supra,  the  defendant  had  received  for  acceptance  certain 
bills  of  exchange,  and  at  the  demand  of  the  person  entrusting  them 
to  him,  failed  to  return  them,  saying  he  could  not  find  tliem,  and 
might  have  torn  them  up  with  papers  he  considered  of  no  value ;  it 
was  held,  he  was  not  liable  in  trover,  there  being  no  evidence  of  a 
voluntary  or  intentional  destruction  or  loss  of  the  bills;  though  he 
was  liable  upon  his  implied  promise  to  present  the  bills  for  accept- 
ance, and  if  not  accepted  or  paid,  to  give  notice  to  the  plaintiff. 


^A  mere  assertion  of  title  to  a  chattel  will  not  amount  to  a  conversion. 
Lowry  v.  Walker,  4  Vt.  76  (1831)  ;  Fernald  v.  Cha.';c,  2>7  Maine  289  (1853)  ; 
Gilleiv.  Robert.'!,  57  N.  Y.  28  (1874)  ;  Sliaz,'  v.  Vu'o/'t'.  8  Pa.  Super.  Ct.  491 
(1898).  So  a  mere  asportation,  although  wrongful,  is  not  necessarily  a  con- 
version unless  the  party  taking  the  goods  intends  some  use  to  be  made  of 
them  by  himself  or  those  for  whom  he  acts,  or,  unless  owing  to  his  act  the 
goods  are  destroyed  or  consumed  to  the  prejudice  of  their  lawful  owner. 
Fouldc.s  V.  Willoughby,  8  M.  &  W.  540  (1841)  ;  Mattice  v.  Brinknian,  74  Mich. 
705  (1889)  ;  farn.'Hi'orth  v.  Lowery,  134  Mass.  512  (1883)  ;  Hammond  v.  .Sul- 
livan, 99  N.  Y.  S.  472  (1906)  ;  Lee  Tung  v.  Burl; hart,  59  Ore.  194  (1911)- 

=^ Accord:  Mulgrave  v.  Ogden,  Cro.  Eliz.  219  (1591)  ;  Heald  v.  Carey,  11 
C.  B.  977  (1852)  ;  Jalin.wn  v.  .^trader,  3  Mo.  586  (1832)  ;  Hazvkins  v.  Hoff- 
man,  6  Hill  (N.  Y.)  586  (1844)  ;  Forehand  v.  Jones,  84  Ga.  508  (1899)  ;  W^^y 
V.  Dcnnie,  174  Mass.  43  (  1899)  ;  Andrevjs  v.  Carl,  77  Vt.  172  (1904)-  Other- 
wise where  there  has  been  positive  misconduct,  Phillips  v.  Brigham,  25  Ga. 
617  (1859);  Wheelock  v.  Wheelwright,  5  Mass.  104  (1809);  Woodman  v. 
Hubbard,  25  N.  H.  67  (1852)  ;  Donncll  v.  Canadian  P.  R.  Co.,  109  Maine  500 
(1912). 


DAVIS  V.  HURT.  237 

Without  pursuing  further  an  examination  of  authorities,  it  may 
safely  be  said,  that  a  mere  failure  by  a  bailee  nn  HemanH  made^  to 
deliver  goods  which  have  been  entrustedto  him,  is  not  a  conversion 
which  \j\\\  support  an  action  of  trover,  if  he  sets  up  no  title  hostile  to 
"or  inconsistent  with  the  title  of  the  bailor,  or  ha^  IIUL  appfcJpriatecT 
fHem  to  his  own  use,  or  to  the  use  of  a  third  person,  or  exercised 
nv^Lliem  a  dominion  inconsistent  with  tJi£..{:taiiment.  All  that  can 
"tTETairly  predicated  of  the  facts  ?oun(^  in  the  record,  is  the  mere 
failure  to  deliver  the  cotton  upon  the  demand^"  of  the  plaintiff; 
possession  of  it  not  remaining  with  the  defendant.  There  was  no 
denial  of  the  title  of  the  plaintiff,  nor  a  dominion  exercised  over  the 
cotton  inconsistent  with  the  terms  of  the  bailment,  no  evidence  of  a 
conversion  or  appropriation  of  it  to  their  own  use,  or  to  the  use  of 
any  third  person  by  the  defendants.  The  failure  to  deliver,  unex- 
plained, raises  a  presumption  of  negligence  against  them,  and  may 
involve  them  in  a  liability  for  a  breach  of  the  contract  of  bailment, 
or  for  negligence  in  the  performance  of  the  dttty  springing  from  the 
contract,  but  it  is  not  the  conversion ;  the  positive,  tortious  act,  indis- 
pensable to  maintain  trover. -^^  From  this  view,  it  results  there  was 
error  in  the  instruction  given  voluntarily  by  the  court  below. 

Reversed  and  remanded. '•- 


'"  Where  the  original  taking:  is  tortious  no  demand  is  necessary  before 
suit.  Farrington  v.  Smith,  15  Johns.  (N.  Y.)  431  (1818)  ;  Earle  v.  V'anburen, 
7  N.  J.  L.  344  ( 1799)  ;  Magnycr  v.  Haii'thorn,  2  Harr.  (Del.)  71  ( 1836)  ;  Bntner 
V.  Dyball,  42  111.  34  (1866)  ;  Gihnore  v.  Ncivton,  91  Mass.  171  (1864)  ;  Claflin 
V.  Guriiey,  17  R.  I.  185  (1890).  But  where  the  possession  of  the  defendant 
was  originally  lawful,  and  he  has  done  nothing  that  constitutes  an  actual 
conversion,  then  demand  must  be  shown.  Dictus  v.  Fuss,  8  Md.  148  (1855)  ; 
Cutter  V.  Fanning,  2  Iowa  580  (1856)  ;  Y eager  v  IVallace,  S7  Pa.  365  (1868)  ; 
Castle  v.  Corn  Exchange  Bank,  148  N".  Y.  122  (1895)  ;  Moore  v.  Monroe  R. 
Co.,  128  Ala.  621  ( 1900)  ;  Marcus  v.  Chicago,  M.  &  S.  P.  R.  Co.,  167  111.  App. 
638  (1912). 

"^Accord:  Rogers  v.  Huie,  2  Cal.  571,  56  Am.  Dec.  363  (1852)  ;  Sturges 
V,  Keith,  57  111.  451,  II  Am.  Rep.  28  (1870)  ;  Dearbonrn  v.  Union  N.  Bk.,  58 
Maine  273  (1870)  ;  Berman  v.  Kling,  81  Conn.  403  (1908)  ;  Cohen  v.  Koster, 
^ii  App.  Div.  (N.  Y.)  570  (1909).  But  trover  is  the  proper  action  where 
there  has  been  a  wrongful  delivery^  of  goods  to  one  not  entitled  to  them. 
Devereux  v.  Barclay,  2  B.  &  Aid.  702  (1813)  ;  Cerkel  v.  Waterman,  63  Cal. 
34  (1883)  ;  Louisville  &  N.  R.  Co.  v.  Barkhousc,  100  Ala.  543  (1892)  ;  Peo- 
ple's Bank  V.  Mo.,  K.  &  T.  R.  Co.,  158  Mo.  App.  519  (1911)  ;  First  N.  Bank 
v.  Rons  ford,  158  Mo.  App.  519  (1911). 

"  Trover  may  be  maintained  for  every  species  of  personal  property  wdiich 
is  the  subject  of  private  ownership  and  has  value.  Nebraska  v.  Omaha  :V. 
Bank,  59  Nebr.  483  (1899);  Alexmider  v  CnU^frlfi^  13  Pa.  Super.  Ct.  518 
(1900),  money;  Qavisj^  F 1 1  n  k ,  .IQP  a .  243  (1861),  promissorv  note;  Amory 
V.  I'lynn,  10  JohnsTCN?  Y.)  "102^X1813),  wild  geese  that  had  been  tamed"; 
Cnmmings  v.  Perham,  i  Mete.  (Mass.)  555  (1840),  a  dog;  Ayres  v.  French,  41 
Conn.  142  (1874)  ;  ^iter  v.  Kelly,  69  Pa.  403  (1871)  ;  Daggett  v.  Davis,  53 
Mich.  35  (1884)  ;  Reacltng  t.  Lo.  v.  Harley,  186  Fed.  673  (1911),  certificates 
of  stock;  Vaughn  v.  Wright,  139  Ga.  736  (1913),  tax  receipts.  It  does  not  lie 
lor  a  public  record.  Keeler  v.  Fassett,  21  Vt.  539  (1849),  nor  for  chattels 
that  have  for  their  object  the  violation  of  law,  Spalding  v.  Preston,  21  Vt. 
9  (1848)  ;  Morrill  v.  Cooclenoxv,  65  Maine  178  (1876)  ;  Robertson  v.  Porter,  i 
Ga.  App.  223  (1907). 

To  maintain  trover  the  plaintiff  must  have  a  property  in  the  chattel,  gen- 
eral or  special,  and  the  actual  possession  or  the  right  to  immediate  possession. 


> 


23S  ACTIONS 

(m)   Replevin.  '^ 
SINNOTT  V.  FKTOCK. 

•'  '  165  iV.  Y.  444. 

Replevin  to  recover  certain  chattels  which  it  was  alleged  the 
plaintiff  was  induced  to  sell  to  the  defendant  by  fraud  on  the  part 
of  the  latter.  On  the  trial  it  was  conceded  that  prior  to  a  demand 
'for  the  return  of  the  goods  and  before  the  commencement  of  the 
action  the  chattels  had  beenjaken  from  the  defendant  on  an  execu- 
tion  against  him  and-sold.  so  that  at  the  flme^ofTRe  demand  and 
conimeiic-ement  of  the  action^  they  were  not  in  the  defendant's  pos- 
session,  custody  or  conffol"  "There"  was"  no  "suggestion  of  collusion 
with " the'"execiition'  cTecIltor.  The  trial  court  dismissed  the  com- 
plaint and  the  judgment  entered  on  such  dismissal  was  affirmed  by 
the  appellate  division  of  the  Supreme  Court.    Plaintiff  appeals."* 

CuLLEN,  J. :  Originally  at  common  law  the  action  of  replevin 
lay  to  recover  the  possession  of  goods  illegally  distrained  by  a 
landlord.  The  primary  object  of  the  action  was  to  recover  posses- 
sion of  the  specific  chattels.  The  form  of  action  was  so  useful  that 
the  action  was  extended  to  nearly  all  cases  of  unlawful  caption  or 
detention  of  chattels  where  it  was  sought  to  recover  tlie  chattels  in 
specie. ^^  In  many  cases  where  the  plaintiff  was  unable  to  obtain  the 
return  of  the  chattels  he  could  recover  in  the  action  their  valvie. 


MartiiL  v  Megargee^  212  Pa.  558  (1905)  ;  Abbott  v.  Crcmer,  118  Wis.  ^77 
(1903)  ;  Aettleton  \.  Kerr,  167  111.  App.  74  (1912).  As  against  a  stranger 
possession  alone  is  sufficient  to  maintain  trover.  Giinzburger  V.  Rosenthal, 
226  Pa.  300  (1910).  ' 

'"'Replevin  is  an  action  at  law  for  the  recovery  of  specific  personal  chat- 
tels, wrongfull}'  taken  and  detained,  or  wrongfully  detained,  with  damages 
which  the  wrongful  taking  or  detention  has  occasioned.  It  is  what  we  usually 
term  a  mi.Ked  action,  heing  partly  in  ron  and  partly  in  personam — in  rem  so 
far  as  the  specific  recovery  of  the  chattels  is  concerned,  and  in  personam  as 
to  the  damages.  To  sustain  the  action  plaintiff  must  have  the  rigiit  to  imme- 
diate and  exclusive  possession  at  the  time  of  the  commencement  of  his  suit." 
Fredericks  v.  Tracy,  98  Cal.  658  (1893).  See,  also,  Fisher  v.  IVhoollerv,  25 
Pa.  197  (1855)  ;  Maclary  v.  Turner,  9  Houst.  (Del.)  281  (1891);  Kbbb  v. 
Dohrinski,  14  Okla.  563  (1904)  ;  Pedrick  v.  Kiiemmell,  74  N.  J.  L.  379  (1907)  ; 
Hitch  v.  Riggin,  26  Del.  84  (1911)  ;  Shantz  v.  Shriner,  167  Mo.  App.  635 
(1912).  Replevin  differs  from  trover  and  trespass  in  that  it  is  for 
the  recovery  of  the  specific  property,  and  not  primarily  for  damages;  it  dif- 
fers from  detinue  in  that  it  restores  the  property  to  the  plaintiff  at  the  begin- 
ning of  the  action.  Mcnnie  v.  Blake, 6  Ell.  &  BI.841,  and  authorities  there  cited; 
Hrrdir  v    Vnini^j^^  Pa.  176  (1867)  ;  La  I'ie  V.  Crosby,  43  Ore.  612  (1903). 

"  The  arguments  of  counsel  and  part  of  the  opinion  of  the  court  are 
omitted.    The  statement  of  facts  is  derived  from  the  opinion. 

"The  statement  in  III  Blackstone's  Commentaries,  146,  that  replevin  only 
applied  in  one  instance  of  unlawful  taking,  that  of  wrongful  distress,  is  now 
admitted  to  have  been  incorrect.  Shannon  v.  Shannon,  i  Sch.  &  Lef.  324 
(1804)  ;  George  v.  Chambers,  11  M.  &  W.  149  (1834)  ;  Minnie  v.  Blake,  6 
Ell.  &  Bl.  841  (1S56).   Replevin  in  England  is  now  almost  entirely  governed  by 


SINNOTT  V.    FEIOCK  239 

Still,  the  action  remained  essentially  one  to  recover  the  possession 
of  chattels  as  distinguished  from  actions  in  trespass  or  trover  to 
recover  damages  for  the  seizure  or  for  the  value  of  the  property. 
There  were  many  technical  rules  in  force  relating  to  this  form  of 
action,  which  at  times  made  proceedings  under  it  difficut,  and  in 
1788  a  statute  was  passed  in  this  state  (i  R.  L.  1813,  p.  31)  to 
simplify  the  procedure.  It  directed  the  form  of  plaint  before  the 
sheriff  in  which  the  plea  was  "of  taking  and  unjustly  detaining" 
beasts,  goods  or  chattels. ^"^  Afterwards  the  Revised  Statutes  pre- 
scribed the  rules  governing  actions  of  replevin  and  the  procedure 
therein.  The  provisions  of  chapter  2  of  title  7  of  the  Code  of  Pro- 
cedure of  1848,  entitled  claim  and  delivery  of  personal  property, 
operated  as  a  substitute  for  those  of  the  Revised  Statutes.  They 
direct  that  at  the  commencement  of  the  action  the  plaintiff  may 
replevy  the  chattels,  but  in  the  affidavit  to  obtain  the  vv^rit  there  is 
required  the  statement  that  the  defendant  "unjustly  detains"  them. 
The  provisions  of  the  present  Code  of  Civil  Procedure  in  the  article 
entitled  "Action  to  recover  a  chattel"  (Sec.  1689  to  Sec.  1730),  are 
substantially  the  same  as  those  of  the  old  code.'^ 


the  County  Courts  Act  of  1888,  51  &  52  Victoria,  ch.  43,  §§  133-137,  and  the 
rules  of  court  under  that  act. 

In  America  the  weight  of  authority  is  that  the  remedy  never  was  re- 
stricted to  cases  of  wrongful  distress  but  was  proper  for  any  unlawful  taking. 
Bruen  v.  Ogdcn,  11  N.  J.  L.  370  (1830)  ;  Daggett  v.  Robins,  2  Blackf.  (Ind.) 
415  (1831)  ;  Ely  V.  Ehle,  3  N.  Y.  506  (1850).  And  now  by  judicial  decision 
or  statute  the  rule  generally  prevails  that  the  action  will  lie  for  unlawful 
detention  mereh-,  in  cases  where  the  original  taking  was  not  tortious.  Ohio 
V.  Jennings,  14  Ohio  St.  Jz  (1862)  ;  Whitman  v.  Merrill,  125  Mass.  127  (1878)  ; 
Gildas  V.  Crosby,  61  Mich.  413  (1886)  ;  Hart  v.  Boston  &  M.  R.  Co.,  72  N.  H. 
410  (1903).  In  Pennsylvania  it  was  held  at  an  early  date  that  the  action 
would  lie  "whenever  a  plaintiff  claims  goods  in  the  possession  of  another." 
Weaver  v.  Lawrence,  1  Dall.  (Pa.)  156  (1785)  ;  Shearick  v.  Hiiber,  6  Binn. 
(Pa.)  2  (1813).  "■        ^ 

A  mere  taking,  however,  will  not  support  the  action,  the  gist  of  which  is 
tortious  detention.  Page  v.  Crosby,  41  Mass.  210  (1835)  ;  Johnson  v.  Johnson, 
4  Harr.  (Del.)  171  (1844);  Hickey  v.  Hinsdale,  12  Mich.  99  (1863);  Kier- 
bow  V.  Young,  20  S.  Dak.  414  (1906)  ;  Petchenik  v.  Rich,  84  N.  J.  L.  592 
(1913)- 

^^  The  general  rule  is  that  all  personal  property  of  a  tangible  nature  may 
be  the  subject  of  replevin,  Eddy  v.  Davis,  35  Vt.  247  (1862),  cattle;  Flentge 
V.  Priest,  53  Mo.  540  (1873),  seal  of  court;  First  Church  v.  Stearns,  38  Mass. 
148  (1838),  church  records;  Bush  v.  Groomes,  125  Ind.  14  (1890),  promis- 
sory note.  Replevin  will  not  lie  for  fixtures  attached  to  realty,  _Roberts  v. 
JJajiphin  D.  Bank^ig  Pa.  71  (1852)  ;  Niblet  v.  Smith,  4  T.  R.  504  (1792)  ; 
nor  for  property  mTTie  custody  of  the  law.  Smith  v.  Huntingdon,  3  N.  H.  76 
(1824);  Pott  v.  Oldwine,  7  \Yatt5-  (Pa.)  173  (1838);  nor  for  corporate 
stock  as  distinguished  from  the  certificates.  Ashton  v.  Heydenfeldt, 
124  Cal.  14  (i8og)  ;  nor  for  articles  on  the  person  of  the  defend- 
ant, Ma.rham  v.  Day,  82  Mass.  213  (i860);  nor  for  money  incapable  of 
specific  identification,  Spear  v.  Ark.  Nat.  Bank,  163  S.  W.  508  (Ark.  1914)  ; 
nor  for  a  coffin  with  the  corpse  enclosed  after  burial,  Guthrie  v.  Weaver,  i 
Mo.  App.  136  (1876),  but  as  to  the  right  to  possession  of  a  corpse,  see  Petti- 
grew  V.  Pettigrezv,  213.  Ea.^13  (1904)  ;  Doodeward  v.  Spence,  6  Cornmon-" 
wealth  Reports  (Australia)  406  (1908);  Miner  v.  Canadian  P.  R.  Co.,  15 
Western  Canada  Law  Reporter  161    (1910). 

'■  The  name  "claim  and  delivery"  derived  from  the  New  York  Code  of 
1848  has  been  adopted  in  many  code  jurisdictions  to  describe  the  statutory 


240  ACTIONS 

The  qucstidii  scxeral  times  arose  under  the  Code  of  Proeedtire 
whether  replevin  eould  he  niaintaineil  against  a  party  who  was  not  in 
possession,  eitlier  actual  or  constructive,  of  the  chattels,  and  was  the 
suhject  of  conflicting  decisions  in  the  Supreme  Court  and  in  the 
Superior  Court  of  New  York.  It  Imally  came  to  this  court  in 
Xicl'.ols  V.  Alichael  (23  N.  Y.  264).  This  was  also  a  case  of  fraud- 
ulent purchase  of  goods  in  which  the  defendant,  before  the  action 
\vas  brought,  had  voluntarily  transferred  the  goods  to  his  assignee. 
It  was  hekl  that  the  action  could  be  maintained.  This  decision  was 
based  on  the  authority  of  two  English  cases,  Garth  v.  Howard  (5 
Car.  &  P.  346)  and  Jones  v.  Do7vlc  (9  M.  &  W.  19).  In  the  case  in 
this  court  Judge  Selden  wrote :  "The  theory  upon  which  these  cases 
proceed  is  perfectly  sound,  and  applies  directly  to  the  ])resent  case. 
It  is,  that  where  a  person  is  in  possession  of  goods  belonging  to 
another,  which  he  is  bound  to  deliver  upon  demand,  if  he,  without 
authority  from  the  owner,  parts  with  that  possession  to  one  who 
refuses  to  deliver  them,  he  is  responsible  in  detinue  equally  with  the 
party  refusing.  He  contributes  to  the  detention.  It  is  the  conse- 
quence of  his  own  wrongful  delivery.  The  action  in  such  cases  may 
properly  be  brought  against  both,  because  the  acts  of  both  unite  in 
I)roducing  the  detention."  This  doctrine  has  been  steadily  adhered 
to  by  tliis  court.  (Burnett  v.  Selling,  70  N.  Y.  492 ;  Dunham  v.  Troy 
Union  R.  R.  Co.,  3  Keyes,  543.)'^*  These  decisions,  however,  do  not 
control  the  .present  case.  They  are  authorities  to  the  effect  that 
where  the  defendant  has  wrongfully  parted  with  possession  the 
action  will  lie.  As  already  stated,  the  defendant  did  not  part  with 
possession  by  any  act  on  his  jiart,  but  the  pro])erty  was  taken  from 
him  by  process  of  law  valid  as  to  him  and  which  he  could  not 
resist.  To  uphold  a  recovery  in  replevin  under  such  circumstances 
we  must  go  further,  and  decide  that  whenever  property  has  been 
taken  or  obtained  wrongfully  an  action  of  replevin  may  be  main- 


remedy  given  in  lieu  of  replevin,  California  Code  of  Civil  Procedure,  §§  5CK)- 
521,  EUinghoe  v.  Brakkcn,  36  Minn.  156  (1886);  Hall  v.  Hall,  i  Idaho  361 
(1871)  ;  Fredericks  v.  Tracy,  98  Cal.  658  (1893)  ;  Hooker  v.  Lalhain,  118  N. 
Car.  170  (i8g6).  The  technical  action  of  replevin  has  been  abolished 
in  many  of  the  states  and  supplied  by  a  statutory  equivalent.  In  others  the 
name  has  been  retained  but  the  action  has  been  modified  so  as  to  enlarge  its 
scope  and  simplify  its  procedure.  C'obbey  on  Replevin  (igoo),  §  Q ;  A.  &  E. 
Encyc.  of  Law  (I'st  ed.),  vol.  20,  p.  1041 ;  Fa  Act  of  April  19,  1901,  P.  L.  88; 
Harris  v.  Krause,  60  N.  J.  L.  72  (1897)  ;  l^^'^O  V-  Worris,  7;^  N.  ^T  L.  279 
(1906). 

"  To  maintain  replevin  the  general  rule  is  that  tlie  defendant  mu.st  have 
either  actualor  con^structive  possession  of  the  property  sued  for  at_ttie  time 
oTlnm^ng^uTiyBraWeyv  33T  Ci'S62)  ;  M'ltclielt  vTTTo^rts, 

50  N.  H.  48(3X1871)  ;  Calnan  v.  Stern,  153  Mass.  413  (1891).    As  to  \vhether 
I  the  action  will  lie  where  the  defendant  has  wrongfully  parted  with  possession 


/"Before  suit  there  is  a  conflict  of  opinion.  In  accord  with  the  New.  York  deci- 
sions  are^zC£r  v  Tfl/^»a«,  5  W.  &  .S.  (Pa.)  556  (1843)  ;  Pomeroy  v.  Trimper, 
90  Mass.  398(1854);   Harkey  v.   Tillman,  40  Ark.  551    (1883);   Helman  v. 


Withers,  3  Ind.  App.  532  (1891)  ;  McBrian  v.  Morrison,  55  Mich.  351  (1884)  ; 
Andrews  v.  Hoeslich,  47  Wash.  220  (1907).  Contra  :  Feder  v.  Abrahams,  28  Mo. 
App.  454  (1888)  ;  Webb  v.  Haysty,  80  N.  Car.  305  (1879)  ;  Warren  v.  Letter, 
24  R.  I.  36  (1902);  Glass  v.  Basin  &  B.  S.  M.  Co.,  31  Mont.  21  (1904); 
Kierhov.'  v.  Yonnf/,  20  S.  Dak.  414  (1906). 


SINNOTT  Z'.  FEIOCK  24I 

tallied  against  the  taker  regardless  of  whether  the  property  is  in  his 
possession  or  whether  he  has  been  lawfully  deprived  of  it,  and, 
as  a  logical  sequence,  as  we  think,,  also  regardless  of  the  fact  that 
the  property  sought  to  be  replevined  may  have  ceased  to  exist  with- 
out fault  on  the  defendant's  part ;  in  other  words,  that  the  action  can 
be  maintained  under  all  circumstances  to  the  same  extent  as  an 
action  for  conversion.  Such  a  doctrine  would  substantially  destroy 
the  characteristics  of  an  action  of  replevin  which  distinguish  it  as 
an  action  to  recover  possession  of  specific  property,  and  we  find 
no  authority  for  it  in  the  decisions  of  this  or  of  our  sister  states. 
In  Massachusetts  the  rule  seems  absolute  that  the  defendant  must 
be  in  possession  when  the  action  of  replevin  is  brought.  (Richard- 
son v.  Reed,  4  Gray  441;  Hall  v.  White,  106  Mass.  599.)  In  the,, 
earlier  case  it  is  said:  "By  the  common  law  replevin  can  not_be| 
maintained  wlicrc  trespass  can  not;  for.  by  thatTaw"^  an  unTaw^fuI' 
fai<ing  of  go'tvls  is  a  prerequisite  to  tlie  mainteiiance  of  repleA'in. 
Fut  trespass  will  lie  in  cases  where  replevin  jY.ill  not.  Replevin, 
being  an  action  in"wliicTi"  the  process  is  partly  in  rem,  wall  not  lie 
where  it  is  impracticable  or  unlawful  to  execute  that  part  of  the 
process  according  to  the  precept."  In  the  later  case  it  was  held 
that  the  action  would  not  lie  against  a  sheriff  wdio  had  seized  goods 
but  parted  with  possession  before  the  date  of  the  plaintiff's  writ. 
The  same  rule  obtains  in  New  Hampshire  {Mitchell  v.  Roberts,  50 
N.  H.  486),  Iowa  {Coffin  v.  Gephart,  18  Iowa  256),  Missouri  {Feder 
V.  Abrahams,  28  Mo.  App.  454 ;  Davis  v.  Randolph,  3  Mo.  App.  454), 
Maine  {Ho7.ve  v.  Shazv,  56  Maine  291),  Minnesota  {Ames  v.  Miss- 
Boom  Co.,  8  ]\Iinn.  467),  and  in  North  Carolina  (Haughton  v.  New- 
berry, 69  N.  Car.  456). ''^ 

In  A'lrginia  there  is  a  very  early  case  on  the  subject  {Burnley 
V.  Lambert,  i  Wash.  308)  argued^  by  Mr.  (afterwards  Justice) 
Washington  and  Mr.  (afterwards  Chief  Justice)  Marshall.  It  was 
there  held  that  the  defendant  could  not,  by  transferring  the  prop- 
erty before  the  commencement  of  the  action,  defeat  the  writ.  In 
the  opinion  it  is  said  that  "Possession  of  the  defendant  prior  to  the 
suit  v.-as  sufficient  to  charge  him  unless  he  was  legally  evicted." 
Jn  Pool  v.  Adkisson  (i  Dana  no)  the  Court  of  Appeals  of  Ken- 
tucky, following  the  decision  in  Burnley  v.  Lambert,  held  that  the 
voluntary  transfer  of  the  defendant  before  suit  did  not  defeat  an 
action  in  replevin.  It  is  there  said:  "According  to  the  case  of 
Burnley  v.  Lambert,  the  fact  that  the  plaintiff  was  not  possessed  of 


'"  The  cases  are  collected  and  discussed  in  a  note  in  18  Lawyers'  Reports 
Annotated  N.  S.,  p.  1266.  "The  Writ  of  Replevin  is  not  regarded  in  Pennsyl- 
vania altogether  as  a  proceeding  in  rem,  but  is  a  proceeding  also  against  the 
defendant  in  the  writ  personally;  and  under  this  view  of  it,  the  practice  has 
uniformly  been  to  insert  in  the  writ  a  summons  to  the  defendant  to  appear; 
and,  for  the  greater  security  and  convenience  of  the  owners  of  personal 
property  from  whom  the  possession  is  improperly  withheld,  the  action  of  1 
replevin  may  be  maintained  by  such  owners  in  all  cases,  and  may  proceed  on  | 
the  summons  alone,  where  the  property  has  been  eloigned  or  disposed  of." 
Per  Sergeant,  J.,  in  Baldzvin  v.  Cash,  7  W.  &  S.  (Pa.)  425  (1844). 

16 — Civ.  Proc. 


24-  ACTIONS 

tho  slaves  when  this  suit  was  broui^ht  can  not  change  or  affect  the 
rcinody.  unless  he  had  been  'legally  evicted.'  This  doctrine,  if  in- 
terjireted  literally,  may  be  too  restrictive.  P>ut  it  seems  to  be  free 
from  just  excei)tion,  if  understood  as  we  suppose  it  ought  to  be,  to 
mean  that  the  plaintiff  had  been  divested  of  the  possession  in  a 
manner  authorized  by  law.  and  which  would,  therefore,  exonerate 
him  from  the  charge  of  tortious  conduct."  It  was  held  by  the  court, 
in  CaliiwcH  v.  Fenzvick  (2  Dana  333),  that  detinue  could  not  be 
maintained  for  a  slave  dead  before  the  commencement  of  the  action, 
though  otherwise  if  he  had  died  subsequent  to  the  commencement 
of  the  action,  or  the  defendant  had  improperly  parted  with  his  pos- 
session. The  court  said:  "Detinue  is  a  mode  of  action  given  for  the 
recovery  of  a  specific  thing  and  damages  for  its  detention,  though 
judgment  is  also  rendered  in  favor  of  the  plaintiff  for  the  alternate 
value,  provided  the  thing  can  not  he  had;  yet  the  recovery  of  the 
thing  itself  is  the  main  object  and  inducement  to  the  allowance  of  the 
action.  *  *  *  The  action  is  not  adapted  to  the  recovery  alone  of 
the  value  of  a  thing  detained ;  nor  can  it  be  maintained  therefor." 

We  ha\'e  thus  reviewed  the  leading  cases  in  this  country  in  ref- 
erence to  the  circumstances  under  which  an  action  of  replevin  can 
be  maintained.  None  of  them  authorizes  the  maintenance  of  the 
action  under  the  circumstances  of  the  present  case.  In  all  of  them 
replevin  is  held  to  be  essentially  a  possessoix  acticm.  In  many  of 
the  states  it  is  unqualifiedly  requisTfe'Tor  the  mainjtenance  of  the 
actiorTTH'ariFr'deFendariT  sh15litd"'1^"F  m"  of  the  chattels 

sued  for  at  the. time  the  action  was  commenced.    In  others,  as  in 
our  owtTstate,  an  exception' is  made  to  the  general  rule  where  the 
defendant  has  voluntarily  parted  with  the  property.    Still  the  excep- 
tion goes  only  to  the  extent  stated.   The  law  in  Virginia  and  Ken- 
tucky is  substantially  the  same  as  our  own,  and  the  cases  cited  from 
those  states  are  well  reasoned  on  principle.    The  case  at  bar  falls 
I  within  the  rule  stated  in  those  cases,  that  where  the  defendant  is 
)  evicted  by  legal  process  before  suit  brought  the  action  will  not  lie, 
and  we  are,  therefore,  of  opinion  the  disposition  of  the  case  by  the 
courts  below  was  correct.'*" 
Judgment  affirmed. 


'"At  common  law  where  tlie  goods  were  delivered  to  the  plaintiff,  the 
judgment  in  his  favor  was  for  damages  for  the  detention;  the  judgment  if  for 
defendant  was  pro  rctorno  habcndo.  Ilastonw.  W'orthington,  5  Serg.  &  R. 
(Pa.)  130  (1819)  ;  Morris  on  Rcplevin^^TX  Tf  the"" defendant  kept  the  goods 
under  a  claim  of  property  the  judgment  for  plaintiff  was  for  the  value  of  the 
goods  and  damages  and  the  defendant  had  no  option  to  return  tlie  goods. 
Field  v.  Post,  38  N.  J.  L.  346  (1876).  While  the  practice  differs  in  the  differ- 
ent jurisdictions  the  tendency  of  modern  statutes  is  to  permit  an  election 
between  a  recover\'  of  the  goods  or  their  value.  Fiebcr  v^Schrciada:,  221  Pa. 
152  (1908)  ;  Wcsfinyhousc  Co.jv.  Harris,  237  Pa.  203  (1912);  Bates  v.  Cap- 
ital S.  Banl^21  Idaho  141  ("1912)  ;  Kcrman  v.  Lccper,  172  Mo.  App.  286 
(1913).  The  Pennsylvania  Act  of  April  14,  1905,  P.  L.  163  permits  the  court 
to  order  the  property  impounded  in  the  custody  of  the  sheriff,  where  the 
defendant  gives  bond  and  the  plaintiff  shows  that  by  reason  of  tlie  special 
nature  of  the  property  damages  will  not  compensate  him. 


BROWDER  v.   PTIINNEY  243 


SECTION    2.     ABOLITION    AND    CONSOLIDATION    OF 
FORMS   OF   ACTIONS. 

New  York  Code  of  Civil  Procedure. 

Sec.  3339.  There  is  only  one  form  of  civil  action.  The  distinc- 
tion between  actions  at  law  and  suits  in  eqtiit}^,  and  the  forms  of 
those  actions  and  suits  have  been  abolished.*^ 


BROWDER  z:  PHINNEY. 

Supreme  Court  of  Wasiiinc-.ton,  1902. 

30  Wash.  74.^" 

Du.xDAR,  J. :  This  is  an  action  for  damages  for  wrongful  and 
forcible  eviction  from  leased  premises.  Plaintiffs  obtained  from  the 
defendant,  on  the  31st  day  of  August,  1899,  a  contract  or  lease  of 
two  store  rooms  in  Seattle,  described,  for  a  term  of  three  years, 
with  stipulated  rent,  which  contract  or  lease  was  signed  by  defend- 
ant, Nellie  Phmney,  through  her  agent,  Daniel  Jones,  and  delivered 
to  plaintiffs.  Plaintiffs  alleged  that  they  were  put  in  possession  of 
said  premises  by  defendant  on  October  i,  1899;  that  they  paid  rent 

"  The  California  Code  of  Civil  Procedure,  Sec.  307,  provides :  "There 
is  in  this  state  but  one  form  of  civil  action  for  the  enforcement  or  protection 
o£  private  rights  and  the  redress  or  prevention  of  private  wrongs."  The  vari- 
ous codes  of  the  other  states  follow,  in  the  main,  the  language  of  the  New 
York  or  California  Codes.  Burns'  Ann.  Stat.  Ind.  (1914)  §  249.  In  some 
states,  however,  for  example  Iowa,  while  the  forms  of  action  are  abolished, 
proceedings  may  be  of  two  kinds,  legal  and  equitable.  Code  of  Iowa  (1897) 
§§  3426,  3427.    See  generally  Pomeroy's  Code  Remedies   (4th  ed.)   p.  5. 

In  England,  the  Judicature  Act  of  1873,  §  100,  provides  :  "Action  shall 
mean  a  civil  proceeding  commenced  by  writ,  or  in  such  other  manner  as  may 
be  prescribed  by  rules  of  court ;  and  shall  not  include  a  criminal  proceeding 
by  the  Crown."  The  rules  of  the  Supreme  Court,  order  II,  rule  i.  provides: 
"Every  action  in  the  High  Court  shall  be  commenced  by  a  writ  of  summons, 
which  shall  be  endorsed  with  a  statement  of  the  nature  of  the  claim  made,  or 
of  the  relief  or  remedy  required  in  the  action."  Order  I,  rule  i,  provides 
that  proceedings  formerh-  commenced  in  the  common-law  courts  by  writ, 
in  the  court  of  chancery  by  bill  or  information,  in  the  court  of  admiralty  by 
a  cause  in  rent  or  in  personam,  or  in  the  probate  court  by  citation  shall  be 
instituted  in  the  High  Court  by  a  proceeding  to  be  called  an  action. 

In  Massachusetts,  there  are  three  divisions  of  personal  actions  (i)  con- 
tract, which  includes  assumpsit,  covenant  and  debt;  (2)  tort,  vvhich  includes 
trespass,  trespass  on  the  case,  trover  and  actions  for  penalties  ;  (3)  replevin. 
Revised  Laws  (1902)  ch.  173,  §  i.  No  equity  suit  is  to  be  defeated  because 
there  is  an  adequate  remedy  at  law  nor  shall  an  action  at  law  be  defeated  on 
the  ground  that  relief  should  be  sought  in  equity,  but  the  proceedings  shall 
be  amendable  before  final  judgment  or  decree.  See  Worthington  v.  U'aring, 
157  Mass.  421  (1892),  Revised  Laws  (1902),  ch.  159,  §  6. 

In  New  Jersey,  the  practice  act  of  1912  provides  :  "There  shall  be  but 
one  form  of  civil  action  in  the  courts  of  common  law,  which  shall  be  de- 
nominated an  'action  at  law,'  but  this  shall  not  apply  to  proceedings  upon 
prerogative  writs;  provided  that  subject  to  rules,  a  writ  of  mandamus  mav 
be  awarded  in  such  an  action.  Tlie  process  and  pleadings  in  all  actions  shall 
be  according  to  rules  of  court." 

"  Part  of  the  opinion  is  omitted. 


24-1  ACTION'S 

therefor  for  the  months  of  Oetobcr  and  November  of  said  year  to 
saiil  defendant,  and  saici  rent  was  acce])tcd  by  said  defendant;  in 
short,  that  tliey  were  incommoded  during  the  time  of  their  lease  by 
the  improvements  which  were  made  upon  the  premises  for  the  les- 
sors, and  were  finally,  on  the  12th  day  of  January,  1900,  forcibly 
evicted  from  the  premises  by  defendant.  At  the  opening  of  the 
trial,  defendant's  counsel  objected  to  the  introduction  of  any  testi- 
mony under  the  complaint,  for  the  reason  that  it  did  not  state  facts 
sufiicient  to  constitute  a  cause  of  action,  which  motion  was  denied. 
At  the  close  of  plaintiffs'  testimony  defendant  moved  for  a  nonsuit 
on  the  ground  that  the  instrument  sued  on  was  invalid,  and  that  the 
plaintiffs  had  not  shown  any  facts  to  take  it  out  of  the  statute  of 
frauds,"*'  and  for  the  further  reason  that  authority  in  the  agent  to 
execute  the  lease  was  not  shown.  This  motion  was  denied  by  the 
court.  Counsel  for  defendant  then  moved  the  court  to  instruct  the 
jury  to  return  a  verdict  for  defendant  on  the  ground  that  a  court  of 
law  has  no  power  to  entertain  this  suit.  This  motion  was  granted, 
and  the  case  dismissed,  the  court  taking  the  view  that  the  lease  was 
invalid  in  law  because  it  was  not  acknowledged,'*''  and  that  the  facts 
showing  part  performance  of  the  contract  could  be  enforced  in 
equity,  but  could  not  be  shown  in  an  action  at  law. 

We  think  the  court  erred  in  dismissing  the  action.  Whether  or 
not  the  contract  or  lease  was  originally  illegal,  it  is  not  necessary 
for  the  purpose  of  this  discussion  to  determine.  But  if  illegal,  a 
part  performance  of  the  contract,  either  by  the  jilaintiffs  taking 
possession  of  the  premises  under  the  lease  or  by  the  payment  and 
acceptance  of  rent  under  the  terms  of  the  lease,  would  render  the 
lessor  liable  for  damages  for  its  violation  by  him ;  and  the  court,  in 
holding  that  part  performance  could  not  be  shown  in  an  action  for 
damages,  lost  sight  of  the  rule  of  concurrent  jurisdiction  with  which 
courts  are  clothed,  especially  under  the  reformed  procedure.  Our 
statute  (Bal.  Code,  Sec.  4793)^''''  provides  that  there  shall  be  in  this 
state  but  one  form  of  action  for  the  enforcement  of  private  rights 
and  the  redress  of  private  wrongs,  which  shall  be  called  a  "civil 
action" ;  and  this  statute  evidently  means  something.  It  was  not 
intended  by  this  enactment  of  the  law-making  ])ower  to  leave  in 
force  or  to  perpetuate  the  old  distinctions  which  existed  at  the 
common  law  between  legal  actions  and  equitable  procedures,  so  far 
as  the  manner  of  bringing  the  actions  is  concerned.  It  was  plainly 
the  intention  thereby  to  abolish  such  distinctions,  and  to  substitute 
for  all  other  forms  of  complaint  a  statement  of  facts,  for  it  provides 
that  the  complaint  shall  contain  a  plain  and  concise  statement  of 
facts  constituting  the  cause  of  action,  and  this  plain  and  concise 
statement  of  facts  must  necessarily  be  the  same  (if  it  is  a  concise 
statement  of  facts)  whether  the  relief  or  remedy  sought  by  the 
action  be  equitable  or  legal  in  its  nature.  In  this  case,  if  the  plain- 
tiffs had  demanded  specific  performance,  the  statement  of  facts  on 


"Remin^'ton  &  Ballinser's  Code  (1909),  §  .=5289. 
"Remington  &  BallinRer's  Code  (1909),  §  8802. 
*' Remington  &  Ballinger's  Code  (1909;,  §  I53- 


BROWDER  V.   PHINNEY  245 

which  the  demand  would  have  been  based  would  have  been  iden- 
tically the  same  statement  as  that  upon  which  the  demand  made  was 
based.  It  is  not  in  accordance  with  the  spirit  of  the  code  to  turn  a 
litigant  out  of  court,  and  subject  him  to  the  costs  and  delays  of 
bringing  another  action  before  tlie  same  tribunal  on  the  same  plead- 
ings. If  there  could  be  any  doubt  as  to  the  meaning  of  the  statute 
in  this  respect,  it  is  set  at  rest  by  the  further  provision  that  the 
defendant  may  set  forth  by  answer  as  many  defenses  and  counter- 
claims as  he  has,  whether  they  be  such  as  have  heretofore  been 
denominated  legal  or  equitable,  or  both ;  for  it  can  not  be  presumed 
that  the  legislature  intended  to  make  provisions  for  the  determination 
in  one  action  of  legal  and  equitable  rights  alleged  in  an  answer,  and 
to  preclude  the  determination  in  the  same  action  of  legal  and  equit- 
able rights  alleged  in  the  complaint.  It  may  not  have  been  the  inten- 
tion of  the  legislature  to  abolish  all  the  distinctions  which  have  so 
long  existed  between  legal  and  equitable  proceedings  and  the  rules 
governing  them.  That  question  it  is  not  necessary  to  discuss  here. 
But  it  was  the  evident  intention  to  provide  for  the  trial  and  deter- 
mination of  all  rights,  v/hether  denominated  legal  or  equitable,  in 
one  action,  and  to  relieve  from  the  necessity  of  a  multiplicity  of 
suits  to  determine  controversies  between  litigants.  The  superior 
court  is  a  court  of  general  jurisdiction.  It  has  the  power  to 
try  either  legal  or  equitable  proceedings,  having  concurrent  juris- 
diction in  both.  It  is  not  a  law  court,  nor  an  equity  court,  nor  a 
probate  court,  but  it  is  all  the  time  the  superior  court  of  general 
jurisdiction,  empowered  to  try  all  these  differently  termed  causes 
tmder  the  title  of  a  civil  action;  and  when  it  has  once  acquired  juris- 
diction of  that  civil  action  it  may  proceed  in  an  orderly  way  to  deter- 
mine equitable,  legal,  or  probate  controversies. 

When  the  court,  which  has  jurisdiction  over  both  equitable  and 
law  proceedings,  discovered  in  the  complaint  the  statement  of  facts 
which  formed  the  basis  of  the  controversy  between  the  litigants, 
he  should  have  proceeded  to  settle  the  issues,  and  not  have  dis- 
missed the  plaintiffs  out  of  court  and  imposed  upon  them  the  delays, 
costs  and  annoyance  of  bringing  another  suit,  which  would  neces- 
sarily have  been  based  upon  the  same  statement  of  facts ;  for  at  all 
times,  if  the  plaintiffs  had  a  cause  of  action  at  all,  it  was  based  upon 
the  contract  or  lease,  coupled  with  the  part  performance  alleged. 
The  principle  evidently  sought  by  the  legislature  to  be  engrafted 
upon  our  procedure  is  intelligently  stated  by  Mr.  Pomeroy  in  his 
work  on  Equity  Jurisprudence  (2d  ed.).  Sec.  183,  where  it  is  said: 

"The  fundamental  principle  of  this  reformed  system  is,  that  all 
distinctions  between  legal  and  equitable  actions  are  abolished,  the 
one  'civil  action'  is  the  single  judicial  means  of  enforcing  all  rights 
in  a  court  clothed  with  both  jurisdictions  of  law  and  of  equity  in 
combination,  and  in  this  civil  action  legal  and  equitable  primary 
rights,  causes  of  action,  and  defenses,  may  be  united,  and  legal  and 
equitable  remedies  may  be  obtained.  In  applying  this  principle  the 
following  results  have  been  well  established :  Whenever  a  plaintiff 
is  clothed  with  primary  rights,  both  legal  and  equitable,  growing  out 
of  the  same  transaction  or  condition  of  facts  vv^hich  thus  constituted 


246  ACTION'S 

a  cause  of  acti(Mi,  ami  is  ciititleil  thereon  to  an  e(|uitahle  remedy, 
ami  also  to  a  further  legal  remedy  based  upon  the  su])i)osition  that 
the  ei|uitalile  relief  is  granted,  and  he  sets  forth  all  these  facts  in  his 
petition,  and  demands  a  judgment  awarding  both  si)ecies  of  relief, 
the  action  will  be  sustained;  the  court  will,  in  its  judgment,  form- 
ally grant  both  the  ei|uitable  and  the  legal  relief."'" 

And  again  in  Sec.  S/  : 

"Wherever  the  reformed  [)rocedure  has  been  administered  ac- 
cording to  its  plain  intent,  the  necessity  of  this  double  judicial  pro- 
ceedings has  been  obviated;  indeed,  if  the  true  spirit  of  the  new 
procedure  is  accepted  by  the  courts,  such  a  se])aration  of  equitable 
and  legal  rights  and  remedies,  and  their  ])rosecution  in  distinct 
actions,  will  not  perhaps  be  allowed.  The  ])laintifif  brings  one  civil 
action  in  which  he  alleges  all  the  facts  showing  himself  entitled  to 
both  the  equitable  and  the  legal  reliefs  needed  to  complete  his  legal 
right,  and  asks  and  obtains  a  double  judgment,  granting,  first,  the 
l>roper  equitable  remedy,  and  secondly,  the  legal  remedy,  by  which 
his  juridical  position  with  resi)ect  to  the  subject-matter  is  finally 
perfected." 

There  v^as  suflicient  testimony  in  the  case  for  the  consideration 
of  the  court  or  jury  on  the  question  of  agency  and  of  part  per- 
formance. 

The  judgment  will  be  reversed,  with  instructions  to  the  lower 
court  to  try  the  cause  and  determine  the  issues.'' 


*"  But  see  Disbrozv  v.  CnuDiicry  I'.  M.  Co.,  104  Minn.  17  (1908),  as  to  tlie 
necessity  for  adopting  a  theory  to  control  the  trial  of  the  case. 

^'  Where  the  plaintiff  proceeds  on  tlie  theory  that  his  remedy  is  by  a  suit 
in  equity,  but  his  complaint  fails  to  state  facts  sufficient  to  entitle  him  to 
equitable  relief,  but  does  state  facts  sufficient  to  entitle  him  to  a  money  judg- 
ment, he  will  not  be  dismissed  from  court,  but  will  be  given  the  relief  to  which 
lie  appears  entitled.  Donovan  v.  McDciitt,  36  Mont.  61  (1907);  Madden  v. 
McKcnzic,  144  Fed.  64  (1906).  Compare  Barnes  v.  Quicjlcy,  59  N.  Y.  265 
(1874)  ;  Moore  v.  Coyne,  113  App.  Div.  N.  Y.  52  (1906).  So,  also,  where  in 
an  action  based  on  legal  rights  it  becomes  necessary  to  administer  equitable 
relief,  that  relief  is  to  be  afforded.  Trost  v.  Davis,  31  Ind.  34  (1869)  ;  Hall 
V.  Sugo,  169  N.  Y.  109  (1901);  Madden  v.  McKenzie,  144  Fed.  64  (1906). 
See,  also,  Wright  v.  Wright,  40  N.  Y.  437  (1873)  I  Akin  v.  Davis,  11  Kans. 
580  (1873);  //«/'  V.  Guilford  County,  74  N.  Car.  130  (1876);  De  Lacy  v. 
Hurst,  83  Ga.  223  (1889);  Whitehead  v.  Szveet,  126  Cal.  67,  58  Pac.  376 
(1899)  ;  Todd  V.  Bettingen,  98  Minn.  170  (1906)  ;  Kazeheer  v.  Nunemaker,  82 
Xebr.  732  (ux>8).  The  federal  courts  preserve  the  distinction  between  actions 
at  law  and  suits  in  equity.  Armstrong  Cork  Co.  v.  Merchants  R.  Co.,  184  Fed. 
199  (1910).  By  act  of  congTess  March  3,  1913,  equitable  defenses  may  be 
given  at  law. 

The  abolition  of  forms  of  action  docs  not,  however,  alter  the  sub- 
stantive rights  of  the  parties.  The  principles  of  law  and  equity  remain  un- 
altered. De  Witt  v.  Haxs,  2  Cal.  463  (1852)  ;  Smith  v.  Rowc,  4  Cal.  6  (1853)  ; 
Renbcns  v.  Joel,  13  N.  Y.  488  (1836)  ;  Cole  v.  Reynolds,  18  N.  Y.  74  (1858)  ; 
Wilson  V.  Green,  135  N.  Car.  343  (1904).  If  a  legal  cause  of  action  is  dis- 
closed, legal  principles  apply;  if  purely  equitable,  e(iuitable  principles  apply 
and  will  control  the  case.  Stevens  v.  Neze  York,  84  N.  Y.  296  (1881)  ;  Merrill 
V.  Dearing,  47  Minn.  137  (1891)  ;  Titzsimons  v.  Drought,  16  App.  Div.  (N.  Y.) 
454  (1897)  ;  limmons  v.  Kiger,  23  Ind.  483  (1864)  ;  Cadell  v.  Allen,  99  N.  Car. 
542  (1888)  ;  Loeh  v.  Supreme  Lodge,  198  N.  Y.  181  (1910)  ;  Niehatis  v.  Nic- 
haus,  12^  N.  Y.  S.  1071  (1910)  ;  Southern  R.  Co.  v.  Hon-ell,  89  S  Car.  391 
(1911).    In   Britain  v.   Rossiter,  L.   R.    (1879),   11   Q.   B.   Div.   123,   it  is  said 


ROGERS  V.   DUHART  247 

JOSEPH  ROGERS  v.  JEAN  DUHART. 

Supreme  Court  of  California,  1893. 

97  Cal.  500. 

Appeal  from  a  judgment  of  the  Superior  Court  of  Los  Angeles 
In  favor  of  the  plaintiff. 

The  complaint  averred  that  the  executors  of  Miguel  Leonis  let 
and  demised  to  the  plaintiif  certain  lands  for  the  term  of  eight 
months  beginning  February  i,  1891,  and  thereupon  plaintiff  took 
possession,  that  defendant  entered  on  plaintiff's  said  described 
property  with  cattle  and  sheep,  depastured  and  destroyed  the  grass 
and  remained  until  April  17,  1891.  The  facts,  which  were  not  dis- 
puted, showed  that  defendant  had  been  pasturing  cattle  on  the  land, 
but  was  notified  by  the  executors  to  remove  them  by  December  31, 
1890;  that  defendant  without  the  knowledge  of  the  executors  or  the 
plaintiff  kept  his  cattle  on  the  land  until  April  17,  1891 ;  that  the 
land  was  unenclosed  and  neither  the  plaintiff  nor  any  one  on  his 
behalf  took  possession  until  April  12,  1891,  and  that  plaintiff  had 
been  damaged  in  the  sum  of  $900.'*'^ 

Patterson,  J. :  The  briefs  are  devoted  chiefly  to  a  discussion  of 
the  question  whether  an  action  trespass  quare  clausum  fregit  can  be 
maintained  by  one  who  was  not  in  the  actual  possession  of  the  land 
at  the  time  the  acts  complained  of  were  performed.  The  respondent 
refers  to  cases  showing  that  actual  possession  is  not  in  all  cases 
essential,  and  the  appellant  insists  that  the  exceptions  are  confined 
to  cases  in  which  the  plaintiffs  were  the  owners — where  the  title 
draws  to  it  the  possession  for  the  purpose  of  redressing  injuries  to 
the  estate. 

It  would  be  a  useless  thing  to  attempt  to  reconcile  the  cases  on 
the  subject.  Decisions  adhering  to  the  common-law  rules  of  plead- 
ing are  seldom  of  any  value  in  determining  the  sufficiency  of  a  plead- 
ing under  the  code,  and  sometimes  lead  to  serious  departures  from 
its  letter  and  spirit.  With  us,  mere  forms  of  action  are  cast  aside. 
I'Lvery  action  is  now,  in  effect,  a  special  action  on  the  case.  (Jones 
v.  Steamer  Cortes,  ly  Cal.  487,  79  Am.  Dec.  142;  Goulet  v.  Asseler, 
22  N.  Y.  225;  Mattheivs  v.  McPlierson,  65  N.  Car.  189;  Brown  v. 
Bridges,  31  Iowa  145.)  And  the  rigid  formalism  and  subtle  distinc- 
tions found  in  the  rules  governing  the  common-law  forms  of  action 
are  as  inapplicable  and  inane  under  the  modern  plan  of  procedure  as 
the  highly  dramatic  speech,  senseless  repetitions,  and  smybolic  ges- 
tures of  the  formulae  prescribed  for  the  five  forms  of  civil  actions 
by  the  decemvirs  of  ancient  Rome. 


by  Lord  Esher  at  page  129:  "I  think  that  the  true  construction  of  the  Judi- 
cature Acts  is  that  they  confer  no  new  rights;  they  only  confirm  the  rights 
which  previously  were  to  be  found  existing  in  the  courts  of  law  or  in  equity; 
if  they  did  more,  they  would  #ilter  the  rights  of  parties,  wliereas,  in  truth, 
thev  only  change  the  procedure." 

'  *"  The  facts  are  abridged  from  the  opinion  of  the  court,  a  part  only  ot 
which  is  printed. 


248  ACTIDNS 

Does  the  complaint  state  in  ordinary  and  concise  lan}:^ua!^e  facts 
sutVicient  to  constitute  a  cause  of  action?  That  is  the  question,  and 
not  whether  it  is  sutlicient  to  show  trespass  qiiarc  clausitin,  tres- 
pass •;•/  ct  arniis,  or  any  other  technical  form  of  action,  ex  delicto 
or  i\v  contractu. 

The  common-law  rule  is,  that  if  plaintiiY  declares  in  trespass 
ijuorc  clausuin,  where  the  action  should  be  case,  he  will  be  non- 
suited at  the  trial;  but  under  our  system,  if  the  facts  alleged  and 
proved  are  such  as  would  have  entitled  the  plaintiff  to  relief  under 
any  of  the  recognized  forms  of  action  at  common  law,  they  are 
sufficient  as  the  basis  .of  relief,  whatever  it  may  be. 

The  bill  of  exceptions  herein  states  facts  which  would  entitle 
plaintiff  to  relief  in  an  action  on  the  case,  which  includes  torts  not 
committed  with  force  actual  or  implied,  injuries  committed  to  prop- 
erty of  which  plaintiff"  has  the  reversion  only,  and,  in  fact,  all 
injuries  not  provided  for  in  other  forms  of  action.  The  fact  that 
the  plaintiff"  alleges  he  was  in  possession  is  immaterial.  The  allega- 
tion may  be  treated  as  surj"»lusage.  "Supertluity  does  not  vitiate." 
"The  nature  of  the  right  of  action  has  not  been  changed,  nor  has 
the  amount  of  damages  recoverable  been  aff"ected,  but  the  special 
and  technical  rules  which  govern  the  use  of  the  two  common-law 
actions  mentioned  ('trespass'  and  'case')  have  certainly  been  abro- 
gated." (Pomeroy's  Remedies  and  Remedical  Rights,  Sec.  232.) 
The  damages  recoverable  in  the  common-law  action  of  trespass 
qiiare  clausum  are  for  the  wrong  done  to  the  plaintiff"'s  possession, 
as  well  as  to  the  inheritance,  and  where  the  entry  is  with  actual 
force,  treble  damages  are  frequently  allowed.  A\'hile  the  plaintiff"  is 
not  permitted  to  recover  such  damages  under  the  facts  proved  in 
the  case,  he  is  certainly  entitled  to  recover  such  damages  as  would 
have  been  recoverable  if  the  action  were  the  common-law  "action 
of  case."  To  hold  that  the  plaintiff  could  not  recover  would  be  to 
restore  tlie  old  distinctions  between  these  technical  actions.*'' 

Judgment  affirmed. 


POSTAL  f.  COHX. 

Supreme  Court  of  New  York,  Appellate  Division,  1903. 

d>i  Afp.  Div.  (;V.  Y.)  27. 

Woodward,  J. :  The  return  certifies  that  the  pleadings  in  this 
action  were  oral;  that  the  complaint  was  "for  deceit  and  fraud  in 
tlie  sale  of  a  horse" ;  that  the  answer  was  a  general  denial  and  coun- 
terclaim, and  that  both  parties  demanded  bills  of  particulars.    The 


"See  also,  Reed  v.  Scott,  30  Ala.  640  (1837)  ;  Wilson  v.  Ryholt,  17  Ind. 
391,  79  Am.  Dec.  486  (1861)  ;  Huffman  v.  I^arsons,  21  Kans.  467  (1879); 
HazL'kins  v.  Ovcrstrcet,  7  Okla.  277,  54  Pac.  472  (1898)  ;  Dnnnctt  v.  Thornton, 
73  Conn.  I,  46  At).  158  (1900);  Brunhcim  v.  Stratton,  145  Wis.  271  (1911). 
Compare  Hill  v.  Barrett,  14  B.  Men.  (Kv.)  Si  (1853). 


POSTAL  V.  COHN  249 

record  on  appeal  also  contains  a  written  complaint  setting  forth  all 
the  elements  of  a  cause  of  action  for  fraud,  and  a  bill  of  particulars 
tiled  by  the  plaintiff  restating  in  substance  the  facts  alleged  in  the 
complaint.  The  court  charged  the  jury  that  if  they  believe  no  fraud 
was  committed  there  could  be  no  recovery  by  the  plaintiff,  and  a 
verdict  was  rendered  for  the  plaintiff  upon  evidence  affording  no 
proof  of  the  essential  element  of  scienter.  (2  Kent's  Comm.  [13th 
ed.]  ^482,  *489;  Atwood  v.  Small,  6  CI.  &  Fin.  444;  Oberlander  v. 
Spiess,  45  N.  Y.  175.)  The  only  evidence  tending  to  prove  that  the 
defendants  had  knowledge  of  the  alleged  unsoundness  of  the  horse 
was  to  the  effect  that  on  the  day  of  the  delivery  to  the  plaintiff  the 
horse  was  seen  "wringing  wet"  while  in  the  defendants'  possession. 
There  is  no  evidence  that  this  condition  had  continued  for  any 
length  of  time  or  that  it  had  been  noted  on  any  previous  occasion. 
The  defendants,  in  explanation,  say  the  horse  was  "soft."  This  evi- 
dence was,  we  think,  wholly  insufficient  as  proof  of  scienter.  "A 
party,  therefore,  relying  upon  the  establishment  of  a  cause  of 
action  or  a  right  to  a  remedy  against  another,  based  upon  the  alleged 
com.mission  of  a  fraud  by  such  person,  must  show  affirmatively 
facts  and  circumstances  necessarily  tending  to  establish  a  proba- 
bility of  guilt  in  order  to  maintain  his  claim.  When  the  evidence  is 
capable  of  an  interpretation  which  makes  it  equally  as  consistent 
with  the  innocence  of  the  accused  party  as  with  that  of  his  guilt, 
the  meaning  must  be  ascribed  to  it  which  accords  with  his  innocence 
rather  than  that  which  imputes  to  him  a  criminal  intent."  (Morris 
v.  Talcott,  96  N.  Y.  100,  107.)  It  does  not  appear  that  the  tort  was 
at  any  time  waived,  and  the  authorities  in  this  state  do  not  allow 
this  complaint  to  be  considered  as  setting  forth  a  cause  of  action  for 
breach  of  warranty.  "Where  fraud  is  alleged  as  the  basis  of  the 
act^ion  it  must  be  proved.  The  law  will  not  permit  a  recovery  by 
proof  of  a  right  of  action  upon  contract  or  of  some  other  character, 
and  this  though  facts  may  be  stated  or  may  appear  which  in  proper 
form  might  sustain  such  an  action."  (Truesdell  v.  Bourke,  145 
N.  Y.  612,  617.)  The  same  rule  is  declared  in  Degraw  v.  Elmore 
(50  N.  Y.  i)  ;  Ross  v.  Mather  (51  N.  Y.  108)  ;  Barnes  v.  Qiiigley 
(59  N.  Y.  265)  ;  Salisbury  v.  Howe  (87  X.  Y.  128).  Conaughty  v. 
Nichols  (42  N.  Y.  83)  is  not  out  of  harmony  with  these  views.^° 
As  was  pointed  out  in  Greentree  v.  Rosenstock  (61  N.  Y.  583),  that 
case  maintains  only  that  an  action  upon  contract  does  not  cease  to  be 
such  because  the  pleading  contains  an  incorrect  conclusion  of  law, 
having  the  aspect  of  a  tort.  For  the  same  reason  Town  of  Green 
Island  v.  Williams  (79  App.  Div.  260)  does  not  aid  the  plaintiff. 
The  case  at  bar  is  in  all  material  respects  similar  to  Ross  v.  Mather 
{supra).  In  that  case  the  plaintiff  had  judgment  in  an  action  to 
recover  damages  upon  the  sale  of  a  horse.   The  complaint  contained 


^  In  the  case  referred  to  the  action  was  brought  against  the  defendants 
as  factors  to  recover  the  proceeds  of  merchandise  consigned  for  sale.  The 
complaint  contained  an  averment  that  defendants  had  "converted"  the  sum 
due.  The  plaintiff  having  established  a  cause  of  action  in  contract  merely, 
the  referee  refuse  to  allow  an  amendment  and  entered  a  nonsuit.  Judg- 
ment was  reversed. 


J5<>  ACTIONS 

all  the  clcnienls  of  a  caiiso  of  action  for  fraud;  not  as  averments 
of  conclusions  of  law.  but,  as  in  the  case  here  under  review,  state- 
ments of  si>ecitk  facts.  Only  a  cause  of  action  for  breach  of  war- 
rantv  was  jiroved.  In  reversing  the  judgment  of  the  general  term, 
entered  upon  an  order  denying  defendant's  motion  for  a  new  trial 
and  directing  iudgment  upon  the  verdict,  the  Court  of  Appeals  said: 
"The  code  never  intended  that  a  i>arty  who  had  failed  in  the  i)er- 
formance  of  a  contract  merely,  should  he  sued  for  a  fraud,  or  that 
a  partv  who  had  committed  a  fraud  should  he  sued  for  a  breach  of 
contract,  unless  the  fraud  was  intended  to  be  waived.  The  two 
causes  of  action  are  entirely  distinct,  and  there  can  be  no  recovery 
as  for  a  breach  of  contract,  where  a  fraud  is  the  basis  of  the  com- 
plaint." 

Section  \oy  of  the  Municii)al  Court  Act  (Laws  of  1902.  ch. 
580)  requiring  that  the  allegations  of  a  ])leading  must  be  liberally 
construed,  does  not  contem])late  such  looseness  of  construction  as 
would  be  necessary  to  take  this  case  out  of  the  condemnation  of  the 
rule  of  these  decisions.  There  was  rather  an  entire  failure  of  proof 
of  the  cause  of  action  alleged  within  the  meaning  of  section  173  of 
that  act. 

We  think  the  judgment  should  be  reversed.'^ 


HARTFORD  r.  SMITH. 

United  Statks  Circuit  Court  of  Apprals,  Third  Circuit.  1912. 

199  Fed.  763. 

In  error  to  the  District  Court  of  the  United  States  for  the 
Western  District  of  Pennsylvania;  James  S.  Young,  Judge. 

Action  by  P.  C.  Hartford  against  Roland  H.  Smith  and  another, 
doing  business  as  A.  J.  Davis  &  Co.  Judgment  for  defendants,  and 
plaintiff  brings  error.    Affirmed  on  condition. 

J.  B.  Mcl'iiF.KSON,  Circuit  Judge;  The  Pennsylvania  act  of  1887 
(P.  L.  271  ;  3  Pepj).  &  Lew.  Dig.  Laws,  5819,  5825)  undertakes  to 
abolish  the  distinctions  theretofore  existing  between  actions  ex 
contractu  and  actions  ex  delicto,  but  only  so  far  as  related  to  pro- 


" Accord:  Bermel  v.  Haniischfeger,  97  APP-  I^'v-  N.  Y.  402  (1904). 
Compare  Tyndall  v.  Bcatty,  57  Misc.  (N.  Y.)  646  (1908). 

AltliouRli  the  distinctions  in  the  forms  of  actions  ex  contractu  and  ex 
delicto  are  abolished  and  one  form  of  action  substituted,  it  is  generally  said 
that  the  principles  of  law  which  govern  remain  unchanged.  Lubert  v.  Chanvi- 
tcaii.  3  Cal.  458  (1833)  ;  Sampson  v.  Sitae ffer,  3  Cal.  196  (1853)  ;  Anderson 
V.  Case,  28  Wis.  506  (1871)  ;  Pierce  v.  Carey,  37  Wis.  232  (1873)  ;  Minneap- 
olis H.  IV.  V.  Smith,  30  Minn.  399  (1883);  Hozi-ard  v.  Gunnison,  12  Ohio 
Dec.  684  (1902)  ;  Jones  v.  Winsor,  22  S.  Dak.  480  (1908)  ;  Norton  v.  Reed. 
253  Mo.  236  (1913);  ll'elcli  V.  Seattle  &  M.  R.  Co.,  56  Wash.  97  (1909); 
Maronen  v.  Anaconda  C.  Co.,  48  Mont.  249  (1913)  ;  Cullen  v.  Dickenson,  t,t, 
S.  Dak.  27  (1913).  The  distinction  between  real  and  personal  actions  is  not 
so  abolished  as  to  permit  the  title  to  real  property  to  be  determined  in  replevin. 
Ricketts  V.  Barrel,  53  'nd.  470  (1876). 


HARTFORD  t'.  SMITH  25  I 

cedure.  Sections  i  and  2  put  this  restriction  affirmatively'*- — "so 
far  as  relates  to  procedure" — while  section  8  with  greater  emphasis 
puts  it  negatively  as  well  as  aflirmatively : 

"The  true  intent  and  meaning  of  this  act  is  that  *  *  *  as  toJ 
the  action  (evidently  actions)  herein  recited,  it  applies  to  the  pro  J 
cedure  only,  and  the  legal  rights  of  the  party  are  not  in  any  way  to' 
be  affected  thereby." 

As  a  contribution  to  the  history  of  the  act,  the  writer  of  this 
opinion  may  state  of  his  own  knowledge  that  a  draft  of  the  statute 
was  submitted  to  the  late  Judge  Simonton,  of  Dauphin  County,  for 
consideration  and  criticism,  and  that  the  sentence  just  quoted  from 
section  8  was  inserted  at  his  suggestion,  in  order  that  no  doubt 
might  exist  about  the  limited  scope  of  the  legislation^  And  the 
appellate  courts  of  Pennsylvania  have  taken  this  view  in  several 
cases.  FrLL:.x^^ath(nuav^_jj^^_9.Rn,  19  Atl.  loii;  Wmkleblake_ 
y^_Jjm^y±e^_j^i_]^^y^28  Atl.  937  (a  decision  concurred  in  by 
Justice  Williams  of  Tioga  County,  who  has  always  been  under- 
stood to  be  the  draftsman  of  the  act)  ;  and  Busch  v.  Calhoun,  14  Pa. 
Super.  Ct.  582.  The  mere  label  of  the  actionTrnoFdecisiverArvvas 
said  byjustice  Mitchell  in  Fritz  \.  Hathaway : 

"Accurracy  and  technical  precision  have  no  terrors,  except  for 
the  careless  and  the  incompetent;  and  the  act  of  1887  was  not  in- 
tended to  do  away  with  them.  As  to  all  matters  of  substance,  com- 
l)leteness,  accuracy  and  precision  are  as  necessary  now  to  a  state- 
ment as  they  were  before  to  a  declaration  in  the  settled  and  time- 
honored  forms." 

See  also,  Osboni  v.  Bank,  154  Pa.  137,  26  Atl.  289;  Corrv  v. 
Railroad,  194  Pa.  219,  45  Atl.  341,  and  Brandmeier  v.  Pond  Creek 
Co.,  22g  Pa.  284,  78  Atl.  273. 

It  is  clear,  therefore,  that,  although  the  name  of  the  action  now 
before  us  is  "trespass,"  the  legal  rights  of  the  parties  are  to  be  de- 
termined as  if  it  were  the  old  action  of  trover  and  conversion.  In- 
deed, this  is  conceded,  and  we  may  turn  at  once  to  the  statement  of 
claim  in  order  to  discover  what  particular  wrong  is  complained  of. 
The  statement  is  not  ambiguous.  It  recites  that  the  defendants  were 
stock-brokers;  that  the  plaintiff  gave  them  certain  orders  to  buy 
stocks  on  a  margin ;  that  he  put  up  whatever  margin  was  demanded, 
this  being  always  sufficient  to  protect  them ;  that  he  was  not  notified 
that  the  shares  would  be  sold,  and  gave  no  order  to  sell ;  and  that 
the  sale  produced  a  balance  in  his  favor  of  $5,527.71,  "which  it  was 
the  duty  of  defendants,  as  plaintiff's  brokers,  so  as  aforesaid  to 
immediately  pay  over  to  j)]aintiff  upon  or  without  demand."  The 
statement  continues : 

"The  sections  of  the  act  of  1887  referred  to  are  as  follows:  "So  far  as 
relates  to  procedure,  the  distinctions  heretofore  existing  between  actions  ex 
contractu  be  abolished,  and  that  all  demands,  heretofore  recoverable  in  debt, 
assumpsit  or  covenant,  shall  hereafter  be  sued  for  and  recovered  in  one  forrri 
of  action  to  be  called  an  "action  of  assumpsit."  §  i.  So  far  as  relates  to  pro- 
cedure, the  distinctions  heretofore  existing  between  actions  ex  delicto  be 
abolished,  and  that  all  damages,  heretofore  recoverable  in  trespass,  trover, 
or  trespass  on  the  case,  shall  hereafter  be  sued  for  and  recovered  in  one 
form  of  action  to  be  called  an  "action  of  trespass."   §  2. 


252  ACTIONS 

"Plaintiff  further  says  that  defendants  wholly  disregarded  their 
duties  to  him.  as  hereinbefore  mentioned,  to  keep  and  maintain  the 
proceeds  of  the  sale  of  said  stocks  and  the  margins  deposited  witli 
them  by  plaintiff"  as  a  fund  solely  and  entirely  applicable  for  the 
purpose  of  carrying  out  these  particular  transactions,  but  did,  with 
intent  to  defraud  plaintiff,  convert  and  ai)iM-opriate  said  fund  to 
their  own  use,  or  the  use  of  some  other  i)erson  or  persons,  and  that 
on  November  12,  1909,  and  continuing  from  that  time  until  the 
present,  defendants,  with  intent  to  defraud  plaintiff,  neglected, 
failed  and  refused  to  deliver  or  pay  over  to  plaintiff  the  balance 
of  said  fund  amounting  as  above  mentioned,  to  wit,  $5,527.71, 
which  sum  defendants  have  illegally,  unlawfully,  and  fraudulently 
misappropriated  and  converted  to  their  own  use,  or  to  the  use  of 
some  other  person  or  persons." 

The  action  is  trover  for  the  conversion  of  money,  although  the 
plaintiff  in  error  desires  to  treat  it  as  an  action  for  the  conversion 
of  the  stocks.  The  learned  judge  held  that  in  its  present  form  it 
could  not  be  maintained,  and  we  agree  with  this  conclusion.  It 
should  have  been  assumpsit,  and  if  the  suit  had  been  dismissed  for 
this  reason,  without  prejudice  to  the  plaintift''s  right  to  bring  tlie 
proper  action,  we  might  affirm  the  judgment  at  once.  It  is  easy  to 
understand  why  the  action  was  brought  in  tort.  Under  the  Pennsyl- 
vania practice  some  kinds  of  tort  may  still  be  redressed  in  a  suit 
begun  by  a  capias  ad  respondendum,  which  requires  the  entry  of 
bail  to  the  action.  This  suit  was  so  begun,  and,  as  a  judgment  for 
the  plaintiff  would  also  have  supported  a  capias  ad  satisfaciendum, 
the  defendants  might  have  been  committed  to  prison,  until  dis- 
charged according  to  law.  But  no  such  result  would  follow  a  re- 
covery in  assumpsit,  and,  as  already  stated,  the  suit  should  have  been 
in  that  form  of  action.  So  far  as  appears  from  the  uncontradicted 
evidence,  the  defendants  were  under  no  obligation  to  return  specific 
money  to  the  plaintiff,  but  owed  him  a  duty  that  might  be  dis- 
charged by  the  payment  of  money  generally.  See  Little  v.  Gihbs, 
4  N.  J.  L.  211 ;  Davisx.  Thompson,  io_S.ad.  (Pa.)  563,  14  Atl.  169; 
Aurentsj.'.  Portejr.  56  Pa.  iiq;  Life  Ass'n  v.  Catlin  2  Walk.  (Pa.) 
33S7^8Q'c.  2014,  H,  note  53 ;  A.  &  E.  Encyc.  of  Law  (2d  ed.) 
652,  §  5,  note  7. 

The  practical  reason  against  affirming  the  judgment  as  it  stands 
is  this:  It  is  not  a  mere  dismissal  of  the  suit  without  prejudice,  but 
a  judgment  in  favor  of  the  defendants,  and  with  the  present  record 
the  doctrine  of  res  judicata  might  give  the  plaintiff  trouble  if  he 
brought  another  suit.  This  would  be  unjust,  for  the  defendants  con- 
cede that  they  owe  the  money,  and  are  only  defending  against  the 
drastic  remedy  that  has  been  invoked.  Indeed,  they  offered  the 
plaintiff  a  note  for  the  full  amount  of  his  claim,  although  the  note 
was  afterwards  returned.  In  order,  therefore,  that  tlie  litigation 
may  perhaps  end  here,  w^e  shall  enter  no  judgment  for  the  present; 
but  we  direct  the  clerk  of  this  court  to  notify  counsel  that,  if  the 
defendants  shall  confess  judgment  to  the  plaintiff  on  or  before 
November  30,  1912,  in  an  action  ex  contractu  for  $5,527.71,  with 
interest  from  November  12,  1909,  and  if  the  district  court  shall  cer- 


PEOPLE  EX  REL.  V.   IIEALY  253 

tify  US  that  this  has  been  done,  we  will  then  affirm  the  judgment. 
Otherwise,  we  shall  be  obliged  to  reverse  it  formally,  with  leave  to 
the  plaintiff  to  apply  to  the  district  court  for  permission  to  change 
the  form  of  action  under  the  Pennsylvania  statute  of  1871  (P.  L. 
265;  3  Pepper  &  Lewis'  Digest  Laws,  col.  5894).  The  act  reads  as 
follows : 

"In  all  actions  pending  or  hereafter  to  be  brought  in  the  several 
courts  of  this  commonwealth,  said  courts  shall  have  power  at  any 
stage  of  the  proceedings  to  permit  an  amendment  or  change  in  the 
form  of  action  if  the  same  shall  be  necessary  for  a  proper  decision 
of  tlie  cause  upon  its  merits,"  etc. 
— and  seems  to  provide  a  remedy  for  the  existing  situation." 


SECTION  3.     PUBLIC  CIVIL  ACTIONS.  =* 
(a)  Quo  Warranto. 

THE  PEOPLE  ex  rel  RASTER  v.  HEALY.  ^ 

Supreme  Court  of  Illinois,  1907. 
230  ///.  280. 

E.  O.  Raster  filed  in  the  Circuit  Court  of  Cook  County  a  petition 
for  a  mandamus  against  J.  J.  Healy,  state's  attorney  for  that  county, 
commanding  him  to  sign  a  petition  for  leave  to  file  an  information 
in  the  nature  of  a  quo  warranto  against  one  H.  L.  Brand  charged 
with  having  usurped  the  office  of  treasurer  of  tlie  Illinois  Publish- 
ingjCompany,  an  Illinois  c<)r[)()ralion.     It  appeared  from  relator's 
allTdavit  attached  to  the  petition  for  leave  to  file  the  information  that 
Raster  was  secretary  of  that  company  and  a  director;  that  the  board 
of  directors  consisted  of  ten  persons ;  that  by  the  by-laws  a  majority 
of  the  board  was  required  to  constittite  a  quorum,  that  Brand  had  ) 
been  elected  at  a  meeting  held  by  five  directors  only  and  had  never  \ 
been  properly  and  legally  elected  as  trasurer,  but  had  intruded  into  / 
and  unlawfully  held  the  office.    To  Jhe  petition  for  a  mandamus  V 
Healy  demurred.    The  demurrer  was  sustained  by  the  circuit  court 
and  the  petition  dismisledr"  Raster  appealed. •^'^ 

Scott,  J. :  This  controversy  involved  the  construction  of  sec- 
tion I  of  chapter  112,  Hurd's  Revised  Statutes  of  1905,  which  reads: 
"That  in  case  any  person  shall  usurp,  intrude  into,  or  unlawfully 
hold  or  execute  any  office  or  franchise,  or  any  office  in  any  corpora- 
tion created  by  authority  of  this  state  (or  any  person  shall  hold  or 
claim  to  hold  or  exercise  any  privilege,  exemption  or  license,  which 


"See  also,  Duff  eld  v^Rcwm^g,  144  Pa.  520,  23  Atl.  4  (i8gi)  ;  Miller  y. 
Lehigh  Co.,  181  Pa.  6J2,  :^j  Atl.  824  (1897)  ;  Raymond  Syndicate  v.  Uiittcn^ 
tag,  177  MassTsSJ  (igoi)  ;  Pratt  v.  Davis,  118  III.  App.  161   (1905). 

'"*  See  generally  High's  Extraordinary  Legal  Remedies. 

"  The  arguments  of  counsel  and  part  of  the  opinion  of  the  court  are 
omitted. 


254  ACTIONS 

has  heoii  ini|)rnpcrly  or  witliout  warrant  of  law  issued  or  granted 
by  any  olTicor.  hoanl,  commissioner,  court,  or  other  person  or  per- 
sons authorized  ov  empowered  by  law  to  grant  or  issue  such  ])riv- 
ilege.  exemption  or  license),  or  any  iniblic  ollicer,  shall  have  done, 
or  sutTered  any  act  which,  by  the  provisions  of  law,  works  a  for- 
feiture of  his  office,  or  any  association  or  number  of  persons  shall 
act  within  this  State  as  a  corporation  w  ithoul  being  legally  incorpo- 
rated, or  any  corporation  does  or  omits  any  act  which  amounts  to  a 
surrender  or  forfeiture  of  its  rights  and  privileges  as  a  corporation, 
or  exercises  powers  not  conferred  by  law,  or  if  any  railroad  com- 
pany doing  business  in  this  state  shall  charge  an  extortionate  rate  for 
the  transix>rtation  of  any  freight  or  passenger,  or  shall  make  any- 
unjust  discrimination  in  the  rate  of  freight  or  passenger  tariff  over 
or  upon  its  railroad,  the  attorney-general  or  state's  attorney  of  the 
]iroper  county,  either  of  his  own  accord  or  at  the  instance  of  any 
individual  relator,  may  present  a  petition  to  any  court  of  record  of 
competent  jurisdiction,  or  any  judge  thereof  in  vacation,  for  leave 
to  file  an  information  in  the  nature  of  a  quo  warranto  ,ir;i  t^|he  Jiame 
ot  the  peoi2.1o  "f  ilic  ^\;<Ar  <<''  Illinois,  and  if  such  court  or  judge  shall 
te  satisfied  thai  ilurc  is  niobable  ground  for  the  proceeding,  th.e 
court  or  judge  may  grant  the  petition,  and  order  the  information  to 
be  filed  and  process  to  issue.  When  it  appears  to  the  court  or  judges 
that  the  several  rights  of  divers  parties  to  the  same  office  or  fran- 
chise, privilege,  exemption  or  license,  may  properly  be  determined 
on  one  information,  the  court  or  judge  may  give  leave  to  join  all 
of  such  persons  in  the  same  information,  in  order  to  try  their  re- 
spective rights  to  such  office,  franchise,  i)rivilcge,  exem[)tion  or 
license." 

It  is  contended  by  the  ai>pellee  that  this  statute  vests  the  state's 
attorney  of  the  proper  county  with  an  arbitrary  discretion  in  refer- 
ence to  seeking  leave  to  file  an  information  in  the  nature  of  a  quo 
V warranto  in  the  name  of  the  people;  that  in  the  exercise  of  that  dis- 
(cretion  he  can  not  be  controlled  by  the  courts,  and  that  he  may 
/refuse  to  seek  the  leave  for  any  reason  which  to  him  seems  suffi- 
/cient  or  may  refuse  when  no  reason  at  all  can  be  assigned  for  so 
'  doing;  while  apj)ellant  argues  that  in  a  case  such  as  that  now  be- 
fore us,  where  the  proposed  individual  relator  has  a  personal  and 
private  interest  in  the  litigation  w^iich  he  desires  to  set  on  foot  and 
where  the  interest  of  the  public  is  purely  or  largely  theoretical,  the 
only  discretion  vested  in  the  legal  representative  of  the  people  is  a 
discretion  to  determine  wdiether  the  documents  presented  to  him  by 
the  individual  are  in  proper  legal  form,  and  whether  the  party  seek- 
ing the  institution  of  the  suit  presents  evidence  of  such   facts  as 
establish  his  legal  right  to  the  remedy  to  be  afforded  by  judgment 
against  the  respondent  in  the  quo  warranto  proceeding. 

Originally  a  proceeding  of  this  character  was  by  writ  of  quo 
warranto  against  any  one  who  claimed  or  usurped  any  office,  fran- 
chise or  liberty,  to  inquire  by  what  authority  he  supported  his  claim, 
in  order  to  determine  the  right.  Later  the  practice  was  changed  and 
an  information  in  the  nature  of  a  writ  of  quo  warranto  succeeded 


PEOPLE  EX  REL.  V.    HEALY  255 

the  former  method.  (3  Blackstone's  Com.  262,  263.)  By  the  com- 
mon law  the  proceeding  in  quo  warranto  was  employed  exclusively 
as  a  prerogative  remedy,  to  punish  a  usurpation  of  franchises  or 
liberties  granted  by  the  crown,  and  never  as  a  remedy  for  private 
citizens  desiring  to  test  the  title  of  persons  claiming  to  exercise  a 
]niblic  franchise  or  desiring  to  establish  a  private  right.  In  Eng- 
land the  information,  as  a  means  of  investigating  and  determining 
civil  rights  between  parties,  owes  its  origin  to  the  statute  of  9  Anne, 
chapter  20,  which  authorized  and  required  the  proper  officer  to 
file  the  information  by  leave  of  court,  upon  the  relation  of  any  person 
desirous  of  prosecuting  the  same,  against  any  person  usurping  or 
intruding  into  any  municipal  office  or  franchise  in  the  kingdom.^'' 
(High  on  Extraordinary  Legal  Remedies,  3d  ed.,  sec.  602.)  That 
statute,  however,  having  been  passed  in  the  year  of  our  Lord  i/io, 
has  never  been  in  force  in  this  state. ^'^ 

It  will  be  observed  from  examination  of  section  i,  supra,  that 
the  proceeding  is  made  the  vehicle  for  the  assertion  of  many  rights, 
both  private  and  public,  which  could  not  have  been  vindicated  by 
this  method  at  the  common  law.  As  originally  used,  the  proceeding 
was  criminal  in  character,  and  the  offender,  upon  conviction,  was 
liable  both  to  fine  and  imprisonment,  as  well  as  ouster  from  the 
franchise  or  liberty  which  he  had  wrongfully  usurped.  Under  our 
statute  the  proceeding  is,  in  fact,  a  civil  remedy  when  used  for  the 
protection  of  private  rights,  and  in  the  event  of  a  judgment  in 
favor  of  the  defendant,  costs  may  be  awarded  against  the  relator. '^^ 
(Ch.  112,  sec.  6,  stipra.) 


'^  See  opinion  of  Tindal,  C.  J.,  in  Darlcy  v.  The  Queen,  12  CI.  &  F.  520 
(1846)  at  p.  536.  Proceedings  under  the  old  writ  of  quo  warranto  were  civil. 
W'hen  proceedings  by  information  in  the  nature  of  quo  warranto  were  sub- 
stituted these  were  at  first  deemed  criminal,  as  they  involved  fine  or  impris- 
onment in  addition  to  the  ouster.  Nevertheless,  proceedings  at  the  instance 
of  private  relators  were  soon  regarded  as  merely  civil.  King  v.  Francis,  2 
T.  R.  484  (1788).  And  now  by  the  act  of  1884,  47  and  48  Victoria,  ch.  61,  §  15, 
amending  the  judicature  act,  proceedings  in  quo  warranto  are  deemed  to  be 
civil.  For  a  recent  case,  see  TJie  King  v.  Beer,  L.  R.  (1903)  2  K.  B.  Div. 
693-  . 

■'"  In  Illinois,  acts  of  parliament  made  in  aid  of  the  common  law  prior  to 
the  fourth  vear  of  the  reign  of  James  I  (1607)  are  in  force  until  repealed. 
M'Cool  V.  Smith,  i  Black  (U.  S.)  459  (1861). 

'"^  In  the  United  States  the  remedy  by  quo  warranto  is  generally  regarded 
as  a  purely  civil  proceeding.  Foster  v.  Kansas,  112  U.  S.  201  (1884)  ;  Coni- 
)nercial  Bank  v.  The  State,  12  Miss.  439  (1845)  ;  State  v.  Ashley,  i  Ark.  279 
(1839)  ;  State  v.  McDanicl,  22  Ohio  St.  354  (1872)  ;  Attornev-General  v.  Dela- 
ware &  B.  B.  R.  Co.,  38  N.  J.  L.  282  (1876)  ;  Kcspnhlica  v.  ^Vray,  2  Yeates 
(Pa.)  429  (1799)  ;  Attorney-General  v.  Sullivan,  163  Mass.  446  (1895)  ;  State 
V.  Standard  Oil  Co.,  218  Mo.  i   (1909). 

In  New  York,  the  writ  of  quo  warranto  is  abolished,  but  the  same  relief 
may  be  had  in  an  action  brought  in  the  name  of  the  people  of  the  state. 
Code  of  Civil  Procedure,  §§  1983-1986;  People  v.  McLaughlin,  174  N.  Y.  450 
(1903)  ;  People  v.  Locw,  19  Misc.  (N.  Y.)  248  (1897)  ;  People  v.  Hinsdale,  43 
Misc.  (N.  Y.)  182  (1904).  .'\nd  in  code  jurisdictions  although  the  form  of  the 
writ  is  abolished  the  substance  of  the  proceeding  remains  unaltered.  Terri- 
tory v.  Hanxhurst,  3  Dak.  205  (1882)  ;  IVishek  v.  Becker,  10  N.  Dak.  63 
(1900)  ;  State  v.  Masons  and  Odd  Felloivs  Joint  Stock  Assn.,  91  Kans.  9 
(1913)- 


256  ACl'lOXS 

Hv  the  ooiiiinon  law,  and  in  I'^ni^^Iand  prior  to  the  passage  of  the 
statute  of  Anno,  arbitrary  (hscretion  was  lodj^ed  in  the  attorney- 
jjfencral  to  determine  whether  he  would  nio\e,  and  that  discretion 
could  not  be  controlled  or  reviewed.  {.Ittorncy-cicncral  v.  Iron- 
mongers' Co.,  2  Beav.  314;  .Ittorncy-fjoicral  v.  Wright,  3  Beav.  447; 
People  y.  .Ittorney-general,  22  Piarl).  114;  People  v.  Faircliild,  8 
Hun.  334 ;  /;/  re  Gardner,  68  N.  Y.  467 ;  Everding  v.  McGinn,  23  Ore. 
15.)  In  extending^  the  scope  of  this  proceedinc;^  the  le,i;islature  of 
this  state  has  not  by  express  words  changed  or  altered  the  common 
law  so  far  as  the  discretion  vested  in  the  attorney-general  or  state's 
attorney  is  concerned.  l)ut  the  character  of  the  discretion  possessed 
by  these  ot^icers  must  be  determined,  to  some  extent,  by  considera- 
tion of  the  rights  which  the  law-making  ])ower  has  committed  to  that 
discretion. 

By  the  common  law  the  information  in  the  nature  of  a  quo 
warranto  was  solely  a  prerogative  remedy.  No  suit  was  ever  prose- 
cuted by  that  remedy  at  the  instance  of  a  private  person  or  for  the 
assertion  of  a  private  right.  It  was  used  only  where  a  wrong  had 
been  done,  or  was  alleged  to  have  been  done,  to  the  king,  and  it  was 
therefore  the  rule  that  only  the  king,  or  his  representative,  should 
determine  whether  a  suit  should  be  brought  to  enforce  the  right  of 
the  king.  Where  jurisdiction  is  given  the  courts  to  enforce  the 
rights  of  private  individuals  by  this  method  it  is  manifest  tliat  the 
power  to  determine  whether  the  suit  should  be  brought  should  not 
be  lodged  in  the  legal  representative  of  the  sovereign  power,  when, 
as  here,  the  right  of  the  citizen  is  substantial  and  the  concern  of  the 
state  with  regard  to  the  litigation  is  practically  or  entirely  theoretical. 
In  such  case,  the  reason  for  the  rule  having  failed  the  rule  itself 
should  fail. 

When  the  legislature  extended  the  right  to  private  individuals  to 
assert  private  rights  by  this  proceeding,  it  is  apparent  that  it  was 
intended  that  they  should  have  an  opportunity  to  seek  redress  for 
tlieir  wrongs  by  making  application  to  a  court,  or  judge  thereof,  for 
leave  to  file  an  information.  The  duty  resting  upon  the  state's 
attorney  to  sign  and  present  a  petition  for  leave  to  file  an  informa- 
tion in  the  nature  of  a  quo  warranto  where  evidence  of  facts  is  prop- 
erly j)resented  to  him  by  a  proposed  relator  which  shows  prima  facie 
that  the  relator  is  legally  entitled  to  the  relief,  in  reference  to  a  pri- 
vate right,  which  v/ould  be  offered  him  by  a  judgment  in  his  favor 
in  a  quo  warranto  proceeding,  is  an  absolute  one.  It  follows,  there- 
fore, that  where  he  declines  to  act  for  any  reason  other  than  the 
facts,  evidence  of  the  existence  of  which  is  presented  to  him,  do  not 
warrant  the  relief  which  the  proposed  relator  seeks,  or  that  the  peti- 
tion and  affidavit  or  af^davits  presented  to  him  are  not  in  proper 
legal  form,  his  declination  is  an  abuse  of  his  discretion,  conceding 
that  his  construction  of  the  statute  be  correct,  and  such  an  abuse 
of  discretion  as  amounts  to  a  refusal  on  his  part  to  exercise  his  dis- 
cretion at  all  and  to  a  refusal  to  perform  the  duty  enjoined  upon 
him  by  the  law. 

Courts  of  last  resort  in  cnir  sister  states  have  frequently  found 
themselves  confronted  with  the  same  difficultv  which  we  are  now 


TFOPLE  EX   REL.   V.    HEALY  257 

considering,  where  legislatures  have  extended  the  scope  of  the  rem- 
edy by  quo  warranto  to  include  the  enforcement  of  private  right 
but  have  failed  to  impose  by  express  words  a  positive  duty  upon  the 
attorney-general  or  state's  attorney  to  proceed  at  the  instance  of 
the  individual  relator,  or  have  failed  to  provide  that  the  proceeding 
may  be  instituted  without  the  co-operation  of  those  officers.  It  has 
sometimes  been  held  that  the  arbitrary  discretion  of  the  public  prose- 
cutor still  exists  as  at  common  law,  and  that  if  he  refuses  to  lend  his 
name  to  the  proceeding  the  individual  relator  is  without  remedy, 
even  though  the  refusal  of  the  officer  results  from  political,  selfish 
or  other  improper  considerations.  In  other  states  relief  for  the 
relator  has  been  suggested  by  various  methods,  not  substantially 
different,  so  far  as  the  result  to  be  attained  is  concerned. -^^ 

The  statute  of  Anne  does  not  expressly  require  the  officer  of  the 
crown  to  file  the  application  for  leave,  and  yet  Rex  v.  Trelawney, 
3  Burr.  1616,  and  Rex  v.  Wardroper,  4  Burr.  1964,  hold  that  under 
that  statute  the  officer  is  without  discretion  in  the  matter  but  must 
apply  at  the  instance  of  the  private  relator,  and  that  the  only  dis- 
cretion is  in  the  court;  and  in  State  v.  Elliott,  13  Utah  200,  it  was 
said  that  "except  when  changed  by  statute  the  rule  of  procedure  is 
practically  the  same  in  this  country  as  in  England"  under  the  stat- 
ute of  Anne. 

It  is,  of  course,  true,  that  in  many  cases  where  the  individual 
relator  has  a  private  and  personal  interest  in  the  suit  which  he  seeks 
to  set  on  foot  the  public  also  has  a  substantial  interest  therein.  No 
injury  can  result  to  the  public  in  such  instances,  however,  by  re- 
quiring the  prosecutor  to  proceed,  for  the  reason  that  the  court,  or 
the  judge  thereof,  when  the  petition  for  leave  to  file  the  information 
is  presented,  is  vested  with  a  sound  legal  discretion  to  be  exercised 
in  determining  whether  leave  to  tile  the  information  should  be 
granted,  and  the  court  or  the  judge  thereof  may,  in  the  exercise  of 


^  Under  statutes  confirming  the  right  to  petition  for  a  quo  warranto  to^ 
the  attorney-general,  the  consent  of  that  officer  is  necessary  although  the  pro-^ 
ceedings  are  at  the  instance  of   a  private   relator.     Wallace  v.   Anderson,  5C 
Wheat.   (U.  S.)  291   (1820)  ;  Barnum  v.  Gihnan,  27  Minn.  466  (1881)  ;  .S"/fl/t' 
V.  Cook,  39  Ore.  2,77  (iQoi)  ;  People  v.  McCldlan,  118  App.  Div.  (N.  Y.)  177 
(1907).    But  it  has  been  intimated  in  some  cases  and  held  in  others  that  the 
court  will  in  a  proper  case  compel  the  state  officer  to  file  the  information. 
State  v.  Dclicsselinc,  i  McCord   (S.  Car.)   52  (1821)  ;  In  re  Bank  of  Mount 
Pleasant,  5  Ohio  250  (1831)  ;  Larnoreaux  v.  Ellis,  89  Mich.  146  (1891)  ;  Cam 
V.  Broivn,  ill  Alich.  657   (1897)  ;  State  v.  Frazicr,  28  Neb.  438  (1889)  ;  State 
V.  Withers,  121  N.  Car.  376  (1897)  ;  State  v.  Dahl,  69  Minn.  108  (1897)- 
<^   In  Pennsylvania,  under  the  Act  of  June  14,  1836,  P.  L.  621,  §§1-2,  quo 
warranto  for  the  usurpation  of  a  public  office  must  be  at  the  suggestion  of 
the  attorney-general  or  some  authorized  agent  of  the  commonwealth.    Com-^ 
tnonweallliv^iirrcll,  7   Pa.  34   (1847),  the  rightsof   a  private  relator  are" 
colrRned  to  cases~vvhere  his  individual  interests  are  involved.    Coinmonwcalth 
V.   Mean  or,   167   Pa.  202    (1895);    Co-minomveatth  v.   Bozvditcli72\7  PaT^27~ 
Tioo7^  :   Alathcws   Petition.  238   Pa.  419    (1913)-    A  private  relator,   though 
having  aiTinterest  is  not  entitled  to  the  writ  for  the  purpose  of  forfeiting  a 
charter.    Commnnzvealtli  v.  Philadcjj'hia  &^C.  C.  R.  Co,,  10  W.  N.  Cas.  400 
(1881)  ;  M'urpHyvTPamicrt^aM,  20 Ta.  415  (i8S3)- 

17 — Civ.  Proc. 


fwa 


25S  ACTUIXS 

tliat  discretion,  fully  protect  the  rij^hts  of  the  ])ul)lic,  and  may  under 
some  circumstances,  where  the  puhlic  weal  demands,  refuse  leave 
to  tile  the  information  although  the  clear  legal  right  of  the  relator 
is  estahlished.  (McPlioil  v.  People,  160  111.  77.)'^".  The  rights  and 
interests  of  the  puhlic  being  thus  fully  protected  by  a  sound  legal 
discretion  lodged  in  the  court,  or  the  judge  thereof  in  vacation,  it 
is  manifest  that  there  is  no  occasion  for  the  exercise  by  the  state's 
attorney  or  attorney-general  of  a  discretion  to  be  used  for  the  same 
purpose  and  for  no  other  purjwse. 

The  discretion  possessed  by  the  attorney-general  at  the  common 
law  is  no  doubt  now  possessed  by  the  attorney-general  or  state's 
attorney  in  all  cases  which  are,  in  fact,  prosecutions  on  the  part  of 
the  people  and  which  involve  no  individual  grievance  of  the  re- 
lator/'^ One  such  case  is  where  the  wrong  is  the  usurpation  of  an 
appointive  public  office  to  which,  in  the  event  of  judgment  of  ouster, 
no  particular  individual  will  have  a  right  to  succeed;  and  another 
example  is  where  the  object  is  to  secure  a  judgment  ousting  a  cor- 
poration from  the  enjoyment  of  all  the  franchises  which  it  exer- 
cises. In  cases,  however,  where  the  proposed  relator  has  an  individ- 
ual and  personal  right,  distinct  from  the  right,  if  any,  of  the  public, 
which  is  enforceable  by  a  proceeding  in  quo  warranto,  and  where 
he  presents  to  the  state's  attorney  a  proper  petition  for  his  signature 
with  evidence  of  the  facts  necessary  to  establish  the  right,  it  is  the 
duty  of  that  officer  to  apply  for  leave  to  file  an  information  in  the 
nature  of  a  cjuo  warranto,  and  if  he  refuses  when  the  matter  is 
properly  presented  to  him,  he  may  be  compelled  by  mandamus  to 
sign  and  file  the  petition  for  leave. 

Reversed  and  remanded. ^- 


'"King  v.  Parry,  6  Ad.  &  El.  810  (1837)  ;  Queen  v.  Cousins,  L.  R.  (1873), 
8  Q.  B.  216;  Commonwealth  v.  Cliiley,  56' Pa.  270  (1870)  ;  State  v.  Smith,  48 
Vt.  266  ( 1876)  r  TTUycr  v.  M inTermann, 70'N.  J.  L.  512  (1904)  ;  State  v.  Vil- 
lage of  Kent,  96  Minn.  255  (1905)  ;  People  v.  Hepler,  240  111.  196  (1909)  ; 
Koven  v.  Stanley,  84  N.  J.  L.  446  (1913)  ;  People  v.  Union  Con.  E.  R.  Co., 
263  III.  32  (1914).  The  discretion  must  be  exercised  according  to  law  and  is 
reviewable.   People  v.  Anderson  239  111.  266  (1909). 

'^People  V.  Grand  River  B.  Co.,  13  Colo.  11  (1889)  ;  Haupt  v.  Rogers,  170 
Mass.  71  (1898)  ;  State  Railroad  Commission  v.  People,  44  Colo.  345  (1908)  ; 
Thirteenth  &  F.  S.  P.  R.  Co.  v.  Broad  Street  R.  T.  Co^giQ  Pa.  10  (1907); 
'Commoin^'ealth  v.  Croz<',  218  Pa.  234  (1907).' 

"  See  further  State  v.  Stezvart,  6  Houst.  (Del.)  359  (1881)  ;  State  v.  Han- 
cock, 2  Penn.  (Del.)  231  (1899)  ;  Attorney-General  v.  N.  ¥.,  N.  H.  &  H.  R. 
R.,  197  ;Mass.  194  (1908)  ;  State  v.  Grimm,  220  Mo.  483  (1909)  ;  Anderson  v. 
Myers,  -jj  N.  J.  L.  186  (1908)  ;  People  v.  Karr,  244  111.  374  (1910)  ;  Common- 
wealth V.  Smail.  238  Fa.  106  (1913)  ;  State  v.  Kuhns,  89  Atl.  i  (Del.  1913)-  ' 


FISHER  Z\   CITY  OF  CHARLESTON  259 


(d)   Mandamus. 

FISHER  V.  CITY  OF  CHARLESTON. 

Supreme  Court  of  Appeals  of  West  Virginia,   i88i. 

17  W.  Va.  595. 


V 


Henry  T.  Fisher  petitioned  the  Circuit  Court  of  Kanawah 
County  for  a  mandamus  against  the  City  of  Charleston,  averring! 
that  he  had  obtained  judgment  against  the  city  for  $744.80,  which 
was  unpaid,  and  that  he  knew  of  no  property  out  of  which  the  judg-j 
ment  could  be  made.  The  prayer  was  for  a  rule  on  the  mayor  and 
city  officials  to  show  cause^whyL.a  writ  of  mandamus  should  not  be 
issued,  commanding  the  treasurer  to  pay  the  petitioner  out  of  any 
"money  in  his  hands  not  appropriated,  and  for  want  of  such  funds 
commanding  the  mayor  and  councils  to  levy  a  tax  sufficient  to  sat- 
isfy the  jttdgment. 

The  mayor  and  other  officials  moved  to  quash  the  rule,  which  "i 
motion  the  court  overruled.    They  then  filed  an  answer  averring 
that  they  had  levied  a  tax  sufficient  to  satisfy  the  judgment  and  had 
made  sundry  payments  to  Fisher. 

To  the  answer  the  plaintiff  demurred,  and  the  demurrer  having 
been  overruled,  replied  generally.  A  jury  sworn  to  try  the  issue 
found  a  special  verdict  to  the  effect  that  the  city  officers  had  made 
a  levy  which  included  the  plaintiff's  claim.  There  were  other  claims 
provided  for  in  the  same  tax  levy.  On  this  verdict  the  court  refused 
a  peremptory  mandamus  and  dismissed  Fisher's  petition.  Fisher 
brought  error. *^^ 

Green,  P.  J. :  Originally  a  mandamus  v^-as  a  mandate  issued  di-1 
rectly  by  the  King  of  England  to  his  subjects,  ordering  the  per- 
formance of  some  specified  act.  It  was  in  no  sense  a  judicial  writ  J 
Such  mandates  have  long  since  become  obsolete.  Any  such  mandate 
was  called  originally  a  mandamus ;  but  gradually  a  m.andate  ceased 
to  be  called  a  mandamus,  and  this  name  was  applied  to  a  judicial 
writ  issued  by  the  King's  Bench  in  the  name  of  the  King.  In  this 
court  the  King  originally  sat  in  person,  and  when  he  ceased  to  do  so, 
yet  by  a  fiction  of  the  law  he  was  still  presumed  to  be  present.  At 
first  these  writs  were  issvied  by  the  King's  Bench  only  in  cases  in 
which  the  King  or  the  public  at  large  was  interested,  and  for  these 
reasons  this  writ  was  called  a  prerogative  writ  and  was  regarded 
as  not  issued  of  strict  right  but  only  at  the  will  of  the  sovereign. 
But  in  modern  times  even  in  England  there  is  a  tendency  to  treat 
this  writ  as  a  writ  of  right,  and  to  strip  it  of  its  prerogative  char- 
acter. In  this  country  it  has  lost  its  prerogative  nature  and  is  re- 
garded very  much  as  a  v/rit  of  right  and  in  the  nature  of  an  ordi- 
nary suit  between  parties,  when  the  aggrieved  party  shov/s  himself 
entitled  to  this  kind  of  relief.  See  Gilman  v.  Bassnett,  2)2)  Conn.  298; 


^  The  statement  of  facts  is  abridged  from  the  opinion  of  the  court,  part 
of  which  is  omitted. 


26o 


ACTIONS 


.tsbcrry  v.  r>t'a:ers,  6  Tex.  4^7;  ConiDiOfi^cralfli  v.  Denuison,  24 
How.  66:'* 

It  is  true,  that  sonic  of  the  courts  in  this  country  still  ajipear  to 
regard  this  writ  as  preroj^ativc  in  its  character.  See  People  v. 
lioani  of  Metropolitan  Police,  26  N.  Y.  316.  This  appears  especially 
to  he  the  case  in  Illinois.  See  Inspectors  of  Peoria  v.  The  People, 
20  111.  530;  People  V.  Hatch,  t,^  111.  134-140;  City  of  Ottawa  v.  The 
People,  48  111.  240.  Rut  the  weight  of  American  authorities  is  de- 
cidedly opposed  to  these  views,  and  we  may  regard  what  Chief 
justice  Taney  said  in  'T/ie  Commonivealth  of  Kentucky  v.  Dennison, 
Governor,  etc.,  24  How.  97,  on  tliis  ]H)int  as  correctly  stating  the 
law.    Me  says; 

"It  is  well  settled,  that  a  mandamus  in  nujclcrn  i)racticc  is  noth- 
ing more  th.an  an  action  at  law  between  the  parties,  and  is  not  now 
regarded  as  a  prerogative  writ.  It  undoubtedly  came  into  use  by 
virtue  of  the  prerogative  powers  of  the  English  crown  and  was  sub- 
ject to  regulations  and  rules,  which  have  long  since  been  disused. 
But  the  right  to  the  writ  and  the  power  to  issue  it  has  ceased  to 
depend  upon  any  prerogative  power,  and  it  is  now  regarded  as  an 
ordinary  process  in  cases,  to  which  it  is  ai)plicable.  It  was  so  held 
by  this  court  in  the  cases  of  Kendall  v.  United  States,  12  Pet.  615; 
Kendall  v.  Stokes  et  al,  3  How.  lOO."''''' 

The  use  of  this  writ  as  a  judicial  writ  issued  by  the  King's 
Bench  may  be  traced  to  the  early  part  of  the  fourteenth  century, 
but  it  was  rarely  used  till  the  latter  part  of  the  seventeenth  century. 
See  Middleton's  Case,  2  Dyer,  322  b.  temp.  16  Elz. ;  Bogg's  Case,  11 
Coke  93;  Pozvers,  J.,  in  Queen  v.  Heathcote,  10  Mod.  48;  Dr.  Wid- 
dington's  Case,  i  Lev.  part  I,  23,  13  Car.  IT;  Rex  \.  Askezv,  Burr. 
2186;  King  v.  City  of  Canterbury,  i  Lev.  part  I,  119;  Sir  Thomas 
Earle's  Case,  Carth.  173;  Rex  v.  Mayor  of  Oxford,  2  Salk.  428. 
The  mode  of  proceeding  in  this  early  day  to  obtain  a  writ  of  man- 
damus was  by  a  motion  based  upon  an  at^davit  for  a  rule  to  show 
cause,  why  a  writ  of  mandamus  to  perform  a  specified  act  should 
not  be  issued.  The  hearing  of  this  motion  was  usually  ex  parte,  no 
notice  thereof  being  given  to  the  other  party.    If  the  motion  was 


"Rex.  V.  Harkcr.  3  Burr.  1265  (1762)  ;  People  v.  Steele,  2  Barb.  (N.  Y.) 
397  (1848);  Queen  v.  Church  Wardens  of  All  Saint.s,  IJ'icjan,  L.  R.  (1876) 
I  App.  Cas.  611. 

"  "The  correct  rule  deduced  from  tlie  modem  practice,  seems  to  be  that 
mandamus,  Avhile  no  longer  a  mere  prerogative  writ,  is  yet  somewhat  of  a 
discretionary  writ  and  should  be  issued  not  in  the  exercise  of  an  arbitrary 
and  capricious  discretion,  but  in  the  exercise  of  a  sound  legal  discretion  in 
accordance  with  the  established  rules  of  law."  State  v.  Gibson,  187  Mo.  536 
at  page  555.  Accord:  State  v.  Wilson,  123  Ala.  250  (1898)  ;  Knight  v.  Thomas, 
93  Maine  494  (1900)  ;  Slate  v.  Board  of  Cohnnissioners,  162  Ind.  580  (1903)  ; 
Cay  V.  Torrance,  145  Cal.  144  (1904)  ;  People  v.  Olsen,  215  111.  620  (1905)  ; 
SUerii'ood  v.  Rynearson,  141  Mich.  92  (1905);  Shepard  v.  Oakley,  181  N.  Y. 
339  (1905)  ;  l»  '<-'  Prceman,  73  N.  J.  L.  329  (iQO?)  ;  Klinlein  v.  Baltimore,  118 
Md.  576  (1912)  ;  Smith  v.  Commissioner  of  Boston,  215  Mass.  333  (1913)  ; 
In  re  Welch  Mfg.  Co.,  201  Fed.  519  (1913)  ;  State  v.  Kan.ms  City  G.  Co.,  254 
Mo.  515  (1914).  In  Washington,  it  is  said  that  any  person  "has  the  same 
right  to  sue  out  the  writ  as  he  has  to  commence  a  civil  action  to  redress  a 
private  wrong."   State  v.  McQuade,  36  Wash.  579  (1905). 


FISIIKR  V.   CITY  OF  CHARLESTON  26 1 

sustained,  an  order  was  made  directing  the  rule  to  show  cause  to  be 
issued.  It  was  provided  in  the  order,  that  the  rule  should  be  served 
by  delivering-  to  the  defendant  a  copy  of  the  order,  which  recjuired 
him  to  appear  at  a  certain  time  and  show  cause  against  the  issuing 
of  the  writ  of  mandamus  described,  and  on  the  return  day  the  de- 
fendant was  heard,  and  any  counter  affidavits  filed  by  him  were  con- 
sidered. The  affidavits  in  support  of  the  motion  should  according  to 
this  old  practice  contain  a  precise  statement  of  the  facts  constituting 
the  relator's  right  to  the  writ,  and  the  allegations  were  required  to 
be  stated  in  this  affidavit  so  positively  that  if  false,  the  relator 
could  be  successfully  prosecuted  for  perjury.  Such  affidavits  should 
also  show  that  the  relator  was  entitled  to  the  relief  he  asked;  that 
he  had  complied  with  all  the  necessary  forms  to  constitute  his  right ; 
and  that  he  had  applied  to  the  defendant  to  do  that  which  he  asked, 
and  that  he  had  refused  or  neglected  to  do  it.  If  by  the  counter- 
affidavit  of  the  defendant  it  was  perfectly  apparent  that  the  relator 
was  not  entitled  to  the  writ  the  rule  was  discharged ;  but  if  the  re- 
lator's right  to  the  writ  after  the  receiving  of  the  counter-affidavits 
was  doubtful,  the  rule  was  made  absolute,  in  order  that  the  right 
might  be  formally  tried,  and  an  order  was  entered  directing  an 
alternative  writ,  or  mandamus  nisi,  to  be  issued. 

In  this  writ  it  was  absolutely  necessary  to  set  forth  the  facts, 
which  entitled  the  prosecutor  to  the  relief  prayed  for.  It  was  ad- 
dressed to  the  person  or  persons,  whose  duty  it  was  to  perform  the 
act,  and  it  commanded  him  or  them  to  do  the  thing  required,  which 
v^^as  accurately  specified,  or  show  some  cause  why  he  or  they  should 
not  do  it.  To  this  writ  the  defendant  was  required  to  make  a  written 
return  either  denying  the  facts  stated  in  the  v.'rit  or  setting  forth 
other  facts  sufficient  to  defeat  the  relator's  claim.  If  the  alternative 
vv-rit  or  mandamus  nisi  was  defective  in  form  merely,  the  defendant 
could  move  to  quash,  before  he  made  his  return ;  but  for  such  defect 
lie  could  not  move  to  quash  after  he  made  his  return ;  but  for  a  defect 
of  substance  the  writ  of  mandamus  nisi  would  be  quashed  at  any 
time,  before  a  perem.ptory  mandamus  was  awarded.  If  the  return 
of  the  defendant  was  adjudged  as  insufficient  answer,  or  if  he  made 
no  return,  a  peremptory  mandamus  was  av/arded  commanding  abso- 
lutely the  defendant  to  do  the  thing  required;  and  if  this  writ  was 
disobeyed,  an  attachment  issued  against  the  defendant.  If  the  return 
was  sufficient  in  law  but  false  in  fact,  the  relator  could  not  traverse 
it,  but  was  forced  to  resort  to  his  action  against  the  defendant  for  a 
false  return.  See  Blackstone's  Com.  iii  ;  Moses  on  Mandamus,  202, 
203 ;  High's  Ex.  Rem.,  sec.  500,  p.  360 ;  Field  on  Corporations,  sec. 
499>  P-  571  ;  Commercial  Bank  of  Albany  v.  Canal  Commissioners, 
10  Wend.  30,  31. 

As  then  the  case  was  at  common  law  determined  entirely  upon 
the  alternative  vv'rit  of  mandamus  and  the  return  thereto,  the  utmost 
strictness  v/as  required  in  these.  It  has  even  been  said,  that  in  a 
return  to  a  mandamus  nisi  the  same  certainty  was  required  as  in 
indictments  or  returns  to  writs  of  habeas  corpus ;  but  it  is  question- 
able, whether  this  was  not  carrying  the  rule  too  far;  (see  King  v. 
The  Mayor,  etc.,  of  Lynn  Regis,  Dough.  177)   though  Lord  Chief 


262  ACTIONS 

Justice  Holt  in  Rr.v  v.  .  Ihinijilon,  12  Mod.  401,  says:  "That  a  return 
to  a  maiulanius  at  oominon  law  rec[uires  the  utmost  certainty  the 
law  allows  of."  Hartol,  Judge,  says  in  Harxvood  v.  Marshall,  10  Md. 
404:  "Th.crc  is  no  branch  of  the  law,  in  which  more  technical  pre- 
cision and  nice  discrimination  are  found,  than  the  rules  which  gov- 
erned the  constructions  of  returns  to  writs  of  mandamus  at  common 
law."  lie  tiien  cites  from  Tapping  on  Mandamus,  353,  the  princi- 
ples, which  at  common  law  govern  in  such  cases,  and  which,  he 
says,  are  sustained  by  the  authorities  he  quotes.  This  citation  is: 
"The  averments  of  the  return  must  be  certain.  The  certainty  re- 
ipiired  b)'  the  common  law  is  by  some  of  the  cases  stated  to  be  cer- 
tainlv  to  every  intent,  and  therefore  greater  certainty  than  is  requi- 
site to  a  plea.  Other  cases  have  decided,  that  tlie  certainty  or  strict- 
ness, which  prevailed  at  common  law,  was  the  same  that  governed 
estoppels,  indictments  or  returns  to  w-rits  of  habeas  corpus;  and 
as  to  til  em  it  is  laid  down,  that  nothing  is  to  be  taken  or  construed 
by  intendment  or  inference,  so  that  all  material  facts  should  be 
positively  and  distinctly  alleged."  But  in  an  older  case  in  Maryland 
it  was  held,  that  the  common  law  required  the  same  certainty  in  a 
return  to  a  mandamus  as  in  declarations  and  pleadings.  Sec  Rroshis 
v.  Renter  et  ol.,  i  Harr.  &  J.  551. 

The  ancient  strictness  and  certainty  required  in  the  return  of  a 
mandamus  nisi  was  based  in  part  on  the  fact  that  it  could  not  be 
traversed,  but  was  treated  by  the  court  as  true.  But  in  171 1,  9  Anne, 
ch.  20,  this  rule  was  changed.  By  the  second  section  of  said  act  it 
was  enacted,  "that  when  a  return  is  made  to  a  mandamus  in  certain 
cases,  it  shall  and  may  be  lawful  to  and  for  tlie  person  or  persons 
suing  or  prosecuting  such  writ  of  mandamus  to  jilead  to  or  trav- 
erse all  or  any  of  the  material  facts  contained  within  the  said  re- 
turn; to  which  the  person  or  persons  making  such  return  shall  re- 
ply, take  issue  or  demur ;  and  such  further  ]n-oceedings  and  in  such 
manner  shall  be  had  therein  for  the  determination  thereof,  as  might 
have  been  had,  if  the  person  or  persons  suing  such  writ  had  brought 
his  or  their  action  on  the  case  for  a  false  return;  and  if  any  issue 
shall  be  joined  on  such  proceedings,  the  person  or  persons  suing 
such  writ  shall  and  may  try  the  same  in  .such  place,  as  an  issue 
joined  in  such  action  on  the  case  should  or  might  have  been  tried; 
and  in  case  a  verdict  shall  be  found  for  the  person  or  ])ersons 
suing  such  writ,  or  judgment  given  for  him  or  them  upon  demurrer 
or  by  nil  dicit  or  for  want  of  a  replication  or  other  [)leading,  he  or 
they  shall  recover  his  or  their  damages  and  costs  in  such  manner, 
as  he  or  they  might  have  done  in  such  action  on  the  case  as  afore- 
said, and  a  peremptory  writ  of  mandamus  shall  be  granted  without 
delay  for  him  or  them  for  whom  judgment  shall  be  given,  as  might 
have  been,  if  such  return  had  been  adjudged  insufficient;  and  in 
case  judgment  shall  be  given  for  the  person  or  j)ersons  making  such 
return,  he  or  they  shall  recover  his  or  their  costs  of  suit.""" 


"In  some  jurisdictions  the  statute  of  9  Anne,  ch.  20,  has  been  regarded 
either  as  part  of  the  common  hiw  or  as  substantially  adopted  in  the  prac- 
tice under  the  local  laws.    United  States  v.  Boiittvell,  84  U.  S.  604   (1873)  ; 


FISHER  V.   CITY  OF  CHARLESTON  263 

111  1843,  (see  6  and  7  Vic,  ch.  67),  a  further  act  was  passed  to 
enable  persons  to  sue  out  and  prosecute  writs  of  error  in  certain 
cases  upon  proceedings  on  writs  of  mandamus.  In  1854,  (see  17 
and  18  Vic,  ch.  125),  v/as  passed  the  common-law  procedure  act, 
which  changed  very  much  the  proceedings  in  mandamus.  These  acts 
are  all  to  be  found  in  the  appendix  to  High's  Extraordinary  Legal 
Remedies. 

The  effect  of  this  statute  of  Anne  was  in  cases  falling  within  its 
provisions  to  assimilate  the  proceedings  in  mandamus  to  those  in 
ordinary  actions  at  law.  The  relator  in  his  alternative  writ  of  man- 
damus, sometiir.es  called  a  mandamus  nisi,  set  forth  his  right  or 
cause  of  action  in  a  formal  manner,  which  corresponded  to  a  decla- 
ration in  an  ordinary  action.  The  respondent  then  set  up  his  defence 
by  way  of  return,  corresponding  to  a  plea  in  an  ordinary  action  of 
law.  The  relator  then  traversed  this  return  or  replied  to  it  by  way  of 
confession  and  avoidance,  corresponding  to  a  replication  in  an  ordi- 
nary suit,  or  he  might  demur,  and  to  this  again  the  respondent 
might  reply  by  traverse  or  by  way  of  confession  and  avoidance; 
and  so  on  till  an  issue  of  law  or  fact  was  joined,  which  was  tried, 
as  such  an  issue  would  be  tried  in  an  ordinary  suit  at  law.  This 
statute  made  the  pleadings  in  certain  mandamus  cases  substantially 
like  those  in  ordinary  suits  at  law ;  and  the  subsequent  legislation  in 
England  rendered  this  likeness  still  more  complete. 

In  some  of  the  states  of  this  country  this  statute  of  Anne  has 
been  recognized  by  the  courts  as  a  part  of  their  law,  while  in  other 
states  from  an  early  day  it  has  been  substantially  re-enacted,  while 
in  a  few  of  the  states  for  some  time  at  least  no  such  statute  existed, 
as  in  Pennsylvania.''^  We  have  always  had  such  a  statute  in  this 
state.  It  is  the  same  as  the  Virginia  statute,  and  is  ch.  109  of  our 
code.    (See.  p.  570.)    It  is  in  these  words: 

"ist.  When  a  v.-rit  of  mandamus  is  issued,  the  return  thereto 
shall  state  plainly  and  concisely  the  matter  of  law  or  fact  relied  on 
in  opposition  to  the  complainant. 


New  Haven  &  N.  C.  v.  State,  44  Conn.  376  (1877)  ;  Fairbank  v.  Sheridan,  43 
N.  J.  L.  82  (1881)  ;  Clement  v.  Graham,  78  Vt.  290  (1905)-  In  other  jurisdic- 
tions the  statute  was  held  not  to  be  in  force,  Commonzvealth  v.  Canal  Conv- 
missioners.  2  P.  &  W.  (Pa.)  517  (1831)  ;  Fttshugh  v.  Luster,  If^ex.  391 
(1849);  Dane  v.  Derbv,  54  Maine  95  (1886)  ;  Chumasero  v.  Potts,  2  Mont.  242 
(1875)  ;  Limt  V.  Davison,  104  Mass.  498  (1870)  ;  State  v.  Jefferson  County, 
II  Kans.  66  (1873).  The  practice  established  by  modern  statutes  and  codes 
has  assimilated  the  proceedinps  to  those  in  an  ordinary  action.  California 
Code  Civil  Procedure,  §§  1084-1097;  New  York  Code  Civil  Procedure, 
§§  2067-2090;  General  Code  of  Ohio  (1910)  §  12283;  State  v.  Crites,  48  Ohio 
St.  142  (1891);  State  V.  Kellogg,  95  Wis.  672  (1897);  People  v.  Best,  187 
N.  Y.  I  (1907). 

•^-  "'  Mandamus  in  Pennsylvania  is  now  regulated  by  the  Act  of  June  8, 
1893,  P.  L.  345,  and  its  supplements.  CovintomvealtJi  v.  Huttel,  4  Pa.  Super. 
Ct.  95  (1897)  ;  Davis  v.  Patterson  12  Pa.  Super.  Ct.  479  U900^  TDonglas^v. 
McLean,  25  Pa.  Super.  Ct.  (1904)  ;  McClintock  v.  yoi'^m  Republicans,  210 
Pa.  115  (1904);  ^I'J^ler  ^  PI,iIrldrlpl,la,  ?^n  \'a  /[hS  (Toi^).  •Ihe~"writ  of 
mandamus  at  the  common  law  and  under  the  statute  must  be  distinguished 
from  an  order  made  by  the  court  upon  the  treasurer  of  a  municipality  for  the 
paj^ment  of  a  judgment  against  it,  commonly  called  a  mandamus.  In  re  Sedgc- 
le>^venue,  88  Pa.  509  (1879).  " 


J()4  AlTlONS 

"2>.I.  'l"ho  (.•(Mnphtiiiaiit  ma}'  llifrcupon  deimir  to  the  return  to 
jtlead  spcoiall}'  thereto  or  both. 

"3tl.  The  defendant  may  reply  to,  lake  i  ^sue  on  or  demur  to  the 
])lcas  of  the  eom])lainant. 

"4th.  If  a  verdict  be  found  or  a  imlj^nicnt  be  rendered  for  the 
])crson  suin.ij  out  a  writ  on  demurrer  or  by  nil  (Heit  or  for  want  of  a 
rephcation  or  other  pleading,  he  shall  recover  his  costs  and  such 
damages  as  the  jury  may  assess,  and  final  judgment  thereupon  shall 
be  awarded  without  delay,  as  if  the  return  to  the  writ  had  been 
judged  insufficient. 

"5th.  If  judgment  be  rendered  for  the  defendant,  he  shall  re- 
cover his  costs." 

This  is  a  re-enactment  substantially  of  the  statute  of  9th  Anne 
with  an  extension  of  its  provisions  to  all  cases  of  mandamus,  the 
statute  of  9th  Anne  being  confined  to  certain  cases  only  of  man- 
damus. 

The  practice  in  mandamus  cases  differs  much  in  England  and 
in  the  different  states  in  this  country,  it  being  largely  regulated  by 
local  rules,  usages  and  statutes.  Some  of  these  diversities  of  prac- 
tice are  pointed  out  and  commented  on  in  Ex  parte  Garland,  42  Ala. 
559.  Without  undertaking  to  point  out  or  comment  on  these  diversi- 
ties of  practice  T  will  simply  state,  that  the  usual  practice  in  this 
state,  and  the  most  usual  practice  in  this  country,  is  to  begin  the 
proceedings  by  presenting  to  the  court  an  ai)plication  in  the  form  of 
a  petition  setting  forth  in  detail  the  grounds,  upon  which  the  peti- 
tioner asks  a  writ  or  mandamus.  This  petition  in  this  state  is  usually 
ex  parte,  no  notice  that  it  will  be  filed  being  given  to  the  defendants, 
and  it  is  always  sui)ported  by  affidavit,  when  presented  by  a  private 
person.  Goshorn  et  al.  v.  Supervisors  of  Ohio  County,  i  W.  Va. 
312;  Board  of  Supervisors  of  Mason  County  v.  Minturn,  4  W.  Va. 
302;  Shields  &  Preston  v.  Bennett,  auditor,  8  W.  Va.  76;  Barnett  v. 
Meredith,  Judge,  10  Gratt.  651 ;  Sights  v.  Yarralls,  12  Gratt.  293.  If 
a  prima  facie  case  is  presented  by  this  i)etition  warranting  the  relief 
sought,  the  court  frequently  issues  a  rule,  which  is  served  on  the 
opposite  party,  requiring  him  to  show  cause,  why  a  mandamus 
should  riot  issue.  Smith  v.  Dyer,  i  Call  563 ;  Dew  v.  Judges  of  Sweet 
Springs,  3  H.  &  ]\I.  i  ;  Barnett  v.  Meredith,  Judge,  10  Gratt.  652; 
Harrison  v.  Emmerson  and  other  Justices  of  Norfolk,  2  Leigh.  764; 
Board  of  Supervisors  of  Mason  County  v.  Minturn,  4  W.  Va.  302; 
The  Ohio  Vallcx  Iron  IJ'orks  v.  The  fozvn  of  MoundsviUe,  11  W. 
Va.  8. 

But  in  this  state  the  issuing  of  this  rule  is  frequently  dispensed 
with  ;  and  the  most  usual  practice  is  to  issue  the  alternative  writ  im- 
mediately on  the  filing  of  a  proper  petition  supported  by  affidavit. 
See  Bridges  v.  Shallcross,  6  W.  Va.  662 ;  Shields  &  Preston  v.  Ben- 
nett, 8  W.  Va.  72;  Fisher  v.  The  Mayor  of  Charleston,  17  W.  Va. 
62S.  Where  the  court  thinks  proper  to  issue  a  rule,  and  it  has  been 
served,  if  the  defendant  fails  to  answer  it  or  files  an  insufficient 
answer,  the  court  either  issues  a  i)eremptory  writ  of  mandamus, 
enlarges  the  rule  or  compels  an  answer,  as  may  be  proper  in  the 
particular  case.    But  if  the  answer  denies  the  facts  stated  in  the 


FISIIKR  v.   CITY  OF  CHARLESTON  265 

petition  or  shows  sufficient  cause,  why  the  rule  should  not  issue,  so 
that  it  appears,  that  there  is  a  dispute  of  fact  between  the  parties, 
an  alternative  writ  of  mandamus  is  ordered  to  be  issued,  in  order 
that  by  the  return  to  such  alternative  writ  of  mandamus  a  formal 
issue  may  be  made  up  and  tried.  See  Dew  v.  Judges  of  Sweet 
Springs,  3  H.  &  M.  i ;  Douglas  &  Woodzvard  v.  Looniis,  Judge,  5 
W.  Va.  544.  This  alternative  writ  of  mandamus,  whether  issued 
immediately  on  the  filing  of  the  petition  or  after  the  return  of  such 
a  rule,  here  as  elsewhere  stands  in  lieu  of  a  declaration  in  an  ordi- 
nary suit.  See  The  People  v.  The  Supervisors  of  Westchester,  15 
Barb.  612;  Canal  Trustees  v.  The  People,  12  III.  254.''^  The  facts, 
however,  alleged  in  this  alternative  writ,  may  be  alleged  by  way  of 
recital ;  but  it  being  in  the  nature  of  a  declaration  as  well  as  of  a 
writ,  the  sufficiency  of  these  facts  to  entitle  the  plaintiff  to  the  re- 
dress he  seeks  is  called  in  question  by  a  motion  to  quash  the  alterna- 
tive writ  or  by  a  demurrer  to  it,  and  any  defect  in  the  recitals  or 
allegations  of  this  alternative  writ  can  not  be  aided  by  the  petition 
or  affidavit  thereto,  for  though  they  be  the  foundation,  on  which 
the  writ  was  issued,  they  constitute  no  part  of  the  pleadings  in  the 
case.  See  Commercial  Bank  of  Albeny  v.  Canal  Commissioners,  10 
Wend.  25;  Johnson  v.  The  Auditor  of  the  State,  4  Ohio  St.  493; 
People  V.  Baker,  25  Barb.  105.  If  the  petition  does  not  state  the 
necessary  facts  to  justify  the  issuing  of  an  alternative  writ  or  a  rule, 
neither  ought  to  be  issued,  and  if  issued,  on  the  return  day  this  fatal 
defect  should  be  taken  advantage  of  not  by  demurrer  but  by  motion 
to  quash  the  alternative  writ  or  to  discharge  the  rule  as  improvi- 
dently  awarded.  The  petition  and  affidavit  bear  to  the  mandamus 
nisi  a  relation. similar  to  that,  which  an  affidavit  bears  to  an  attach- 
ment. 

When  the  alternative  want  of  mandamus  has  been  issued,  if  the 
defendant  does  not  do  the  act  required,  and  the  writ  be  not  quashed 
on  motion  or  dismissed  on  demurrer,  the  defendants,  to  w^iom  it  is 
addressed,  and  none  others,  must  make  a  return  thereto.  This  return 
under  our  statute  is  in  the  nature  of  a  plea  in  an  ordinary  action  at 
law,  and  it  must  be  tested  by  the  ordinary  rules  of  pleading  both  as 
to  its  form  and  substance.  It  must  therefore  be  in  the  nature  of  a 
traverse  or  a  plea  in  confession  and  avoidance;  and  if  insufficient 
in  law,  it  may  be  demurred  to  by  the  complainant,  or  he  may  reply 
thereto;  (see  Commercial  Bank  of  Albany  v.  Canal  Commissioners 
of  the  State  of  New  York,  10  Wend.  20;  The  People  v.  Baker,  25 
Barb.  105;  The  Commissioners  ex  rel.  Middleton  y.  Tlie_C_gmmis- 


•"*  "The  alternative  writ  corresponds  in  many  particulars  to  a  declaration 
at  common  law,  and  in  a  proper  case  may  be  demurred  to,  or  the  return  may 
be  demurred  or  pleaded  to  and  an  issue  made  by  which  the  rights  of  the 
parties  may  be  determined  and  the  decision  of  the  court  reviewed,  if  desired, 
by  writ  of  error."  Sclinitdcr  v.  Transportation  Co.,  76  N.  J.  L.  171  (1908). 
So  also,  Williams  v.  New  Haven,  68  Conn.  263  (1896)  ;  People  v.  Super- 
visors, 142  N.  Y.  271  (1894)  ;  Welch  v.  State,  164  Ind.  104  (1904).  In  Illinois 
the  petition  takes  the  place  of  the  alternative  writ  and  the  plea  or  answer 
takes  the  place  of  the  return,  People  v.  Hcmstrect,  156  111.  155  (1895).  So 
also,  in  Ohio  v.  Dalton,  i  Ohio  C.  C.  119  (1885)  ;  Chatters  v.  Coahona  County, 
73  Miss.  351   (1895). 


266  ACTION'S 

sioiicrs  of  Allegheny  County.  .^7  Pa.  St.  237;  B'ujgsy.  Johnson,  6 
\\'all.  185)  :  and  so  the  pleadings  proceed  as  in  an  ordinary  common- 
law  suit,  till  the  parties  are  at  issue  in  fact  or  law,  which  issues  are 
tried  as  in  an  ordinary  action  at  law. 

judpnent  reversed  and  cause  remanded  willi  instructions  to 
award  a  proper  alternative  writ  of  mandamus  ajjainst  tlie  City  of 
Charleston.'''' 


(c)   Prohibition. 
STATE  z:  WHITAKER.  ^ 

Supreme  Court  of  North  Carolina,  1894. 
114  A^  Car.  818. 

The  defendants  applied  for  a_^_writ  of  prohibition  to  issue  to 
Thomas  Badger,  mayor  of  the  city  oTXaTeigh,  upon  the  groimd  that 
tlie  city  orrlinancc  for  the  violation  of  which  they  were  being  tried 
wasTnvalid  and  because  a  trial  by  jury  had  been  refused  them. 

Clark,  J- :  The  writ  of  i)rohibiLion  existed  at  common  law  and 
is  also  authorized  by  the  constitutional  i)rovision  (Art.  IV,  sec.  8) 
which  gives  the  Supreme  Court  "power  to  issue  any  remedial  writs 
necessary  to  give  it  a  general  supervision  and  control  over  tlie  pro- 
ceedings of  the  inferior  courts."  In  this  state  this  writ  can  issue 
onlv  from  the  Supreme  Court.   Perry  v.  Shepherd,  78  N.  Car.  83. 

The  writ  of  prohibition  is  the  converse  of  mandamus.  It  pro- 
hibits action,  while  mandamus  compels  action.  It  differs  from  ani 
injunction,  v/hich  enjoins  a  i)arty  to  the  action  from  doing  the  for- 
bidden act,  while  prohibition  is  an  extraordinary  judicial  writ  issu- 
ing to  a  court  from  another  court  having  supervision  and  control  of 
its  proceedings,  to  prevent  it  from  proceeding  further  in  a  rnatter 
pending  before  such  lo\ver  court.  It  is  an  original  remedial  writ  and 
is  the  remedy  afforded  by  the  common  law  against  the  encroach- 
ment of  jurisdiction  by  inferior  courts  and  to  keep  them  within  the 
limits  prescribed  by  law.  19  A.  &  E.  Encyc,  263,264;  High,  Ex- 
traordinary Rem.,  sec.  762. 

It  is  settled  that  this  writ  does  not  lie  for  grievances  which  may 


•^'See  also,  Fitch  v.  McDiavmid,  26  Ark.  482  (1871)  ;  State  v.  Lrt.'t.f,  76 
Mo.  370  (1882);  Srdft  V.  Richardson,  7  Houst.  (Del.)  338  (1886);  State  \ 
YouH'j,  102  X.  E.  g6i  (Ind.  1913).  Where  an  officer  or  a  court  has  a  judicia 
or  quasi  judicial  discretion  as  to  the  performance  of  an  act  mandamus  will 
lie  to  compel  the  officer  to  act,  but  will  not  lie  to  control  his  discretion  or  to 
compel  its  exercise  in  a  particular  manner.  United  States  v.  Lawrence,  3 
Dall.  (U.  S.)  42  (1795);  Chase  v.  Blackstone  C.  Co.,  27  Mass.  244  (1830); 
DoiUllass  v  Cominonu'calth,  108  Pa.  559_(i885)  ;  People  v.  Commissioners, 
149  X.  Y.  2?rn^/J^  ;  f'.vhitiiirv:  TTdughion,  98  Va.  499  (1900)  ;  United  States 
V.  Hitchcock,  190  U.  S.  316  (1903)  ;  iValker  v.  Superior  Court,  139  Cal.  108 
(■1903)  ;  Chat  field  Co.  v.  Reeves,  87  Conn.  63  (191.3)  I  People  v.  Craven,  210 
N.  Y.  443  (1914)  ;  IVest  Jersey  &  S.  R.  Co.  v.  Public  Utility  Comm.,  89  Atl. 
1017  (X.  J.  1914).   Contra:  State  v.  Clausen,  44  Wash.  437  (1906). 


STATE  V.   WIIITAKER  267 

be  redressed  in  the  ordinary  course  of  judicial  proceedings  by  ap- 
peal or  by  recordari  or  certiorari  in  lieu  of  an  appeal.  Nor  is  it  a 
writ  of  right,  granted  ex  debito  justitiae,  like  habeas  corpus,  but  it  is 
to  be  granted  or  withheld  according  to  the  circumstances  of  each 
particular  case.  Being  a  prerogative  writ,  it  is  to  be  used  like  all 
such,  v.ith  great  caution  and  forbearance  to  prevent  usurpation,  and 
secure  regularity,  in  judicial  proceedings  where  none  of  the  ordi- 
nary remedies  provided  by  law  will  give  the  desired  relief,  and  dam- 
age and  wrong  will  ensue  pending  their  application.  High  on  Extra- 
ordinary Remedies,  sees.  765,  770. 

In  the  present  case  the  mayor's  court  has  jurisdiction  of  the 
persons  of  the  defendants  and  of  the  subject-matter,  which  is 
the  alleged  violation  of  a  town  ordinance.  If  the  ordinance  in  ques- 
tion is  invalid  that  matter  can  be  determined  on  appeal  to  the  Supe- 
rior Court,  and  by  a  further  appeal  (if  desired)  thence  to  this  court. 
This  has  been  often  done.  There  is  no  palpable  usurpation  of  juris- 
diction or  abuse  of  its  authorit}^,  nor  likelihood  of  injury  to  defend- 
ants, which  calls  for  the  extraordinary  process  of  this  court  by  pro- 
hibition to  stop  the  action  of  the  lower  court.  It  is  more  orderly  to 
proceed  in  the  regular  way  to  have  an  alleged  error  of  this  kind 
corrected  on  appeal.  The  writ  might  properly  issue  where  the  court! 
belov,'  has  no  jurisdiction  of  the  subject-matter,  as  for  instance,  if  al 
justice  of  the  peace  should  attempt  to  try  a  defendant  for  larceny,! 
or  decree  foreclosure  of  a  mortgage;  but  even  in  that  case  it  would! 
rest  in  the  discretion  of  the  Supreme  Court  whether  the  matter 
should  be  left  to  correction  by  appeal  or  by  treating  such  judgment 
as  a  nullity.  As  to  tlie  denial  of  a  jury  trial  by  the  mayor,  it  is 
pointed  out  by  Smith,  C.  J.,  in  State  v.  Powell,  97  N.  Car.  417,  that 
under  the  present  Constitution  (Art.  i,  sec.  13)  the  legislature  is 
authorized  to  vest  the  trial  of  petty  misdemeanors  in  inferior  courts 
without  a  jury  if  the  right  of  appeal  is  preserved.  It  was  otherwise 
under  the  former  Constitution,  under  which  State  v.  Moss,  47  N. 
Car.  66  was  decided.  The  guaranty  of  a  trial  by  jury  in  the  sixth 
and  seventh  amendments  to  the  Constitution  of  the  United  States 
applies  only  to  the  federal  courts,  and  is  not  a  restriction  on  the 
states,  which  may  provide  for  the  trial  of  criminal  and  civil  cases 
in  their  own  courts,  with  or  without  jury,  as  authorized  by  the  State 
Constitution.  Coole3^  Cons.  Lim.  (6th  ed.),  30;  Walker  v.  Samnnct, 
92  U.  S.  90;  Mitnn  v.  Illinois,  94  U.  S.  113. 

There  are  instances,  though  infrequent,  when  this  writ  has  been 
invoked.  It  has  been  granted  where,  after  conviction  for  felony,  the 
court  has  at  a  subsequent  term  granted  a  new  trial  upon  the  merits, 
without  any  legal  authority  for  so  doing.  Quimbo  Appo.  v.  The 
People,  20  N.  Y.  531.  It  is  also  the  appropriate  remedy  pending  an 
appeal  from  an  inferior  to  a  superior  court,  to  prevent  the  former 
from  exceeding  its  jurisdiction  by  attempting  to  execute  the  judge- 
ment appealed  from ;  or  to  prevent  a  circuit  court  exceeding  its 
j)0\vers  by  issuing  an  unauthorized  writ  of  error  and  supersedeas  to 
a  county  court  and  interfering  improperly  with  the  jurisdiction  of 
the  latter.  Supervisors  v.  Gorrell,  20  Grat.  484.  Also,  prevent  an 
inferior  court's  interfering  with  or  attempting  to  control  the  records 


J(>S  AlTlOXS 

ami  seal  of  the  superior  court  \>y  injunction.  T/ioiiuis  v.  Meade,  36 
Mo.  27,2.  It  lies  to  prevent  a  probate  court  exercising  jurisdiction 
over  the  estate  of  a  deceased  ])erson  wlicn  it  can  not  lawfully  do  so. 
rniteii  States  v.  Shank,  15  Minn.  ,^()9.  Or,  where  justices  of  the 
])eace  are  ])roceeding  without  authority  of  law  to  abate  a  supposed 
nuisance,  prohibition  lies  to  stay  their  action.  Zylstra  v.  Charleston, 
1  Ray  38J.  These  are  cited  as  illustrations,  but  in  each  case  it 
is  in  "the  discretion  of  the  Supreme  Court  wliethor  tlie  writ  shall  be 
il^ranted. 

Prohibition  does  not  issue  to  restrain  ministerial  acts,  but  only 
to  restrain  judicial  action  where  the  latter  would  be  a  usurpation 
and  can  not  be  adequately  remedied  by  an  appeal.  19  A.  &  E.  Encyc. 
268,  269.  It  issues  to  and  acts  upon  courts. ..as~aix-ii4ilildi2ILScts 
upon  i^arties,  and  likeaTiJniuiicYio^ 

remedies "caji^be  had  L^y  the  orcfmarj  process  of  tlie  C!)urts.  When 
^nfCrtanieci~tKe  usuaTcoiirs'e,'  unless  prior  notice  of  the  petition  has 
been  given,  is  to  issue  a  notice  to  the  lower  court  to  show  cause 
why  the  writ  should  not  issue  and  to  order  a  stay  of  proceedings  in 
the' meantime.    19  A.  &E.  Encyc.,  280,  281. 

In  the  present  case  if  the  defendants  are  convicted  upon  an  in- 
valid ordinance  there  is  ample  remedy  by  appeal.  The  Constitution 
does  not  guarantee  a  jury  trial  in  such  case,  since  the  defendants 
have  the  right  of  appeal.  If  there  is  aught  in  the  charter  of  the  city 
which  grants  the  defendants  a  trial  by  jury,  if  demanded,  the  error 
in  the  refusal  could  be  corrected  by  a  jury  trial  in  the  superior 
court.  There  is  no  emergency  which  recjuires  the  court  to  issue  the 
writ  prayed  for. 

Petition  denied.'" 


'Tor  an  account  of  prohibition  at  common  law,  see  Ex  parte  Williaius, 
4  Ark.  537  (1842).  See  also,  Connecticut  River  R.  R.  v.  County  Commission- 
ers, 127  Mass.  50  (1879)  ;  State  v.  Ward,  70  Minn.  58  (1897)  -.DjlValts  Pe}ir^ 
Hon  A2  \V.  N.  Ca.  Pa^_iiA  (1898)  ;  Valentine  v.  Police  Court,  141  Cal.  615 
(i(;o4)  ;  People  v.  if'yatt,  186  N.  Y.  383  (1906)  ;  Teham  v.  Municipal  Court, 
191  Mass.  92  (1906)  ;  Hindman  v.  Colvin,  46  Wash.  317  (1907)  ;  State  v.  Rey- 
nolds, 209  Mo.  161  (1908)  ;  Dunbar  v.  Bonrland,  88  Ark.  153  (1908)  ;  Curtis 
V.  Cornish,  109  Maine  384  (1912);  Central  Ga.  P.  Co.  v.  Ham,  139  Ga.  569 
(1913)  ;  McLean  v.  District  Court,  24  Idaho  441  (1913)  ;  Hirsh  v.  Twyford, 
40  Okla.  220  (1913);  State  v.  McOuillin,  256  Mo.  693  (1914)  ;  Succe.';- 
.<;ion  of  McDermott,  134  La.  348  (1914)-  The  imlawful  act  must  be  that  of  a 
judicial  or  quasi  judicial  body.  The  writ  does  not  lie  against  private  individ- 
uals. Southern  R.  Co.  v.  Birmingham  S.  &  N.  R.  Co.,  131  Ala.  663  (1901)  ; 
Moore  v.  Holt,  55  W.  Va.  507   (1904);  Kump  v.  McDonald,  64  W.  Va.  323 


HILL  V.  NELSON  269 

SECTION  4.     VENUE  OF  ACTIONS.  '^ 

HILL  V.  NELSON.  ,.^^ 

Supreme  Court  of  New  Jersey,  1904. 
70  N.  J.  L.  376. 

On  demurrer  to  plea. 

Dixon,  J. :  The  first  count  of  the  declaration  alleges  that  the 
plaintiff  was  possessed  of  a  certain  several  fishery  under  the  statutes 
of  Pennsylvania,  situate  in  the  Delaware  river  opposite  to  the  east- 
erly bank  of  his  farm,  in  Bucks  county,  and  that  the  defendants, 
witli  force  and  arms,  broke  and  entered  that  fishery  and  deposited 
large  quantities  of  earth  upon  the  land  under  the  water  of  the  river 
within  the  bounds  of  his  fishery,  and  thereby  the  fishery  was  ob- 
structed and  the  plaintiff  was  deprived  of  its  use.  The  second  count 
is  in  substance  the  same,  except  that  it  alleges  possession  by  the 
plaintiff  of  a  "certain  pool  and  fishery."  For  the  wrong  thus  perpe- 
trated the  plaintiff  claims  damages. 

To  this  declaration  the  defend^Liita_u!eadjhat  the  supposed  causes 
of  action  accrued  tr,  the  plamtifF  out  of  the  jurisdiction  of  tliis  court, 
HI  ilie  C'linlx'  'if  r,M.ck>,  in  llie  stale  01'  I 'enns\i\ania,  and  therefore 
they  pray  judgment  whether  the  court  can  or  v/ill  take  further  cog- 
nizance of  the  action.    Whereupon  the  plaintiff  demurs. 

Li  the  brief  submitted  on  behalf  of  the  plaintiff  it  is  stated  that 
the  only  cjuestion  is,  "Is  the  action  local  or  transitory?"  in  effect 
conceding  that  if  it  be  local  the  pfea  is  valid. 

The  flecision  of  the  question  does  not  seem  doubtful.  A  several 
;i-;hcry  is  necessarily  attached  to  land  and  belongs  to  the  own^f  6f 
the  land  or  Ins  grantees.  2  Bl.  Com.  39.  It  is  as  immovable  as  the 
land  itself.  Tlie  same  thing  is  true  of  "a  pool  and  fishery."  Since, 
therefore,  the  property  injured  by  the  act  of  the  defendants  had  a 
certain  and  fixed  location,  so  the  wrong  done  was  necessarily  local. 
The  act  charged,  the  depositing  of  earth  on  the  land  under  the  water 
in  which  the  plaintiff  had  his  right  of  fishery,  is  not  legally  distin- 
guishable, as  to  locality,  from  any  other  trespass  upon  the  land. 
According  to  all  the  authorities,  actions  for  such  injuries  are  local. 

But  the  more  important  question,  discussed  in  the  oral  argument 
and  really  involved  in  the  demurrer,  is  whether,  the  cause  of  action'\ 
being  local  and  having  arisen  outside  of  New  Jersey,  this  court  has\ 
jurisdiction  of  a  suit  which  seeks  only  damages  for  the  tort.  (^ 

In  reaching  our  conclusion  on  this  question,  we  have  not  been 
unmindful  of  the  fact  that  an  action  might  be  brought  over  which 
v.-e  would  undoubtedly  have  jurisdiction  and  which  yet  might  re- 
quire a  decision  of  every  point  possible  to  be  raised  in  this  suit.  For 
example,  an   action  upon  a  contract  whereby  the  defendants  had 


''  See  3  Street's  Foundations  of  I^epal  Liability  90,  40  Cyc.  10,  22  Enc. 
PI.  &  Pr.  773;  I  Chitty  on  Pleading  ^279;  Gould  on  Pleading  (Wills  ed.) 
263;   Stephen  on  Pleading  (Andrews'  ed.)  324. 


270  ACTIONS 

ptisrocd  ti)  iiuloninifv  the  plaintill"  for  this  injury  in  case  he  proved 
jjiir.isolt  entitled  to  the  fishery.    Nor  do  we  overlook  the  i)ossibility 
that,  if  we  have  no  jurisdiction,  the  i)laintirf  may  be  remediless, 
since  elsewhere  no  court  may  be  able  to  reach  the  defendants  or 
their  property.    Nevertheless,  we  are  obliged  to  decide  the  matter 
according  to  the  prescriptions  of  the  common  law,  which  in  this 
respect  have  not  been  changed  by  constitutional  or  legislative  pro- 
visions. 
^    On  examining  the  subject  we  find  an  inveterate  and  imperative 
/  rule  of  the  common  law  that  if  a  local  cause  of  action  arises  outside 
V^f  the  realm,  the  law  courts  have  no  jurisdiction  over  it. 

Originally  the  pleader  was  required  to  state  truly  the  place  where 
each  fact  asserted  by  him  occurred,  and  if  issue  was  joined  thereon 
the  fact  was  tried  by  a  jury  summoned  from  that  neighborhood  or 
venue.  Afterwards,  wdien  juries  were  no  longer  expected  to  decide 
issues  of  fact  upon  their  own  knowledge,  a  fictitious  venue  was  in 
some  actions  permitted,  and  the  pleader  assigned  to  his  facts,  under 
a  videlicet,  the  place  in  which  he  desired  the  trial  to  be  held.  These 
actions  were  then  styled  transitory.  But  this  fiction  was  not  allowed 
when  the  cause  of  action  was  so  related  to  a  certain  piece  of  land 
that  it  must  have  arisen  on  or  near  that  land.  Actions  for  such 
causes  were  still  local  and  triable  only  in  the  vicinity  in  which  the 
land  lay.  One  effect  of  this  rule  was  that  if  the  land  was  outside 
of  the  limits  of  England  the  law  courts  of  that  country  had  no 
jurisdiction.  The  truth  of  this  statement  is  made  evident  by  the 
cases. 

As  early  as  1667  the  question  came  before  the  house  of  lords  in 
the  remarkable  controversy  between  Skinner  and  the  East  India 
Company  (6  St.  Tr.  710),  when  Skinner  complained  to  the  house 
that  the  company,  among  other  wrongs,  had  unlawfully  seized  his 
warehouses  in  the  East  Indies  and  that  he  could  not  obtain  redress 
in  the  ordinary  tribunals.  The  opinions  of  the  judges  at  West- 
minster being  called  for,  they  all  replied  that  for  the  seizure  of  his 
realty  he  was  not  relievable  in  any  ordinary  court  of  law  in  England. 
On  that  opinion  the  house  attempted  to  establish  an  original  civil 
jurisdiction  in  itself  and  adjudged  £5,000  to  Skinner  as  damages, 
but  such  vigorous  protest  and  opposition  were  made  by  the  house 
of  commons  against  this  usurpation  that  finally,  on  the  intervention 
of  the  king,  the  lords  abandoned  their  position  and  the  records  of 
the  proceedings  in  both  houses  were  expunged. 

In  1725  the  question  again  arose  at  nisi  prius  before  Chief  Jus- 
tice Eyre,  in  Shelling  v.  Fanner,  i  Str.  646,  and  he  likewise  ruled 
that  the  king's  bench  could  not  try  an  action  of  trespass  for  the 
seizure  of  a  house  in  the  East  Indies,  referring  to  a  former  decision 
to  the  same  effect  in  a  local  action  for  a  cause  arising  in  Barbadoes. 
Fifty  years  afterv/ards,  Lord  Mansfield,  in  Alostyn  v.  Fabrigas, 
Covv-p.  161,"^  mentioned  two  nisi  prius  trials  before  himself,  in  which 


'*  See  Enplish  and  American  notes  to  this  case  in  Smith's  Leading  Cases, 
and  Gardiner  v.  Thomas,  14  Johns.  (N.  Y.)  134  (1817)  ;  Barrell  v.  Benjamin, 
15  Mass.  354   (1819).    The  act  of  21  James  I,  ch.   12,  requiring  actions  of 


HILL  V.  NELSON  27I 

the  plaintififs  had  recovered  damages  for  injuries  to  realty  beyond 
the  sea  within  the  dominions  of  the  king,  but  he  seems  to  have  fol- 
lowed an  erroneous  report  of  the  ruling  of  Chief  Justice  Eyre,  in 
Shelling  v.  Farmer.  When,  a  few  years  later,  the  question  came  be- 
fore the  king's  bench,  in  Doulson  v.  Matthews,  4  T.  R.  503,  the  nisi 
prius  cases  before  Lord  Mansfield  w^ere  overruled.  Lord  Kenyon 
saying  that  the  contrary  had  been  held  in  the  common  pleas,  and  the 
decision  being  that  an  action  for  damages  resulting  from  a  trespass 
to  land  in  Canada  could  not  be  tried  in  England,  and  that  the  plain- 
tiff in  such  an  action  was  rightly  nonsuited. 

In  1875  the  point  v\as  again  decided  in  IVhitaker  v.  Forbes,  L.  R. 
10  C.  P.  583;  I  C.  B.  Div.  51,  where  it  was  held  that  an  action  of 
debt  for  an  annuity  charged  upon  land  in  Australia,  and  for  which 
the  defendant  was  responsible  only  because  of  his  estate  in  the  land, 
was  local  and  could  not  be  maintained  in  England. 

Very  recently  the  question  was  again  before  the  English  courts, 
in  Conipanhia  de  Mocambique  v.  British  South  Africa  Co.,  2  Q.  B. 
358  (1892)  ;  App.  Cas.  602  (1893),  and  it  was  decided  by  the  house 
of  lords  that,  even  since  the  judicature  acts  which  abolished  the 
distinction  between  transitory  and  local  suits  with  regard  to  venue, 
the  courts  of  England  had  no  jurisdiction  to  entertain  an  action  for 
damages  caused  by  a  trespass  on  lands  abroad. 

The  same  view  has  been  upheld  in  this  country.  Livingston  v. 
Jefferson,  i  Brock.  203  (before  Chief  Justice  Marshall)  ;  Watts  v. 
Kenney,  6  Hill  82 ;  Cragin  v.  Lovell,  88  N.  Y.  258 ;  Clark  v.  Scud- 
der,  6  Grav  122,  and  many  cases  cited  in  i  Sm.  Lead.  Cas.  961  and 
22  Encyc.  PI.  &  Pr.  776.^- 

Although  in  New  Jersey  the  question  seems  never  to  have  been 
decided,  the  distinction  between  transitory  and  local  actions  has 
always  been  observed,  and  in  Ackerson  v.  Erie  Railroad  Co.,  2 
Vroom  309,  this  court  based  its  reasoning  upon  that  distinction  to 
sustain  jurisdiction  over  a  transitory  cause  of  action  arising  out  of 
the  state,  apparently  assuming  that  if  the  cause  had  been  local  the 
suit  could  not  have  been  maintained. 

Our  conclusion  is  that  we  have  no  jurisdiction  to  try  the  merits 
of  this  controversy. 

The  plaintiff  urges  that  the  plea  is  informal  because  it  does  not 
show  what  court  has  jurisdiction.  But  this  is  not  necessary  when  the 
plea  presents  facts  showing  that  the  subject-matter  is  beyond  the 


case,  trespass  and  false  imprisonment  against  justices  of  the  peace,  majors, 
constables,  etc.,  to  be  brought  in  the  county  -where  the  cause  of  action  arose, 
was  held  not  in  force  in  several  of  the  American  states.  Pcarce  v.  Atzvood, 
13  Mass.  324  (1816)  ;  Campbell  v.  Thompson,  16  Maine  117  (1839)  ;  Gardner 
V.  Kichl,  182  Pa.  194  (1897).  But  in  many  of  the  states  statutes  require  suits 
agamst  public  officers  to  be  tried  in  the  county  where  the  cause  of  action 
arose.  New  York  Civil  Code  of  Procedure,  §983 ;  Murphy  v.  Callan,  69  App. 
Div.  (N.  Y.)  413  (1902);  Layne  v.  Sharp,  32  Ky.  L.  2,2>  (1907).  As  to 
municipal  corporations,  see  Phillips  v.  Baltimore,  no  Md.  431   (1909). 

"  Where  an  act  in  one  state  causes  damages  in  another,  as  between  the 
states  the  action  is  generally  held  transitory.  Thayer  v.  Brooks,  17  Ohio  489, 
49  Am.  Dec.  474  (1848)  ;  Mannvillc  Co.  v.  Worcester,  138  Mass.  89,  52  Am. 
Rep.  261  (1884)  ;  Smith  v.  Southern  Railroad,  136  Ky.  162  (1909). 


2/2  ACTIONS 

p^cncral  jurisilictiDii  of  the  courts  of  the  state;  it  was  i"C(iuired  only 
when  the  denial  of  jurisdiction  resulted  from  some  special  and  ex- 
clusive jurisdiction  residins;-  elsewhere  within  the  realm.  See  Coni- 
panh'ia  de  Mocaiiib'njiic  w  South  .Ifrica  Co.,  2  (J.  B.  358,  369 
(189J).  In  circumstances  like  those  present  the  question  might  be 
raised  by  demurrer  to  the  declaration  if  the  necessary  facts  were 
averred,  or  by  jilca  in  bar  or  by  motion  to  nonsuit,  as  may  be  per- 
ceived on  reference  to  the  cases  already  cited. 
The  defendants  are  entitled  to  judgment."'* 


r 


J.  E.  BRADY  r.  R.  B.  BRADY. 

SUPKKMl-:  COL'RT  OF  NoRTTI   CaROLIXA.    I913. 
161  .V.  Car.  324. 

Appeal  from  Webb,  J.,  at  Fall  Term^  1912,  of  Hertford. 

Tins  action  is  to  recover  $900  in  the  possession  of  the  defendant 
Bridger.  The  plaintiff  alleges7m  substance,  tliat  lie  1s' fHe^oWner 
qTatract-.oi  land  in  Virginia;  that  the  defendant  R.  B.  Brady  has 
sold  the  timber  on  said  land,  and  has  caused  the  same  to  be  cut  and 
reiiioved ;  that  $900  of  the  money  paid  for  the  timber  is  now  in  the 
piirssession  of  the  defendant  Bridger,  as  attorney  for  the  defejidant 
Brady,  and  that  he  has  made  demand  for  said  money,  which  has 
been  refused.  There  is  no  allegation  of  an  unlawful  entry  upon  said 
land,  nor  that  the  cutting  and  removal  was  wrongful,  and  the  plain- 
tiff does  not  ask  to  recover  damages  to  the  land,  but  that  he  recover 
/said  sum  of  S900. 

When  the  action  was  called  lor  trial  it  was  dismissed  on  the 
motion  of  the  defendant,  ui)on  the  ground  that  the  courts  of  this 
istate  did  not  have  jurisdiction  thereof,  and  the  plaintiff  excepted 
and  appealed. 

Allen,  J.:  If  the  cause  of  action  set  out  in  the  complaint  is 
local,  the  courts  of  Virginia  alone  have  jurisdiction  of  it, _and  if 
trarisltory,~tIiF action  may  be  maintained  in  this  state. 

Actions  are  transitory  \\hen  the  transactions  on  which  they  are 
basecl  v.v  '.'c  an\\\hcre,  and  are  local  when  they  could 

iT(5T  occi!  Mine  particular  place.    The  distinction  exists  in 

the  nature  of  the  subject  of  the  injury,  and  not  in  the  means  used  or 
the  place  at  v.hich  the  cause  of  action  arises.    Mason  v.  Warner,  31 


'*  Lkingston  v.  Jefferson,  i  Brock.  (U.  S.)  203  (1811)  ;  liachns  v.  Trustee.'! 
of  Illinois  &  Mich.  Canal,  ij  111.  534  (1856);  Bates  v.  Ray,  102  Mass.  458 
(1869)  ;  Cragin  v.  Lovell,  82  N.  Y  258  (1882)  ;  l)it  Brenil  v.  Pennsylvania  R. 
Co.,  130  Ind.  137,  29  N.  E.  909  (1891)  ;  Martin  v.  .South  Norivalk  Sav.  Bank, 
72  Conn.  698  (1899)  ;  Munger  v.  Cro-nee,  115  III.  App.  189  (1904)  ;  Peyton  v. 
Des)noud,  129  Fed.  i  (1904)  ;  Mnnicihal  Council  of  Sydney  v.  Bull,  L.  R. 
(1909),  I  K.  B.  Div.  7;  Gem  City  Acetylene  Co.  v.  Cohlentz,  86  Ohio  199 
(1912);  Dhooghe  v.  Chicago,  etc.,  R.  Co.,  91  Nebr.  613  (1912).  Compare 
firi.<:bane  v.  Penna.  R.  Co.,  205  N.  Y.  431  (1912)  with  Little  v.  Chicago,  etc., 
R.  Co.,  65  Minn.  48  (1896). 


BRADY  2'.  BRADY  273 

Mo.  510;  McLeod  v.  R.  R.,  58  Vt.  732;  Perry  v.  R.  R.,  153  N.  C. 
118. 

The  subject  of  the  injury  complained  of  by  the  plaintiff  is  the 
refusal  by  the  defendants  to  surrender  to  him  money,  the  proceeds!) 
of  the  sale  of  certain  timber,  which  he  alleges  belonged  to  him,  ands 
there  is  nothing  in  the  complaint  which  would  entitle  him  to  recover,  / 
here  or  elsewhere,  damages  for  injury  to  the  land.    He  does  not  al-/ 
lege  an  unlawful  and  wrongful  entry  or  other  trespass  upon  the 
land,  nor  that  the  land  was  injured,  and  contents  himself  with  a 
statement  of  a  cause  of  action  for  money  in  the  hands  of  the  defend- 
ants in  this  state. 

We  have  said  recently,  in  IVilliams  v.  Lumber  Co.,  154  N.  C. 
309 :  "If  one  entered  upon  the  land  of  another  and  cut  trees  thereon, 
the  owner  of  the  land  and  of  the  trees  had  his  election  at  common 
law  to  sue  in  trover  and  conversion  or  in  trespass  de  bonis  asportatis 
for  the  value  of  the  trees,  of  in  trespass  quare  clausiim  fregit  for 
injury  to  the  freehold,  the  land,  or  to  the  possession  of  it,"  and  the 
first  tv.'O  of  these  actions  are  transitory,  and  the  last  local. 

If  the  owner  elects  to  sue  for  the  recovery  of  damages  to  the 
land,  he  must  allege  a  trespass,  but  can  waive  the  trespass,  consider 
the  trees  as  personality  after  severance  from  the  land,  and  sue  for 
the  wrongful  conversion  or  wrongful  carrying  away  of  the  trees,  in 
v.hich  event  he  would  recover  their  value. 

The  reason  the  action  qnare  clausum  fregit  is  local  is  that  the 
injury  to  the  land  can  only  be  done  on  the  land,  and  the  other  actions 
are  transitory  because  the  trees,  after  severance,  may  be  carried 
away  and  converted  elsewhere. 

The  question  has  arisen  in  other  jurisdictions  and  has  been  de- 
cided in  accordance  with  these  views. 

In  McGonigle  v.  Atchison,  33  Kans.  726,  the  plaintiff  sued  in  the 
courts  of  Kansas  to  recover  damages  for  the  removal  of  sand  from 
land  in  Missouri,  and  the  court,  discussing  the  right  to  maintain! 
the  action,  said:   "If  the  facts  show  a  cause  of  action  in  the  nature  \ 
of  trespass  de  bonis  asportatis,  or  trover,  then  the  action  is  certainly  I 
transitory;  but  if  they  show  only  a  cause  of  action  in  the  nature  of  \ 
trespass  quare  clausum  fregit,  then  the  action  is  admittedly  local   J 
*     *     *     He  (the  plaintiff)  seems  to  v/aive  all  the  wrongs  and  in- 
juries done  with  reference  to  his  real  estate  and  to  his  possession 
thereof,  provided  the  digging  and  removal  of  the  sand  was  any  in- 
jury to  either,  and  sues  only  for  the  value  of  the  sand  which  was 
converted.   We  think  it  is  true,  as  is  claimed  by  the  defendant,  that 
the  petition  states  facts  sufficient  to  constitute  a  cause  of  action  in 
the  nature  of  trespass  quare  clausum  fregit;  but  it  also  states  facts 
sufficient  to  constitute  a  cause  of  action  in  the  nature  of  trespass 
de  bonis  asportatis,  and  of  trover;  and  we  think  the  plaintiff  may 
recover  upon  either  of  these  latter  causes  of  action,  for  they  are 
unquestionably  transitory.     *     *     *     When  the  sand  was  severed 
from  the  real  estate,  it  became  personal  property,  but  the  title  to 
the  same  was  not  changed  or  transferred.    It  still  remained  in  the 
plaintiff.    He  still  owned  the  sand,  and  had  the  right  to  follow  it 
18 — Civ.  Proc. 


2y.\  ACT  KINS 

aiul  reclaim  it.  inti)  wliatcvcM-  jurisdiction  it  mio^lit  be  taken.  He 
could  recover  it  in  an  action  of  replevin  (Richardson  v.  York,  14 
Me.  J16:  Harlan_y^arhw,  15  Pa.  St.  507;  Ilallcck  v.  Mixer,  16 
Cal.  574)  ;  or  he  could  maTntaln  an  action  in  the  nature  of  trespass 
dc  bonis  osportatis,  for  damag^es  for  its  unlawful  removal  {IVadleigh 
V.  Janrrin.  41  N.  H.  503,  520;  Bulkey  v.  Dolbearc,  7  Conn.  232)  ; 
or  he  could  maintain  an  action  in  the  nature  of  trover,  for  damages 
for  its  conversion,  if  it  were  in  fact  converted  {Tyson  v.  McGuineas, 
2$  Wis.  656;  ]]' hidden  v.  Seelye,  40  Me.  247,  255,  256;  Riley  v. 
Boston  If.  P.  Co.,  65  Mass.  11 ;  Nelson  v.  Burt,  15  Mass.  204;  For- 
syj^h  y,JlljdU,.4lIij^i-  291;  Wright  w  Guicr,  9  Watts  172;  Mooers 
v.  U'ait,  3  Wend.  104)  ;  or  he  could  maintain  an  action  in  the  nature 
of  assumpsit  for  damages  for  money  had  and  received,  if  the  tres- 
l)asser  sold  the  property  and  received  money  therefor  (Pozvell  v. 
Rees,  7  Ad.  &  L.  426;  JJliidden  v.  Seelye,  40  Me.  255;  Halleck  v. 
Mixer,  16  Cal.  574.)" 

In  Tyson  v.  McGuineas.  25  Wis.  658,  the  court  said  of  a  cause 
of  action  to  recover  damages  in  the  courts  of  Wisconsin  for  the 
cutting  of  trees  on  lands  in  Michigan :  "The  cause  of  action  stated 
in  the  com]-)laint  is  for  appropriating  and  converting  by  the  defend- 
ants, to  their  own  use,  three  million  feet  of  pine  timber  and  saw- 
logs,  the  property  of  the  plaintiff.  To  sustain  this  cause  of  action, 
various  witnesses  were  sworn  upon  the  part  of  the  plaintiffs,  who 
gave  evidence  tending  to  show  that  these  logs  were  cut  upon  lands 
belonging  to  them  in  Michigan.  But  the  cause  of  action  relied  on  is 
manifestly  not  trespass  to  the  realty.  It  is  not  claimed  that  there  can 
be  any  recovery  for  damages  to  the  real  estate  in  this  action.  But 
it  is  said,  in  answer  to  the  objection  that  tb.e  action  is  local,  that  as 
soon  as  the  trees  and  timber  were  severed  from  the  realty,  they  be- 
came personal  property,  and  that  trover  will  lie  against  any  one 
removing  and  converting  them.  The  authorities  cited  by  the  coun- 
sel for  the  plaintiffs  certainly  establish  the  principle  that  when  the 
trees  on  the  plaintiffs'  land  were  severed  from  the  freehold  and  car- 
ried away,  they  became  personal  property,  and  that  an  action  of  tro- 
ver might  be  maintained  for  their  value.  \V hidden  v.  Seelye,  40 
Me.  247;  Moody  v.  Uliitney,  34  Me.  563;  Pierrepont  v.  Barnard,  5 
Barb.  364;  Sampson  v.  Hammond,  4  Cal.  184,  and  cases  there  cited. 
It  must  be  admitted  that  trover  is  a  transitory  action,  and  may  be 
maintained  in  this  state  for  a  conversion  of  personal  property  in  an- 
other state.  W hidden  v.  Seelye,  supra;  Glen  v.  Hodges,  9  Johns. 
66;  I  Chitty  PI.,  269;  Gould,  PL,  ch.  3." 

In  W'hidden  v.  Seelye,  40  Me.  255,  the  plaintiff  sued  in  the  courts 
of  Maine  to  recover  damages  for  cutting  and  removing  timber  from 
lands  in  New  Brunswick,  and  the  court  said:  "The  trees  on  the 
plaintiff's  land,  when  severed  from  the  freehold  and  carried  away, 
[jecame  personal  property,  and  his  title  thereto  was  not  divested  by 
the  wrongful  acts  of  the  defendant.  *  *  *  When  there  has  been 
a  severance  of  what  belongs  to  the  freehold,  and  an  asportation,  the 
action  of  trover  may  be  maintained.  3  Stephens  N.  P.,  2665.  The 
title  to  the  property  severed  remains  unchanged  and  the  owner  may 
regard  it  as  personal  property  and  maintain  replevin.    Richardson 


STATE  EX  REL.  V.   COURT  ET  AL.  275 

V.  ]^ork,  14  Me.  216.  So,  the  tort  being  waived,  if  the  property 
severed  has  been  sold,  the  action  of  assumpsit  may  be  maintained. 
*  *  *  The  jury  have  found  that  the  plaintiff  was  in  possession 
of  the  mortgaged  premises  and  that  tlie  defendant  cut  thereon  the 
logs  in  controversy. 

The  logs  having  been  severed  from  the  freehold,  and  after  such 
severance  being  personal  property,  and  having  been  carried  away 
and  converted  by  the  defendant  to  his  own  use,  trover  is  the  fitting 
and  appropriate  form  of  action  in  which  to  recover  the  damages 
resulting  from  their  conversion.  It  is  a  transitory  action  and  may 
be  maintained  in  this  state  for  a  conversion  of  personal  property  in 
a  foreign  jurisdiction." 

It  thus  appears  that  the  plaintiff  could  maintain  this  action  under 
the  forms  of  action  at  common  law,  and  if  so,  his  right  to  do  so  can 
not  be  doubted  under  a  system,  like  ours,  which  has  abolished  forms 
of  action,  and,  looking  only  to  the  substance,  requires  a  simple,  con- 
cise statement  of  the  facts,  and  affords  the  party  relief  to  which  he 
is  entitled  upon  the  facts. 

Pleadings  are  now  construed  liberally,  with  a  view  to  substantial 
justice  between  the  parties,  and  if  it  can  be  seen  from  their  general 
scope  that  a  party  has  a  cause  of  action,  although  not  stated  with 
technical  accuracy,  the  pleading  will  be  sustained.  Stokes  v.  Taylor, 
104  N.  Car.  395;  Blackinore  v.  Winders,  144  N.  Car.  215;  Brewer 
V.  Wynne,  154  N.  Car.  471. 

The  cases  of  Cooperage  Co.  v.  Lumber  Co.,  151  N.  Car.  455,  and 
Perry  v.  R.  R.,  153  N.  Car.  117,  are  not  in  conflict  with  this  position, 
because  in  each  the  cause  of  action  was  to  recover  damages  for  in- 
jury to  the  land. 

Being  of  opinion,  therefore,  that  the  cause  of  action  stated  in  the 
complaint  is  to  recover  the  value  of  the  trees  and  is  transitory,  we 
hold  that  it  can  be  maintained  in  this  state. '^^ 

Reversed. 


STATE  EX  REL.  MACKEY  v.  DISTRICT  COURT  ET  AL. 

Supreme  Court  of  Montana,  1910. 

40  Mont.  359. 

Original  application  for  prohibition,  by  the  state  on  the  relation 
of  William  T.  Mackey,  against  the  district  court  of  the  fifth  judicial 
district  to  forbid  further  proceedings  in  the  case  of  Lillie  E.  Lenicke 
V.  G.  F.  McConnell,  A.  B.  Widney  and  U\  T.  Mackey.  The  suit  was 
on  promissory  notes  executed  at  Portland,  Oregon,  and  payable  in 


"Accord:  Bradlcy-Watkin.'^  Co.  v.  Kalamazoo  Judge,  144  Mich.  142,  107 
N.  W.  875  (1906).   Compare  Walker  v.  Bejiry.  7  Pa.  C.  C.  258  (1889). 

In  American  Union  Tel.  Co.  v.  Micfdleton,  80  N.  Y.  408  (1880),  the  de- 
fendant cut  down  telegrapli  poles  and  carried  them  to  the  ditches  and  side 
fences  of  the  road  where  he  left  them.  Held  an  action  would  not  lie  outside 
of  the  state  where  the  cause  of  action  arose. 


2-6  ACTIONS 

tlKit_city.  Il  ai)j>earc(l  that  the  plaintilT  Lenickc  resided  at  Seattle, 
W'ashinjj^ton.  and,  of  the  det'eiuhuits,  McCotuiell  resided  at  Seattle 
and  W'idncy  ami  Mackey  at  I'ortland,  Orejjon."" 

Smith,  |.:  It  is  contended  in  the  reply  brief  of  the  relator  that 
the  district  court  has  no  jurisdiction  of  tlie  subject-matter  of  the 
f cause,  for  tlie  reason  that  the  contracts  were  in  terms  to  be  per- 
formed in  the  state  of  Oregon,  cou])led  with  the  fact  that  the  de- 
fendants are  all  nonresidents  of  Montana.  Our  statute  (Revised 
Codes,  sec.  6504)  ex]>ressly  provides  that,  if  none  of  the  defendants 
reside  in  tjus  state,  an  action  may  be  tried  in  any  county  which  the 
planitTlT  may  designate  in  his  complaint.  As  to  what  are  styled  local 
ScTions^— sucli,  for  example,  as  those  relating  to  interests  in  lands — 
usually  the  venue  or  place  of  trial  is  the  district  or  the  county  where 
the  subject-matter  lies.  But  in  general,  transitory  actions  may  be 
tried  wherever  personal  service  can  be  made  on  the  defendant.  As 
to  the  general  jurisdiction  of  the  courts  of  a  state,  this  is  coexten- 
sive with  its  soxereignty,  which  is  limited  only  by  the  territory  of 
the  state  and  attaches  to  all  the  property  and  persons  within  the  lim- 
its thereof.    (W'ells  on  Jurisdiction  of  Courts,  sees.  112,  113.) 

The  Supreme  Court  of  North  Carolina  in  Miller  v.  Black,  47 
N.  Car.  341,  said:  "The  case  presents  simply  the  question  whether 
one  citizen  of  the  United  States  can  sustain  an  action  against  a  citi- 
zen of  another  in  a  state  where  neither  lives.  *  *  *  To  many 
purposes  the  citizens  of  one  state  are  citizens  of  every  state  in  the 
Union.  They  are  not  aliens,  one  to  the  other.  They  can  purchase 
and  hold,  and  transmit  by  inheritance,  real  estate  of  every  kind  in 
each  state.  It  would  be  strange  indeed  if  a  citizen  of  Georgia,  meet- 
ing his  debtor,  a  citizen  of  Massachusetts,  in  the  state  of  New  York, 
should  not  have  a  right  to  demand  what  was  due  him,  nor  be  able  to 
enforce  his  demand  by  resort  to  the  courts  of  that  state.  *  *  * 
Ahist  a  citizen  of  California  to  whom  one,  a  citizen  of  Maine,  owes 
a  debt,  *  *  *  <r{)  to  Maine,  and  bring  his  suit  there,  or  wait 
till  he  catches  him  in  California?  We  hold  not,  but  that  the  courts 
of  every  state  in  the  Union,  where  there  is  no  statutory  provision 
to  the  contrary,  are  open  to  him  to  seek  redress."  The  same  court, 
in  Wolters  v.  Breeder,  48  N.  Car.  64,  said:  "We  think  it  is  settled 
that  a  citizen  of  South  Carolina  may  sue  another  citizen  of  that  state 
in  the  courts  of  our  state  upon  a  personal  cause  of  action  originat- 
ing in  South  Carolina." 

In  the  case  of  Johnston  v.  Insurance  Co.,  132  Mass.  432,  the 
Supreme  Judicial  Court,  through  Mr.  Justice  Endicott,  said:  "It 
has  been  decided  in  this  commonwealth  that  one  foreigner  may  sue 
another  in  our  courts  upon  a  simple  contract  debt  made  without  our 
jurisdiction  ;  if  the  defendant  is  found  here  and  process  can  be  legally 
served  upon  him."  In  the  case  of  tlall  v.  Williams,  6  Pick  (Mass.) 
232,  17  Am.  Dec.  356,  it  was  held  that,  if  a  citizen  of  one  state  was 
in  another  state  and  served  with  process  there,  he  was  bound  to 

'"The  statement  of  facts  is  from  the  opinion  of  the  ccnirt,  a  part  only 
of  which  is  printed.  It  was  held  that  the  court  had  acquired  jurisdiction  over 
the  persons  of  the  defendants  hy  virtue  of  a  general  appearance  by  counsel, 
the  discussion  of  that  point  is  omitted. 


KENWOOD  V.   CIIEESEMAN  277 

appear  and  make  his  defense,  or  submit  to  the  consequences.  The 
Supreme  Court  of  Iowa,  in  Darrah  v.  Watson,  36  Iowa  116,  said: 
"Is  it  true  that  the  courts  of  our  state  can  not  acquire  jurisdiction  of 
the  person  of  a  citizen  and  resident  of  a  sister  state  by  the  service 
of  original  process  upon  such  citizen  within  the  jurisdiction  of  the 
former  state?  We  think  it  is  not."  Again,  the  Supreme  Judicial 
Court  of  Massachusetts  in  Barrell  v.  Benjamin,  15  Mass.  354,  said: 
"Personal  contracts  are  said  to  have  no  situs  or  locality,  but  follow 
the  person  of  the  debtor,  wdierever  he  may  go ;  and  there  seems  to 
be  no  good  reason  why  courts  of  any  country  may  not  lend  their  aid 
to  enforce  such  contracts."  And  it  was  therefore  held  that  one  for- 
eigner might  sue  another  who  was  transiently  within  the  jurisdic- 
tion of  the  courts  of  the  state  upon  a  contract  made  between  them 
in  a  foreign  country.  (See  also,  Gardner  v.  Thomas,  14  Johns. 
(N.  Y.)  134,  7  Am.  Dec.  445;  Hawes  on  Jurisdiction  of  Courts, 
sec.  16;  Lisenbee  v.  Holt,  i  Sneed  (33  Tenn.),  42;  Szvan  v.  Smith, 
26  Iowa,  87.)  In  the  case  of  Peabody  v.  Hamilton,  106  Mass.  217, 
it  was  said:  "That  both  parties  are  foreigners  is  no  ground  for 
dismissing  the  writ.  It  is  not  necessary  that  a  foreign  plaintiff 
should  be  personally  within  the  jurisdiction  in  order  to  institute  an 
action.  *  *  *  Personal  actions  of  a  transitory  nature  may  be 
maintained  in  any  jurisdiction  within  which  the  defendant  is  found, 
so  that  process  is  legally  served  upon  him.  This  we  understand  to 
be  tlie  general  rule  of  the  common  law."  In  Dewitt  v.  Buchanan,  54 
Barb.  (N.  Y.)  31,  it  was  held:  "Actions  for  injuries  to  the  person 
are  transitory  and  follow  the  person;  and  therefore,  so  far  as  the 
nature  of  the  action  is  concerned,  one  foreigner  may  sue  another 
foreigner  in  our  courts  for  a  tort  committed  in  another  country,  the 
same  as  on  a  contract  m.ade  in  another  country." 

In  our  judgment  there  can  be  no  question  that  the  district  court 
of  JefTerson  County  had  jurisdiction  of  the  subject-matter  of  the  \ 
action,  and,  it  having  acquired  jurisdiction  over  the  persons  of  the 
defendants  by  their  voluntary  general  appearance,  it  follows  that 
the  proceedings  in  this  court  should  be  dismissed;  and  it  is  so 
ordered. ^^ 

Dismissed. 


KENWOOD  z:  CHEESEMAN. 

Supreme  Court  of  Pennsylvania,  181 7. 

3  Serg.  &  R.  (Pa.)  500. 

Cheeseman,  the  plaintiff  below,  brought  an  action  of  assumpsit 
against  Kenwood  in  the"'Court  of  Common  Pleas  of  Philadelphia 
County""f6r'the  use  and' occupation  of  the  plaintiff's  land  in  the 


''^Roberts  v.  Knight,  7  Allen  (Mass.)  449  (1863)  ;  Educational  Society  v. 
Varney,  54  N.  H.  376  (1874)  ;  Henderson  v.  Perkins,  94  Ky.  207,  14  Ky.  L. 
782,  21  S.  W.  1035  (1893);  Kunselman  v.  Stine,  192  Pa.  462,  43  Atl.  948 
(1899). 


J~8  MTIONS 

State  of  Now  Jersey.  It  appeared  that  Ihc  defendant  went  on  the 
TaiiTt  uTulcr  an  ajjreenient  to  purehase,  hut  a  dispute  havinj]^  occurred 
anil  the  purchase  not  having:  been  conii)leted,  the  vendor  brought  this 
action,  (^n  error  by  the  defendant  below  it  was  urj:;ed  that  the  action 
was  locab'"* 

'I'li.r.ii  NfAN.  C  J.:  The  last  exception  is,  to  the  jurisihction  of 
the  court  of  common  pleas.  The  land  is  in  New  Jersey,  and  there- 
fore, the  defendant  supposes,  an  action  for  the  rent,  can  be  main- 
tained nowhere  out  of  New  Jersey.  Were  this  action,  in  its  nature 
local,  the  law  would  be  with  the  defendant.  I>ut  the  action  is  transi- 
tory, and  therefore  not  confined  to  New  Jersey.  The  action  of 
assumpsit  is  founded  on  X^riyity  ofcontract,  not  jpri  vity  pf^  esiate. 
This  was  (lee icled  in  tlfe  case  of  The  Corporation  of  New  ForFv. 
PatK'son,  2  Johns.  Cas.  335.  With  regard  to  actions  for  the  recovery 
of  rent,  I  take  the  law  to  stand  thus :  Where  the  action  is  brought 
by  the  lessor  against  the  lessee,  being  founded  on  the  mere  privity  of 
contract,  it  is  transitory,  and  may  be  brought  out  of  the  county,  or 
state,  in  which  the  land  lies.  But  if  the  lessor  assigns  the  reversion, 
and  the  action  is  brought  by  the  assignee  of  the  reversion,  against 
the  lessee,  there  is  a  distinction,  founded  on  the  form  of  the  action 
which  may  be  brought.  The  assignee  may,  in  such  case,  maintain  an 
action  of  debt  at  common  lav,%  which  being  founded  solely  on  privity 
of  estate  (for  the  privity  of  contract  is  destroyed  by  the  assign- 
ment of  the  reversion),  is  local.  Or,  he  may  have  an  action  of  cove- 
nant by  virtue  of  the  statute  32  Hen.  8,  ch.  34,  which  transfers  the 
privity  of  contract  from  the  assignor  to  the  assignee;  and  this 
action  not  being  founded  on  privity  of  estate,  but  of  contract,  is 
transitory,  and  may  be  brought  anywhere.  This  distinction  is  taken, 
in  the  case  of  Thursby  v.  Plant,  i  Saund.  237,  which  is  cited  by  the 
court  in  Tlirale  v.  Cormvall,  i  Wils.  165,  v.ith  this  remark,  "that  it 
had  always  been  held  for  good  law."  We  may  take  the  rule  then 
to  be,  that  where  the  action  is  founded  on  i)rivity  of  estate,  it  is  local, 
where  on  privity  of  contract,  it  is  transitory.  T  have  laid  down  this 
rule,  when  the  action  is  brought  by  the  lessor,  or  the  assignee  of  the 
reversion,  against  the  lessee.  It  is  unnecessary  to  speak  now  of 
actions  brought  against  the  assignee  of  the  lessee.  In  i  Chitty  on 
Pleadings,  274,  275,  the  cases  on  this  subject  are  collected,  and  the 
result  briefly  and  truly  given. 

I  am  of  opinion,  on  the  whole,  that  the  [)resent  action  was  well 
brought,  and  well  supported  by  the  evidence.  The  judgment  should, 
therefore,  be  affirmed. 

Duncan.  J. :  Assumpsit  can  not  be  considered  as  a  local  action. 
It  is  founded  on  the  contract  express  or  implied,  between  the  i)arties. 
No  possible  case  could  ever  arise,  in  which  the  action  would  be 
local.  But  all  actions  of  debt  or  covenant,  between  the  lessor  and 
lessee,  the  action  being  founded  on  privity  of  contract,  are  transi- 
tory, whether  the  lands  be  abroad,  or  in  the  county  in  which  the 
action  is  brought,    i  Chitt.  Plead.  274.    The  rule,  as  I  apprehend  it, 


"Only  so  much  of  the  opinion  of  the  judges  as  relates  to  tlie  question  of 
venue  is  included. 


THE  CHANCELLOR  V.   MORRIS  279 

is:  where  the  action  is  founded  on  privity  of  estate,  it  is  local; 
where  on  privity  of  contract,  transitory.  Debt  for  rent  by  the 
assignee,  is  local.  But  covenant  being  founded  on  privity  of  con- 
tract, is  transitory.'^^  At  common  law,  covenant  did  not  lie  for  the 
assignee  of  the  reversion,  but  is  given  by  stat.  32  Hen.  8,  ch.  34. 
Thrale  v.  Cornzuall,  1  Wils.  165,  and  so  is  the  distinction,  i  Saund. 
237.  It  can  be  no  objection  to  the  action,  that  it  concerns  tlie  realty, 
and,  therefore,  only  can  be  tried  in  the  county  in  which  the  land  lies. 
This  is  not  the  law  of  contracts.  For  where  you  proceed  against  the 
party  for  damages,  for  the  nonperformance  of  such  contract,  you 
may  bring  the  action  wherever  the  party  is  to  be  found.  It  follows 
the  person,  and  in  Penn  v.  Baltimore,  a  specific  execution  of  articles 
respecting  lands  lying  in  America,  was  decreed  by  the  Court  of 
Chancery  of  England.  For  where  the  title  is  incidental,  the  court 
possessing  jurisdiction  of  the  contract,  which  is  in  its  nature  transi- 
tory, may  even  inquire  into  the  very  title,  let  the  lands  lie  where  they 
may.  Besides,  in  this  case,  the  defendant  would  not  be  allowed  to 
qtiestion  the  plaintiff's  title  to  the  land. 

Gibson,  J.,  was  absent. 

Judgment  affirmed.^" 


THE  CHANCELLOR  OF  THE  STATE  OF  NEW  JERSEY 
V.  BENJAMIN  P.  MORRIS. 

Supreme  Court  of  New  Jersey,  191  i. 
82  A-.  /.  L.  14. 

Garrison,  J. :  To  the  declaration  filed  in  the  name  of  the  chan- 
cellor in  an  action  on  a  receiver's  bond  the  defendant  demurred  and 
also  moved  to  strike  out  the  assignments  of  breach.  Without  passing 
upon  the  propriety  of  this  joinder,  we  have,  since  no  objection  was 
interposed  by  the  plaintiff,  considered  die  several  grounds  urged 
against  the  declaration  with  the  result  that  judgment  is  given  for  the 
plaintiff  on  the  demurrer  and  the  defendant  takes  nothing  by  his 
motion. 


"  Covenant  founded  on  privitj-  of  contract  is  transitory,  but  when  founded 
on  privity  of  estate  is  local.  Licitoiv  v.  Ellis,  6  Mass.  331  (1810)  ;  Bracket  v. 
Alvord,  5  Cow.  (N.  Y.)  18  (1825)  ;  Whitakcr  v.  Forbes,  L.  R.  1875)  10  C.  P. 
583;  Tillotson  V.  Prichard,  60  Vt.  94,  14  Atl.  302,  6  Am.  St.  95  (1887)  ;  Cole- 
man V.  Lucksingcr,  224  Mo.  i  (1909)  ;  Burt  Lumber  Co.  v.  Bailey,  175  Fed. 
131   (1909). 

'"Bulwer's  Case,  7  Co.  S7  (1584);  ^Pey  v.  Yally,  6  Mod.  194  (1704); 
Thiirsby  v.  Plant,  i  Saund.  237  (1669);  Roche  v.  Marvin,  92  N.  Y.  398 
(1883)  ;  State  v.  Pist.  Court,  94  Minn.  370,  102  N.  W.  869  (1905)  ;  Clement  v. 
Stanger,  75  N.  J.  L.  287  (1907)  ;  Shcppard  v.  Cflcnr  D'Alcne  Lumber  Co.,  62 
Wash.    12   (1911). 

Courts  of  equity  act  in  personam.  Peun  v.  Lord  Baltimore,  i  Ves.  Sr.  444 
(1750)  ;  Massie  v.  I'l'atts,  6  Cranch  (U.  S.)  148,  3  L-  ed.  181  (1810)  iSchmaltc 
V.  York  Mfg.  Co..  204  Pa.  i,  53  Atl.  522,  59  L.  R.  A.  907,  93  ArrT  Sr.  7S2 
(1902). 


J^O  ACTION'S 

The  defenclnnt  also  niovcd  that  the  venue,  which  was  laid  in  At- 
lantic County,  be  chanj^ed  to  Monmouth  County  where  the  defend- 
ant resides.  Ihe  venue  as  laid  is  sought  to  be  justified  upon  the 
ground  that  the  receiver's  creditors  in  whose  interest  the  action  is 
brought  are  residents  of  Atlantic  County.  Such  creditors  are,  how- 
ever, not  parties  to  the  action,  hence  the  place  of  their  residence  was 
not  to  be  considered  in  laying  the  venue,  which  under  the  two 
hundred  and  second  section  of  the  i^ractice  act,^^  might  be  either 
(i)  the  county  in  which  the  plaintiff  resides,  or  (2)  in  which  the 
defendant  resides,  or  (3)  in  which  the  cause  of  action  arose,  or 
(4)  in  which  process  was  served  on  a  nonresident  defendant. 

In  the  present  case  the  venue  should  have  been  laid  in  the 
county  in  which  the  defendant  resides  since  none  of  the  odier  con- 
tingencies existed.  Neither  the  residence  of  the  chancellor  as  an 
individual  nor  the  state  capital  is  within  the  meaning  of  the  statute, 
moreover  no  one  has  moved  to  have  tlie  place  of  trial  in  either  Mor- 
ris or  ^Mercer  County.  The  cause  of  action  can  not  be  said  to  have 
arisen  in  any  particular  covmty;  and  the  defendant  is  not  a  non- 
resident. There  being  therefore  but  one  place  where  the  v^enue  could 
properly  be  laid  under  the  statute,  there  was  no  right  of  choice  in 
the  plaintiff  and  no  room  for  the  discretion  of  the  court  under  the 
two  hundred  and  second  section.  Assuming  that  the  convenience  of 
the  persons  for  whom  the  action  is  brought  will  be  considered  under 
the  two  hundred  and  third  section  as  if  they  were  plaintiffs,  the  con- 
venience of  the  defendant  is  equally  entitled  to  consideration ;  and 
where  the  conveniences  off'set  each  other,  the  statutory  venue  should 
prevail.  The  venue  must  be  changed  to  Psionmouth  County,  not  for 
the  convenience  of  the  defendant,  but  because  there  was  no  author- 
ity to  lay  it  elsewhere,  and  no  sufficient  reason  has  been  shown  for 
a  change  of  the  venue  laid  in  conformity  with  the  statute. ®- 


"■3  Comp.  Stat.  N.  J.  (1910)  41 13. 

"  In  England  the  rules  of  the  Supreme  Court  provide,  order  36,  rule  i, 
"There  shall  be  no  local  venue  for  the  trial  of  any  action,  except  where  other- 
wise provided  by  statute,  but  in  every  action  in  every  division  the  place  of 
trial  shall  be  fixed  by  the  court  or  a  judge."  The  place  of  trial  is  ordinarily 
fixed  by  the  master  under  the  summons  for  directions.  The  place  is  fixed 
according  to  the  balance  of  convenience,  having  regard  to  all  the  circum- 
stances. Jenkins  V.  Biisliby,  L.  R.  (1891)  i,  ch.  484.  It  is  within  the  discretion 
of  the  judge  to  change  the  venue.  Thorogood  v.  Newman,  23  Times  Rep. 
97  (1906). 

In  the  United  States  the  rules  as  to  local  venue  are  to  a  large  extent 
statutory.  Some  states  adhere  to  the  common  law,  but  in  the  great  majority 
the  subject  is  fully  covered  by  statute.  For  example,  see  New  York  Code 
Civ.  Pro.  §§  982  to  990;  California  Code  Civ.  Proc.  §§  392  to  400;  i  Burns' 
Ann.  Stat.  Ind.  (1914)  §§  309  to  311.  In  the  various  statutes  the  common- 
law  rules  are  followed  approximately  in  actions  relating  to  land.  In  transi- 
tor>-  actions  proper  the  general  policy  is  that  suit  shall  be  brought  in  the 
county  where  the  plaintiff  or  defendant  resides.  40  Cyc.  94  and  cases  there 
cited.  Wood  v.  Ins.  Co.,  13  Conn.  202  (1839)  ;  Talmadge  v.  Third  Nat.  Bank, 
91  X.  Y.  531  (1883)  ;  Archibald  v.  Miss.  R.  Co.,  66  Miss.  424  (1889)  ;  Jacob- 
son  V.  Hosmer,  76  Mich.  234,  42  N.  W.  mo  (1889)  ;  Hunt  v.  IDean,  91  Minn. 
96,  97  N.  W.  574  (1903)  ;  Interstate  Cooperage  Co.  v.  Eureka  Lumber  Co.,  151 
N.  Car.  455  (1909);  Hislop  v.  Taaffe,  141  App.  Div.  (N.  Y.)  40  (1910); 
Danser  v.  Dorr,  78  S.  E.  367  (\\^  Va.  1913)  ;  Scott  v.  Miller  L.  Co.,  122  Minn. 


WEST  V.   RATLEDGE  28 1 

SECTION  5.     COMMENCEMENT  OF  ACTIONS, 
(a)   Process. 

WEST,  qui  tarn,  v.  RATLEDGE. 

Supreme  Court  of  North  Carolina,  1833. 

4  Devereux's  Law   (N.  Car.)   31.*' 

Daniel,  J. :  In  England,  when  a  person  is  about  to  commence  a 
•suit,  the  usual  course  of  proceeding  is  in  the  first  place,  to  execute 
a  warrant  to  an  attorney  of  the  court  to  have  the  writ  issued,  and 
the  pleadings  in  the  cause  made  up.  The  attorney  then  gives  instruc- 
tions for  the  original ;  these  instructions  are  contained  in  a  paper 
called  the  praecipe,  in  which  he  sets  forth  the  cause  of  action. 
Formerly,  the  practice  was  to  take  the  warrant  and  the  praecipe  to 
the  chancery,  where  the  original  writ  was  caused  to  be  made  out  by 
the  Master  of  the  Rolls ;  which  original  recited  the  action  as  stated 
in  the  praecipe.  The  original  is  a  mandatory  letter  in  parchment 
from  the  King,  tested  in  his  name,  and  sealed  with  the  great  seal. 
It  is  directed  to  the  sherifl^  or  other  returning  officer  of  the  county 
v/here  the  plaintiff  intends  to  lay  the  venue,  and  is  made  returnable 
to  the  court  either  of  the  King's  Bench  or  Common  Pleas,  at  West- 
minster.^* If  the  sheriff  return  on  the  original  non  est  inventus,  the 
original  is  then  left  on  file  in  the  court,  and  a  judicial  writ  or  process 
issues,  called  a  special  capias  ad  respondendum,  which  is  grounded 
upon  the  original.  If  the  sheriff  return  on  the  capias,  non  est  in- 
ventus, the  plaintiff"  then  may  issue  an  alias,  and  a  pluries,  and  so  on 
into  outlawry,  to  compel  an  appearance  by  the  defendant.  When  the 
defendant  appears  in  court  in  consequence  of  the  service  of  the 
original,  or  an  arrest  on  any  process  which  issues  upon  it,  the  plain- 
tiff' then  files  his  declaration,  and  serves  a  copy  on  the  defendant, 
who  defends  either  by  demurrer  or  plea.   If  he  pleads  to  tlie  action, 


377  (1913).  As  in  the  principal  case  many  statutes  provide  that  nonresidents 
may  be  sued  where  found  or  served.  Murpliy  v.  IVinter,  18  Ga.  690  (1855)  ; 
Hawley  v.  State,  69  Ind.  98  (1879)  ;  Baisley  v.  Baislcy,  113  Mo.  544,  21  S.  W. 
29,  35  Am.  St.  726  (1892)  ;  Stcen  v.  Swadley,  126  Ala.  616,  28  So.  620  (1899)  ; 
Smith  V.  Provident  Sav.  L.  A.  Soc,  159  Mich.  167  (1909). 

The  Nev/  York  Code  Civ.  Pro.,  §  987,  provides :  "The  court  may,  by 
order,  change  the  place  of  trial  in  either  of  the  following  cases:  (i)  Where 
the  county  designated  for  that  purpose  in  the  complaint  is  not  the  proper 
county.  (2)  Where  there  is  reason  to  believe  that  an  impartial  trial  can  not 
he  had  in  the  proper  county.  (3)  Where  the  convenience  of  witnesses,  and 
the  ends  of  justice  will  be  promoted  by  the  change."  Similar  statutes  are  in 
force  in  most  states.  See  Carpenter  v.  Central  Vcr>!iont  R.  Co.,  84  Vt.  538 
(1911)  ;  Murray  Cure  Inst.  Co.  v.  Ward,  108  Minn.  527  (1909);  State  v. 
District  Court,  43  Mont.  571  (1911)  ;  Hemenway  v.  Fitzgerald,  159  App.  Div. 
(N.  Y.)  748  (1913)  ;  Taber  v.  Eyler,  162  S.  W.  490  (Tex.  1913)  ;  Willoughhy 
v.  Buffalo,  etc.,J<^  Co.,  203  Pa.  243  (1902). 

"  E5c"tract  from  the  opinion  of  the  court. 

"^^  The  day  for  the  defendant's  appearance  is  generally  the  return  day  of 
the  writ,    i  Tidd's  Practice  106;  Hunsaker  v.  Coffin,  2  Ore.  107  (1864). 


28  J  ACTKINS 

then  the  wlmlc  of  the  pleadings  to  tlio  makiiij^  up  of  the  issue  are 
coinploteil  in  the  Superior  Court  at  Westniinster.  A  nisi  prius  record 
is  tlicn  made  out  and  transmitted  to  the  court  of  nisi  prius,  or  the 
assizes  of  the  county  wliere  the  \enue  is  laid,  that  the  issues  may  be 
there  tried  by  a  jmy.  When  a  trial  takes  place,  and  a  verdict  is 
rendered,  it  is  entereil  on  the  nisi  i)rius  roll,  or  some  paper  attached 
to  it  which  is  called  the  postea,  and  delivered  to  the  party  in  whose 
favor  the  verdict  is  rendered,  who  returns  it  into  the  Superior  Court, 
at  Westminster,  where  the  record  belongs ;  and  on  notice  being  given 
to  the  adverse  party,  a  motion  is  then  made  for  judgment;  which,  if 
no  cause  is  shown  to  the  contrary,  is  rendered  by  the  court  upon 
which  issues  the  execution. 

In  modern  times  the  practice  of  commencing  suit  by  original  pur- 
chased out  of  chancery,  has  been  tacitly  waived  by  the  profession. 
The  practice  is  now,  for  the  attorney  to  leave  the  praeci])e  and  a 
memorandum  of  his  warrant  at  the  filazer's  office,  and  the  filazer 
thereupon  issues  a  capias  ad  respondendum,  in  the  first  instance, 
keeping  the  praecipe  as  instructions  for  the  original,  if  it  afterwards 
becomes  necessary,  by  a  writ  of  error  being  brought  after  a  judg- 
ment by  default,  on  demurrer,  or  on  plea  of  mil  tiel  record;  for 
the  want  of  an  original  is  aided  after  verdict,  by  stat.  i8,  Eliz.  ch.  14. 
If  a  writ  of  error  should  be  brought,  for  the  want  of  an  original, 
in  any  of  those  cases  where  the  defect,  is  not  cured  by  the  statute 
of  Elizabeth,  the  plaintiff  may,  by  a  i)etition  to  the  Master  of  the 
Rolls,  obtain  an  original  and  move  the  court  where  the  record  is, 
to  amend  by  adding  the  original,  which  is  always  granted.  So  that 
the  record  is  comjilete,  when  in  obedience  to  the  writ  of  certiorari,  it 
is  transmitted  into  the  court  of  errors.  The  plaintiff  in  error  will 
then  have  nothing  in  the  record  upon  which  he  can  assign  errors,  and 
will  fail  in  his  effort  to  reverse  the  judgment,  (i  Saund.  318,  a 
Archb.  P.  K.  B.  73.)  By  the  rules  of  the  common  law,  great  nicety 
and  exactness  were  required  in  the  proceedings  and  pleadings  in  a 
suit;  small  errors  and  inaccuracies  were  always  sure  to  be  fatal  to 
the  party  making  them  ;  as  for  instance,  in  bailable  actions,  the  decla- 
ration should  always  correspond  with  the  writ  in  the  names  of  the 
parties,  and  in  the  cause  of  action  {Bingham  v.  Dickie,  i  Eng.  C.  L. 
:vep.  276,  Archb.  Pra.  68,  69,  124),  and  if  there  w^as  a  variance  in 
these,  or  in  the  sum  demanded,  Ijetween  the  w  rit  and  declaration,  it 
would  be  fatal.    (Archb.  68.)'*' 


■^See  also  3  Blackstone'.s  Commentaries,  270,  chaps.  18  and  19;  Arcli- 
bold's  Practice,  bk.  I,  pt.  i ;  Tidd's  Practice,  chaps.  5  to  11  ;  Troubat  &  Haly's 
Practice,  ch.  6;  32  Cyc.  419. 

In  modern  Hnt;Iish  practice  every  action  in  the  high  court  of  justice  is 
commenced  either  by  a  writ  or  by  an  originating  summons.  A  writ  is  a  formal 
document  by  which'the  king  commands  tlie  defendant  to  enter  an  appearance 
within  so  many  days  (usually  eight)  if  he  wishes  to  dispute  plaintiff's  claim, 
otherwise  judgment  will  be  signed  against  him.  The  writ  specifies  the  name 
and  residence  of  each  plaintiff  and  defendant  and  the  name  and  place  of 
business  of  th.e  plaintiff's  solicitor.  It  also  specifies  the  division  of  the  high 
court  in  which  the  plaintiff  intends  to  sue.  Besides  the  formal  statements 
ever\-  writ  must  be  endorsed  with  a  statement  of  the  nature  of  plaintiflf's 
claim  and  of  the  relief  or  remedy  required  in  the  action.    Ordinarily  the  en- 


HAIL  Z'.   SPENCER  283 


HAIL  z:  SPENCER. 

Supreme  Court  of  Rhode  Island,  1835 

I  R.  I.  17. 


By  the  Court:  The  note  declared  on  is  dated  October  31,  1828, 
and  signed  by  Esek.  Spencer.  The  writ,  dated  October  2y,  1834,  is 
admitted  to"  have  been  sent  to  the  officer  for  service,  a  day  or  two 
before  the  31st  October,  1834,  but  ins_not_admitted  that_the  officer 
received  the  writ  before  the  day  of  service,^"    *""  " " 

Was  the  action  commenced  within  six  years? 

Our  act  of  limitations  seems  to  be  not  materially  different  from 
the  English  statute,  adopted  as  early  as  the  reign  of  James  I.  And  it 
seems  to  be  reasonable  to  conclude  that  the  English  construction  was 
perfectly  understood  by  our  legislature.  If,  therefore,  the  language 
of  both  statutes  is  substantially  the  same,  our  legislature  must  have 
used  the  language  with  a  view  to  the  meaning  given  to  it  by  English 
courts.  In  fact  the  principles  of  the  decisions  of  those  courts  have 
been  uniformly  recognized  in  ours,  as  truly  expounding  the  meaning 
of  the  act.  If  the  issuing  of  the  English  capias  be  considered  in  the 
common  pleas,  then,  the  commencement  of  the  suit  (and  it  in  fact  is 
in  all  cases  where  an  outlawry  is  not  contemplated),  there  can  be 
no  good  reason  why  the  issuing  of  our  writ  of  arrest,  or  original 
summons  (which  takes  the  place  of  the  arrest),  should  not,  on  like 
principles,  be  deemed  the  commencement  of  the  suit.  The  writ  of 
arrest  is  nothing  more  than  the  English  capias,  naturalized  here,  or 
accommodated  to  our  institutions.  Now  it  is  admitted  that  the  writ, 
in  this  case,  v>-as  issued  prior  to  the  expiration  of  the  six  years,  and. 


dorsement  is  a  general  statement  of  the  nature  of  the  claim,  but  in  certain 
cases  the  plaintiff  is  permitted  to  state  the  particulars  of  the  case  in  full 
detail  on  the  back  of  the  writ,  which  is  then  said  to  be  specially  endorsed. 
When  the  writ  is  drafted,  unless  the  plaintiff  is  obliged  to  apply  for  special 
leave,  as  where  the  defendant  is  out  of  England  or  it  is  proposed  to  unite  dif- 
ferent causes  of  action,  the  writ  is  taken  to  the  central  office  of  the  high 
court  or  to  a  district  registry,  where  a  signed  copy  is  stamped  and  filed  and 
a  second  copy  impressed  witli  a  seal  and  handed  back  for  service.  The  plain- 
tiff or  his  solicitor  serves  this  by  showing  it  to  the  defendant  and  leaving 
with  him  a  correct  copy.  If  the  action  is  for  the  recovery  of  land  and  no  one 
is  in  possession,  the  writ  is  served  by  posting.  Odgers  on  Pleading  &  Prac- 
tice, ch.  i;  Stephens'  Commentaries  "(15th  ed.),  vol.  3,  p.  523. 

In  the  United  States  the  commencement  of  an  action  is  generally  regu- 
lated by  statute,  and  ^vhile  many  of  the  ancient  names  are  retained,  the 
practice  bears  little  analogy  to  the  common  law.  The  most  common  name 
for  the  writ  by  which  a  personal  action  is  commenced  is  "A  Summons."  For 
example  see,  Penn^vhiania  Act  of  Tune  i^.  1836,  P.  L.  ^68.  §  i  ;  P.  &  L. 
Dig.  (2d  ed.)  5770;  New  York  Code  of  Civ.  Proc.  §§  4t6-4TS.  In  some  juris- 
dictions suit  is  commenced  by  notice.  See  Leas  v.  Merriman,  132  Fed.  510 
(1904)  ;  McKcnna  v.  Cooper,  79  Kans.  847  (1909). 

The  praecipe  is  a  memorandum  addressed  by  the  attorney  to  the  clerk 
of  the  court  containing  directions  for  the  preparation  of  the  writ  and  an 
order  for  its  issuance.   Potter  v.  Hutchinson  M.  Co.,  87  Mich.  59  (1891). 

""Part  of  the  opinion  is  omitted.  The  court  at  this  time  consisted  of  Dur- 
fee,  C.  J.,  Hailc,  J.,  and  Staples,  T. 


284  ACTIONS 

unless  Uie  actual  receipt  of  the  service  of  it,  by  the  officer,  be  neces- 
sary to  constitute  the  commencement  of  the  action,  it  was  com- 
menced within  the  six  years.  In  the  ordinary  acceptation  of  terms, 
the  action  is  certainly  commenced  when  the  writ  is  issued,  but  to 
answer  the  intent  of  the  statute,  is  something  more  than  this  re- 
quired? If  more,  what  is  it?  Is  it  the  service  of  the  writ?  If  so, 
it  is  the  sherilT  who  commences  the  suit,  and  not  the  ])laintiff.  And 
the  ability  of  the  sheriff  to  make  the  service,  may  depend  on  a  thou- 
sand circumstances,  over  which  neither  he  nor  the  i)laintiff  may 
have  any  control ;  nay,  even  on  the  will  of  the  debtor  himself,  as  his 
absence  from  the  coimty.  We  can  not  suppose  that  the  legislature, 
in  any  event,  intended  to  make  a  man's  rights  dependent  on  such 
contingencies. 

Is  it  the  receipt  of  the  v.rit  by  the  sheriff  that  is  required  in 
order  to  constitute  the  commencement  of  an  action?  If  so,  its  com- 
mencement may  still  depend  on  contingencies  wholly  independent  of 
the  plaintiff',  as  the  sherift"'s  occasional  absence,  his  sickness,  or  his 
want  of  official  qualifications.  But  at  any  rate,  why  should  the  re- 
ceipt of  it  by  the  sheriff  be  required.  As  long  as  tlie  defendant  is 
untouched  by  the  precept,  of  what  consequence  is  it  to  him,  whether 
it  be  in  the  hands  of  the  plaintiff  or  the  sheriff  How  can  his  liabil- 
ity be  affected  by  this  or  that  event?  The  truth  is,  that  in  contem- 
plation of  law,  the  writ  is  issued  on  the  application  of  the  creditor, 
by  the  sovereign  power  of  the  state,  through  the  instrumentality  of 
its  officers.  It  is  the  state's  precept  or  command,  and  is  issued  and 
the  action  commenced,  whenever  it  is  in  the  hands  of  the  plaintiff, 
or  his  attorney,  ready  to  fulfill  its  purpose.  In  this  view  the  com- 
mencement of  the  action  depends  wholly  on  the  will,  or  the  diligence 
of  the  plaintiff.  If  he  loses  his  right,  it  is  wholly  the  result  of  his 
neglect.  It  should,  however,  be  followed  up  by  such  acts  as  show 
that  it  is  a  real  and  not  a  pretended  commencement  of  a  suit.  For  if 
there  be  an  unusual  lapse  of  time  between  the  day  of  the  date  of  the 
writ,  and  that  of  its  delivery  to  the  sheriff,  and  wholly  unexplained, 
it  might  raise  a  presumption  against  the  correctness  of  the  date, 
which  would  force  on  the  jilaintiff  the  necessity  of  proving  its  cor- 
rectness.^^ 

We  have  been  unable  to  ascertain,  that  in  any  state  with  the 
exception  of  JTonnecticut,  the  service  of  the  writ  is  considered~"the 
cTnTTTnHTcement  of  the  action.  Itjs_belieyed,  that  all  Qth^r_sjates 
consider  the  issuing  of  the  writ  as  the  comuKiu  »  rimt  of__the  suit. 
And,  iff  fact,  in  the  case  cited  from  4  Conn.  R.  1 5, 1 ,  the  court  seems 
to  build  its  decision  rather  on  the  received  oi)inion,  or  established 
practice  of  that  state,  than  on  any  judicial  decisions,  English  or 
American.^*   It  indeed  considers  a  decision  in  Massachusetts,  that  a 


''As  to  what  is  reasonable  diligence  in  endeavoring  to  obtain  service, 
compare  Marble  v.  Hinds,  67  Maine  203  (1877),  with  Tracy  v.  Grand  Trunk 
R.  Co.,  76  Vt.  313  (1904). 

'"Jencks  v.  Phelps,  4  Conn.  149  (1822).  Accord:  Sanford  v.  Dick,  17 
Conn.  213  (1845);  Bonnet  v.  Ramsay,  6  Martin  (La.)  N.  S.  129  (1827); 
Scarlc  v.  Adams,  3  Kans.  515  (1866)  ;  Detroit  Free  Press  v.  Bagg,  78  Mich. 
650  (1889)  ;  Hayton  v.  Beason,  31  Wash.  317  (1903)- 


HAIL  V.   SPENCER  285 

writ  may  be  altered  at  any  time  before  its  service,  as  recognizing  the 
service  as  the  commencement  of  the  suit.  Nobody  can  doubt  the 
right  of  the  plaintiff  to  alter  his  writ,  or,  in  other  words,  to  make  a 
new  one  of  it,  at  any  time  before  service  ;'btit  the  true  date  of  the 
writ  would  then  be  the  day  of  its  alteration,  which,  if  necessary, 
might  be  proved.  But  at  any  rate,  the  inference  in  this  case  was 
wrong.  The  service  of  the  Avrit  is  not  considered  in  Massachusetts 
the  commencement  of  the  action.  Dane  takes  it  for  granted  that  the 
suit  is  commenced  when  the  writ  is  issued.  (Digest,  v.  i,  ch.  29,  art. 
7,  sec.  3.)  And  in  Ford  v.  Phillips  (i  Pick.  202),  the  making  and 
not  the  service  of  the  writ,  is  considered  the  commencement  of  the 
suit.^° 

Since,  therefore,  the  writ  in  this  case  was  issued  within  the  six 
years,  and  since  the  issuing  of  the  writ  appears  to  me  to  have  been 
the  commencement  of  this  suit,  I  do  not  see  the  propriety  of  going 
into  a  very  wide  estimate  of  the  plaintiff's  further  diligence.  The 
law  bars  his  action  after  the  six  years,  and  it  seems  to  me  to  give 
him  the  benelit  of  the  whole  of  that  time,  without  imposing  upon 
him  the  necessity  of  making  calculations  as  to  contingencies  arising 
from  circumstances  over  which  he  has  no  control. 

"The  statute  did  not  intend  to  bar,"  says  Lord  Mansfield,  "un- 
less the  party  had  acquiesced  six  years,  but  he  who  sued  out  a  latitat 
to  bring  the  defendant  into  custody,  did  not  acquiesce,  within  the 
true  meaning  of  the  act."  Johnson  v.  Smith  (2  Burr.  961). 

Let  judgment  be  entered  for  the  plaintiff,  for  the  principal  and 
interest  of  the  note,  together  with  the  amount  of  the  account  and 
costs. '"' 


'•'So,  also,  Gardner  v.  Wchhcr,  34  Mass.  407  (1835),  but  the  writ  must  be 
"made  with  the  intention  to  have  the  same  seasonably  served."  Bunker  v. 
Shed,  49  Mass.  150  (1844). 

""  The  general  rule  is  that  a  suit  is  commenced  when  a  writ  is  sued  out 
with  the  bona  fide  intention  of  being  served.  Society  v.  Whitcomb,  2  N.  H. 
227  (1820)  ;  Burdick  v.  Green,  18  Johns.  (N.  Y.)  14  (1820)  ;  Johnson  v.  Far- 
zvell,  7  Maine  370  (1831)  ;  McClure  v  McClitre,  I  Grant  Ca.  222  (Pa.  1855)  ; 
Chapman  v.  Goodrich,  55  Vt^ssTTiSSjTrToT  the  purpose  of  stopping  the 
running  of  the  statute  of  limitations,  however,  it  is  also  generally  held  that 
the  writ  must  be  delivered  or  put  in  the  course  of  delivery  to  the  proper  offi- 
cer for  service.  Ross  v.  Luther,  4  Cow.  (N.  Y.)  158  (1825)  ;  Mason  v.  Cheny, 
47  N.  H.  24  (1S66),  particularly  instructive;  Lesure  L.  Co.  v.  Mutual  F.  I. 
Co.,  loi  Iowa  514  (1897)  ;  Huxsman  v.  Evening  Star  N.  Co.,  12  App.  Ca. 
D.  C.  586  (1898)  ;  Nichols  v.  British  American  L  Co.,  109  Ga.  621  (1900); 
County  V.  Pacific  Coast  Borax  Co.,  67  N.  J.  L.  48  (1901)  ;  Dcdenbach  v.  De- 
troit, 146  Mich.  710  (1906).  Contra:  Williams  v.  Roberts,  i  Cromp.  M.  &  R. 
676  (1835)  ;  Schroedcr  v.  Merchants'  &  M.  T.  Co.,  104  111.  71  (1882),  hold- 
ing that  the  writ  need  not  be  delivered  for  service. 

By  the  New  York  Code  of  Civil  Procedure,  §§  398,  399,  an  action  is 
commenced  when  the  summons  is  served  on  the  defendant.  But  an  attempt 
to  commence  an  action  is  equivalent  where  the  summons  is  delivered  to  the 
sheriff  with  the  intent  that  it  shall  be  actually  served,  followed  by  actual 
service,  or  service  by  publication,  within  sixty  days  after  the  expiration  of 
the  time  limited  for  the  commencement  of  the  action.  See  Riley  v.  Riley,  141 
N.  Y.  409  (1894). 

In  equity  see  Miller  v.  Rich,  204  111.  444  (1903)  ;  United  States  v.  Miller, 
163  Fed.  444  (1908). 

In  England  under  the  rules  of  the  Supreme  Court,  order  VIII,  rule  i, 


286  ACT  KINS 


IKSSK  ROMAIX  :•.   T.OAKI)  ()|.^  COMMISSIONERS  OF 

AirscATixi-:  au'XTv. 

SlTKl'Ml-:    Coi'UT   Ol'    IciWA,    iS.].}. 
Morris's  (/ou'a)  ^f^j. 

This  was  an  action  of  trcsi)ass  brouij^ht  by  the  board  of  commis- 
sioners of  the  county  of  Muscatine,  trustees  of  a  school  section, 
against  Jesse  Romaine.  Upon  the  summons  issued  and  returned  in 
this  case,  there  was  the  following: 

"I  hereby  authorize  George  Hunt  to  serve  the  within  summons 
according  to  law,  for  and  at  my  risk. 

"James  Davis,  Sheriff.  M. 

'"Septcmlier  28,   1840." 

"As  per  authority  of  James  Davis,  sheriff  of  Muscatine  county, 
T  served  the  within,  on  the  26th  day  of  September,  by  informing 
him,  the  defendant,  that  I  had  a  writ  for  him ;  he,  the  defendant, 
immediately  fled  from  my  presence,  I  then  left  a  copy  of  the  within 
in  the  care  of  Benjamin  Brooks,  he  being  a  man  person  over  the 
age  of  fifteen  years,  and  said  Brook's  house  being  defendant's  usual 
place  of  residence. 

"G.  W.  Hunt. 

"Returned  October  14,  1840." 

The  defendant  moved  to  quash  the  summons : 

(i.)  Because  it  was  not  served  upon  the  defendant  according 
to  law.  (2.)  That  there  had  been  no  service  upon  the  defendant  by 
an  officer  of  that  court  or  any  other  person  legally  authorized. 
Which  motion  w^as  overruled.  Thereupon  came  a  jury  to  inquire 
into  and  assess  the  damages,  and  a  verdict  and  judgment  was  ren- 
dered for  the  plaintiff  for  sixty-eight  dollars  and  ninety  cents. 

To  reverse  this  judgment  the  defendants  belou'  sued  out  their 
writ  of  error. 

Mason,  C.  J.:  The  service  of  the  summons  in  this  case  was 
clearly  defective,  and  there  was  no  appearance  to  cure  that  defect. 
The  return  is  dated  October  14,  1840.  We  can  not  find  tliat  at  that 
date  there  v.as  any  other  than  a  personal  service  provided  for.  On 
the  31st  of  December,  following,  a  law  was  passed  authorizing  a 
service  by  copy  where  the  defendant  can  not  be  found,  but  the  re- 
turn in  this  case  was  wholly  irregular  under  that  law. 

In  the  first  place  the  certificate  of  a  ])erson,  not  a  sworn  officer, 
is  not  a  sufficient  return ;  secondly,  it  does  not  appear  to  have  been 
left  at  the  place  of  residence  of  the  defendant,  but  merely  with 
Benjamin  Brooks;  and,  thirdly,  the  contents  of  the  writ  do  not  ap- 
pear to  have  been  stated  to  said  Brooks.    In  the  absence  of  any 


a  writ  not  served  may  be  renewed  on  application  to  tlie  court,  but  the  prac- 
tice is  not  to  renew  where  the  plaintiff's  claim  would,  but  for  such  renewal, 
be  barred.   Ifcuctt  v.  Barr,  L.  R.  (1891),  i  Q.  B.  Div.  98. 


CASSIDV  V.  LElTCir  287 

statute  on  the  subject,  service  must  be  personal.  Where  the  statute 
provides  a  substitute,  the  terms  and  conditions  of  that  substitute 
must  be  complied  with.'^^ 
Reversed. 


CAS  SIDY  V.  LEITCH.  X 

New  York  Common  Pleas,  1877. 

2  Abbott's  .Kew  Cases  315.'" 

Trial  by  the  court. 

Van  Hoesen,  J. :  This  action  is  founded  upon  a  judgment  re- 
covered in  the. .state,  of  Louisiana.  The  Louisiana  suTt  was  begun 
and  judgment  rendered  therein  in  the  year  1869.  At  the  commence- 
ment of  the  suit,  and  for  some  time  pr~Toi~as  well  as  subsequent 
thereto,  the  defendant  was  domiciled  at  the  corner  of  Rampart  and 
Terpsichore  streets  in  the  city  of  New  Orleans.  He  was  absent 
from  home  when  the  suit  was  begun,  and  the  citation  and  the  peti- 
tion (papers  which  correspond  to  the  summons  and  the  complaint 
of  our  New  York  practice)  were  served  upon  him  by  the  sheriff 
leaving  a  copy  of  them  at  the  domicile  of  the  defendant  with  his  (the 
defendant's)  wife,  who  vvas  a  white  person  above  the  age  of  14 
years,  and  who  dwelt  in  the  same  domicile  with  said  defendant. 

The  return  of  the  sheriff  is  in  strict  conformity  with  the  law 
of  Louisiana  as  expounded  by  the  courts  of  that  state  (Code  of 
Practice,  sees.  189,  190,  201 ;  Kendrick  v.  Kendrick,  19  La.  38). 

The  defendant,  as  has  been  said,  was  domiciled  in  Louisiana, 
and  owed  allegiance  to  that  state,  and  submission  to  its  laws. 

The  manner  of  serving  process  must  necessarily  be  regulated  by 
everv  country  for  itself;  and  if  a  state  permits  process  to  be  served 
upon  orie  of  its  own  citizens  by  the  leaving  of  it  in  his  absence  at 
his  domicile  with  an  adult  member  of  his  household,  that  method  of 
service  is  not  so  repugnant  to  the  principles  of  natural  justice  that 


^  "In  making  service  of  the  summons,  and  in  the  return  of  such  service, 
the  provisions  of  the  statute  must  be  and  must  appear  to  have  been  substan- 
tially observed  and  followed  by  the  officer,  otherwise  the  proceedings  can  not 
be  supported."  People  v.  Bernal,  43  Cal.  385  (1872);  Bennet  v.  Hozvard,  2 
Day  (Conn.)  416  (1807);  Fitlcher  v.  Lyon,  4  Ark.  449  (1842);  Wilsjn  v. 
Hayes,  18  Pa.  354  (1852)  ;  Hynek  v.  Louis  and  Clara  Englest,  11  Fov^'a'  210 
("i8'6or;  Water  Lot  Co.  v.  Bank  of  Bninszi'ick,  30  Ga.  68t  (i860)  ;  Maker  v. 
Bull,  26  111.  348  (1861)  ;  Coffee  v.  Gates,  28  Ark.  43  (1872)  ;  Hiller  v.  Burling- 
ton &  M.  R.  Co.,  70  N.  Y.  223  (1877)  ;  People  v.  Judge  of  Superior  Court,  38 
Mich.  310  (1878)  ;  Blake  v.  Smith,  67  N.  H.  182,  38  Atl.  16  (1892)  ;  Late  v. 
Grammes,  158  111.  492,  41  N.  E.  1080  (1895);  Savings  Bank  v.  Anthier,  52 
Minn.  98,  53  N.  \V.  812,  18  L.  R.  A.  498  (1892)  ;  Eisenhofcr  v.  New  Yorker 
Z.  P.  Co.,  91  App.  Div.  (N.  Y.)  94,  86  N.  Y.  S.  438  (1904)  ;  Warrick  v.  Mc- 
Cormick,  150  Ky.  800  (1912).  The  statutory  provisions  for  personal  service 
and  substitutes  therefor  in  the  various  states  differ  greatly  in  their  require- 
ments and  must  be  consulted  for  local  details.  See  the  various  local  works 
on  practice  and  Elliott's  General  Practice,  ch.   10. 

""The  arguments  of  counsel  and  part  of  the  opinion  are  omitted. 


j8S  At  rioNs 

a  foreign  tribunal  shouM  refuse  to  recoj^nize  it  and  treat  a  sentence 
founded  on  it  as  a  nullity  (3  Burjje  l-'oreij^n  and  Colonial  Laws, 
1056). 

A  foreis^n  jud.nnient  rendered  atijainst  a  oili/en  of  the  state  1n 
which  it  was  i)ronounccd.  stands  on  a  very  different  footing  from  a 
forei;:fn  judgment  against  one  who  owed  no  allegiance  to  and  was  not 
subject  to  the  jurisdiction  of  the  state  in  which  it  was  rendered. 

In  order  to  make  the  answer  in  this  case  sufficient,  there  should 

the  added  to  it  allegations  showing  that  the  defendant  was  not  domi- 

[ciled  in  Louisiana  or  subject  to  the  laws  of  that  state,  or  that  the 

[judgment  is  not  binding  there,  or  that  it  is  contrary  to  natural  jus- 

^tice.    As  a  plea  in  bar  the  answer  is  fatally  defective. 

'      After  reading  the  testimony  of  the  defendant,  no  surprise  will  be 

felt  at  his  omission  to  contest  the  plaintiff's  claim.   I  think  judgment 

should  be  rendered  in  favor  of  the  plaintiff  for  the  sum  claimed  in 

the  complaint. "•'' 

\'erdict  for  i)laintii"f  for  $9,107.85. 


WALLACE  v.  UNITED  ELECTRIC  COMPANY.    >J 
Supreme  Court  of  Pennsylvania,  1005. 


211  Pa.  473. 

Appeal  bv  plaintiff  from  a  decree  of  Court  of  Common  Pleas 
No.  I,  Philadelphia,  setting  aside  service  of  a  bill  in  equity  for  dis- 
covery and  an  accounting  in  the  case  of  Albert  E.  Wallace  v.  United 
Electric  Company  of  Nezv  Jersey  and  United  Gas  Improvement 
Company.''*" 

Brown,  ].:  \  'Iccrco  for  discovery  is  a  personal  one  to  be  en- 
forced a_gain.-i  i!-  i'ci-(i;i  ilccrccd  to  make  it ;  and,  if  the  appellee 
"waT~pfoperly  Ijrought  within  the  jurisdIctTon  of  the  court  below 
personaliv.  a' decree  that  it  make  discovery  could  be  enforced  against 
it  personally  bv  the  appellant  as  his  first  move  to  obtain  the  ultimate 


'•'Substituted  service  in  actions  in  personam  is  a  departure  from  the 
common-law  rule  requiring  personal  service  and  the  statute  authorizing:  such 
service  must  be  followed  strictly.  But  when  the  statute  is  complied  with, 
the  general  rule  is  that  substituted  service  on  a  resident  defendant  is  equiva- 
lent to  personal  service  and  warrants  a  personal  judgment.  19  Ency.  PI. 
&  Pr.  624;  32  Cyc.  461 ;  ^iijac  v.  Mm^mL.3  Yeates  (Pa.)  258  (1801)  ;  Con- 
well  v.  Ativood,  2  Ind.  289  (1S50T;  Hope  v.  Hope,  4  DeG.  M.  &  G.  328  (1854)  ; 
Sturgis  v.  Fay,  16  Ind.  429,  79  Am.  Dec.  440  (1861)  ;  Beard  v.  Beard,  21  Ind. 
321  (1863)  ;  Knox  v.  Miller,  18  Wis.  397  (1864)  ;  Castlcton  v.  Wcyhridue,  46 
Vt.  474  (1874)  ;  Ditftos  V.  Burlinciham,  34  L.  T.  (N.  S.)  688  (1876)  ;  Betan- 
court  V.  Eberlin,  71  Ala.  461  (1882)  ;  Dul'al  v.  Johnson,  39  Ark.  182  (1882)  ; 
Giles  V.  ?Jicks,  45  Ark.  271  (1885)  ;  People  v.  House,  4  Utah  382,  10  Pac.  843 
(1886)  ;  Hurlbnt  V.  Thomas,  5s  Conn.  181,  10  Atl.  5.56,  3  Am.  St.  43;  Missouri, 
K.  &  T.  R.  Co.  V.  Norris,  61  Minn.  2S6  (189.S)  ;  Jay  v.  Bndd,  L.  R.  (1898),  l 
Q,  E.  12;  Nelson  v.  Chicago,  B.  &  Q.  R.  Co.,  225  111.  197  (1907)  ;  Atchi.wn 
Co.  V.  Challiss.  65  Kans.  179  (1902)  ;  Park  Land  Imp.  Co.  v.  Lane,  106  Va. 
304  (1906)  ;  Abbott  V.  Abbott,  loi  Maine  343  (1906). 

"'  A  part  of  the  opinion  of  the  court  is  omitted. 


WALLACE  v.   ELECTRIC  COMPANY  289 

relief  asked  for.  In  view  of  this,  the  proceeding  must,  as  was  held 
by  the  learned  judge  below,  be  regarded  as  in  personaui  as  to  the 
appellee;  and  the  question  whether  the  Act  of  April  6,  1859,  P.  L. 
387,  even  if  it  does  authorize  extra-territorial  service  of  process 
from  a  court  of  this  state,  is  effectual  to  acquire  jurisdiction  over 
the  person  of  a  defendant  residing  and  served  in  anotlier  state,  is 
not  an  open  one. 

Before  the  passage  of  that  act,  Chief  Justice  Gibson,  in  discuss- 
ing the  attempt  to  acquire  jurisdiction  over  the  person  of  the 
defendant  by  the  extra-territorial  service  of  process,  said  in  Steel 
V.  Smith,  7  W.  &  S.  447:  "Jurisdiction  of  the  person  or  property 
of  an  alien  is  founded  on  its  presence  or  situs  within  the  territory. 
Without  this  presence  or  situs,  an  exercise  of  jurisdiction  is  an  act 
of  usurpation.  An  owner  of  property  who  sends  it  abroad  subjects 
it  to  the  regulations  in  force  at  the  place  as  he  would  subject  his 
person  by  going  there.  The  jurisdiction  of  either  springs  from  the 
voluntary  performance  of  an  act,  of  whose  consequence  he  is  bound 
to  take  notice.  But  a  foreigner  may  choose  to  subject  his  property, 
reserving  his  person;  and  it  is  clear  that  jurisdiction  of  property 
does  not  draw  after  it  jurisdiction  of  the  owner's  person;  conse- 
quently, there  can  be  no  rightful  action  by  the  tribunal  on  the 
foundation  of  jurisdiction  acquired  by  the  attachment  of  property, 
which  reaches  beyond  the  property  itself.  What,  then,  is  the  right 
of  a  state  to  exercise  authority  over  the  persons  of  those  who  be- 
long to  another  jurisdiction,  and  who  have,  perhaps,  not  been  out  of 
the  boundaries  of  it?  'The  sovereignty  united  to  domain,'  says 
Vattel,  'establishes  the  jurisdiction  of  the  nation  over  its  territories 
or  the  countries  which  belong  to  it.  It  is  its  province,  or  that  of  its 
sovereign,  to  exercise  justice  in  all  places  under  its  jurisdiction,  or 
the  county  which  belongs  to  it;  to  take  cognizance  of  the  crimes 
committed  and  the  differences  that  arise  in  the  country.'  'On  the 
other  hand,'  adds  Mr.  Justice  Story  (Confl.  ch.  14,  sec.  539),  no 
sovereignty  can  extend  its  process  beyond  its  own  territorial  limits, 
to  subject  other  persons  or  property  to  its  judicial  decisions." 

The  first  section  of  the  Act  of  6th  April,  1859,  authorizes  any 
court  of  this  commonwealth  having  equity  jurisdiction,  in  any  suit 
in  equity  instituted  therein  concerning  property  within  the  jurisdic- 
tion of  the  said  court,  to  order  and  direct  that  any  subpoena  or  other 
process  to  be  had;, in  .such_su]t_be^ served  on  any  defendant  therein 
ThTfTTesTcIIng  or  being  out  of  the  jurisdiction  of  said  court  wherever 
he,  she  or  they  may  resicle  or  be  found.'  It  further  provides  for  the 
pfobr"of~service  both  within  and  without  the  limits  of  the  United 
States.  It  was  held  in  Coleman's  Appeal,  75  Pa.  41,  that  process 
thus  issued  in  this  state  and  served  in  another  state  on  a  resident 
thereof  could  not  give  jurisdiction  of  the  person  thus  served."  In 
the  federal  courts  the  same  view  is  entertained.  By  a  statute  of  the 
state  of  Oregon  provision  was  made  for  service  upon  a  nonresident 
by  publication.  In  Pennoyer  v.  Neff,  95  U.  vS.  714,  it  appeared  that 
judgment  had  been  entered  against  Neff  on  process  which  the  plain- 

19 — Civ.  Prog. 


290  ArruiNs 

tiiY  inulciti)i)k  to  have  served  upon  him  extra-territorially,  by  publi- 
cation, in  conformity  to  the  statute.  Juclj^nient  was  entered  in  the 
l»roccedins;  a!::ainst  liim,  and,  in  holding;  that  he  was  not  hound  by 
lit,  through  Mr.  justice  FicUl,  it  was  said:  "Where  the  entire  object 
lof  the  action  is  to  determine  the  jiersonal  rights  and  obHgations  of 
Ithc  defendants,  that  is,  where  the  suit  is  merely  in  personam,  con- 
[structive  service  in  this  form  upon  a  nonresident  is  ineffectual  for 
any  purpose.  Process  from  the  tribunals  of  one  state  can  not  run 
into  another  state,  and  summon  ])artics  there  domiciled  to  leave  its 
territory  and  respond  to  proceedings  against  them."  In  the  Circuit 
Court  of  the  United  States,  for  the  western  district  of  this  state,  in 
the  case  of  McHcnry  v.  Nexv  York  P.  &  O.  R.  R.  Co.,  25  Fed.  Repr. 
65,  the  Court  of  Common  Pleas  of  Westmoreland  County  had  made 
an  order  of  service  on  aliens  in  pursuance  of  the  act  of  1859,  but 
it  was  said  by  the  circuit  court:  "It  is,  indeed,  true  that  pursuant 
-to  an  order  of  the  court  of  common  pleas,  claimed  to  be  authorized 
by  the  Pennsylvania  Act  of  April  6,  1859,  P.  L.  387,  process  has 
been  served  on  those  defendants  in  England,  where  they  reside,  but, 
clearly,  such  extra-territorial  service  was  ineffectual  to  bring  them 
within  the  jurisdiction  of  the  court  or  make  them  parties  to  the 
suit." 

The  service  upon  the  appellee  was  inetiectual  to  bring  it  into  this 
jurisdiction,  and  the  order  of  the  court  below  setting  it  aside  was 
properly  made.  That  order  is  now  affirmed  and  this  appeal  dismissed 
at  the  costs  of  appellant.''^ 


'''^Buchanan  v.  Rucker,  9  East  192  (1808)  ;  Bissell  v.  Briggs,  9  Mass.  462, 
6  Am.  Dec.  88  (1813);  Borden  v.  Fitch,  15  Johns.  (N.  Y.)  121,  8  Am.  Dec. 
225  (1818)  ;  Skinner  v.  McDaniel,  4  Vt.  418  (1832)  ;  Gifford  v.  Thorn,  7  N.  J. 
Eq.  90  (1848)  ;  Litchfield  v.  Burwell,  5  How.  Pr.  (N.  Y.)  341  (1850)  ;  Harris 
V.  Hardeman,  14  How.  (U.  S.)  334,  14  L.  ed.  444  (1852)  ;  Cooper  v.  Reynolds, 
10  Wall.  308,  19  L.  ed.  931  (1870)  ;  Thompson  v.  Whitman,  18  Wall.  (U.  S.) 
457  (1873)  ;  Isett  v.  Stuart,  80  111.  404,  22  Am.  Rep.  194  (1875)  ;  Pennoyer  v. 
^'eff,  95  U.  S.  714,  24  L.  ed.  565  (1877)  the  leading  case;  Harkness  v.  Hyde, 
98  U.  S.  476,  25  L.  ed.  237  (1878)  ;  Qitarl  v.  Abbett,  102  Ind.  233,  i  N.  E.  476, 
52  Am.  Rep.  662  (1885);  Heuntson  v.  Fabre,  L.  R.  (1888),  21  Q.  B.  6; 
Rand  v.  Hanson,  154  Mass.  87,  28  N.  E.  6,  12  L.  R.  A.  574,  26  Am^  St.  210 
(1891);  Anheuser-Busch  Brew.  Assn.  v.  Peterson,  41  Nebr.  897  (1894); 
Cabanne  v.  Graf,  87  Minn.  510,  92  N.  W.  461,  59  L.  R.  A.  735,  94  Am.  St.  722 
(1902)  ;  First  Nat.  Bk.  v.  Eastman,  144  Cal.  487,  77  Pac.  1043,  103  Am.  St.  95 
(1904)  ;  Hildreth  v.  Thibodeau,  186  Mass.  83,  71  N.  E.  111,104  Am.  St.  560 
(1904)  ;  Haddock  v.  Haddock,  201  U.  S.  562,  50  L.  ed.  867  (1905)  ;  Martin  v. 
Martin,  214  Pa.  389  (1906);  Wetmore  v.  Karrick,  205  U.  S.  141  (1906);' 
Brown  V.  Fletcher,  210  U.  S.  82  (1907)  ;  Emanuel  v.  Symon,  L.  R.  (1908),  I 
K.  B.  302;  Loii'rie  v.  Castle,  198  Mass.  82  (1908). 

An  appearance  in  the  case,  or  its  equivalent,  is  a  waiver  of  the  defective 
service.  Kecler  v.  Kccler,  24  Wis.  622  (1869)  ;  Pearce  v.  Bogert,  10  Daly  (N. 
Y.)  277  (1881);  Allured  v.  Voller,  107  Mich.  476,  65  N.  W.  285  (1895); 
Stamcv  v.  Barkley_^2ii  Pa.  313,  60  Atl.  991  (1905).  As  to  whether  the  ac- 
knowledgment  alone  of  service  outside  the  jurisdiction  will  afford  a  basis 
for  a  personal  judgment,  compare  Richardson  v.  Smith,  11  Allen  (Mass.) 
134  (185?)  ;  Johnson  v.  Monell,  13  Iowa  300  (1862)  ;  Clark  v.  Tull,  113  Iowa 
143,  84  X.  W.  1030  (1901)  with  Litchfield  v.  Burwell,  5  How.  Pr.  (N.  Y.) 
341  (1850)  ;  Weatherbee  v.  U'eatherbee,  20  Wis.  499  (1866)  ;  Scott  v.  Noble, 
"2  Pa.  115,   13  Am.  Rep.  663   (1872)  ;  Smith  v.   Chilton,  77  Va!  535   (1883)  ; 


GOLDEY  Z-.   MORNING  NEWS  29 1 

GOLDEY  z:  AIORNING  NEWS. 

Supreme  Court  of  the  United  States,  1895. 

156  U.  S.  518. 

This  was  an  action  for  a  libel,  claiming  damages  in  the  sum  of 
Sioo,ooo,  brought  in  the  Supreme  Court  of  the -state  of  New  York 
for  the  county  of  Kings,  by  Catherine  Goldey,  a  citizen  of  the 
state  of  New  York,  against  The  Morning  News  of  New  Haven,  a 
corporation  organized  and  existing  under  the  laws  of  the  state  of 
Connecticut,  and  carrying  on  business  in  that  state  only,  and  having 
no  place  of  business,  officer,  agent  or  property  in  the  state  of  New 
York. 

The  action  was  commenced  January  4,  1890,  by  personal  service 
of  the  summons  in  the  city  and  state  of  New  York  upon  the  presi- 
dent of  the  corporation,  temporarily  there,  but  a  citizen  and  resident 
of  the  state  of  Connecticut;  and  on  January  24,  1890,  upon  the 
petition  of  the  defendant,  appearing  by  its  attorney  specially  and 
for  the  sole  and  single  purpose  of  presenting  the  petition  for  re- 
moval, was  removed  into  the  Circuit  Court  of  the  United  States  for 
the  Eastern  District  of  New  York,  because  the  parties  were  citizens 
of  different  states,  and  the  time  within  which  the  defendant  was  re- 
quired by  the  laws  of  the  state  of  New  York  to  answer  or  plead  to 
the  complaint  had  not  expired. 

In  the  Circuit  Court  of  the  United  States  the  defendant,  on  Feb- 
ruary 5,  1890,  appearing  by  its  attorney  specially  for  the  purpose  of 
applying  for  an  order  setting  aside  the  summons  and  the  service  there- 
of, filed  a  motion,  supported  by  affidavits  of  its  president  and  of  its 
attorney  to  the  facts  above  stated,  to  set  aside  the  summons  and  the 
service  thereof,  upon  the  ground  "that  the  said  defendant,  being  a  cor- 
poration organized  under  the  laws  of  the  state  of  Connecticut,  where 
it  solely  carries  on  its  business,  and  transacting  no  business  within 
the  state  of  New  York,  nor  having  any  agent  clothed  with  authority 
to  represent  it  in  the  state  of  New  York,  can  not  legally  be  made  a 
defendant  in  an  action  by  a  service  upon  one  of  its  officers  while 
temporarily  in  said  state  of  New  York."  Thereupon,  that  court, 
after  hearing  the  parties  on  a  rule  to  show  cause  why  the  motion 
should  not  be  granted,  "ordered  that  the  service  of  the  summons 
herein  be,  and  the  same  is  hereby,  set  aside  and  the  same  declared 
to  be  null  and  void  and  of  no  effect,  and  the  defendant  is  hereby 
relieved  from  appearing  to  plead  in  answer  to  the  complaint  or  other- 
wise herein."  42  Fed.  Rep.  112.  The  plaintiff  sued  out  this  writ  of 
error. ^^ 

Gray,  J. :  This  v^rit  of  error  presents  the  question  whether,  in  a 
personal  action  against  a  corporation  which  neither  is  incorporated 


Riker  v.  Vaiighan,  23  S.  Car.  187  (1885);  Godivin  v.  Monds,  106  N.  Car. 
448,  10. S.  E.  1044  (1890)  ;  White  v.  White,  66  W.  Va.  79  (1909). 

As  to  proceedings  in  rem,  see  the  chapter  on  Judgments,  sec.  7  (b)  infra. 

"  Only  so  much  of  the  opinion  as  relates  to  the  service  of  process  is 
printed. 


292  ACTIONS 

nor  docs  business  within  the  slate,  nor  has  any  aj^ent  or  property 
tliercin,  service  of  the  summons  upon  its  president,  temporarily 
within  the  juris(Hction,  is  suflicient  service  upon  the  corporation. 

L^pon  the  cpiestion  of  the  \a]idity  of  such  a  service  as  was  made 
in  this  case,  there  has  been  a  dirfcrence  of  opinion  between  the  courts 
of  the  state  of  New  York  and  the  Circuit  Courts  of  the  United 
States.  Such  a  service  has  been  held  valid  by  the  Court  of  Appeals 
of  New  York.  Miller  v.  Burlin<iton  &  Missouri  Railroad,  70  N.  Y. 
22T^ ;  Pof^e  V.  7Vr;v  Haute  Co.,  87  N.  Y.  137.  It  has  been  held  invalid 
by  the  Circuit  Courts  of  the  United  States,  held  within  the  state  of 
New  York ;  Good  Hope  Co.  v.  Raikvay  Barb  Fejicing  Co.,  23  Blatch- 
ford  43;  Goldey  v.  Morning  News,  42  F'ed.  Rep.  112;  Clews  v. 
Woodstock  Co.,  44  Fed.  Rep.  31  ;  Bentlif  v.  London  &  Colonial 
Corporation,  44  Fed.  Rep.  667;  .hnerican  Wooden  Ware  Co.  v. 
Stent,  63  Fed.  Rep.  676 ;  as  well  as  in  other  circuits.  Elgin  Co.  v. 
.Itcliison,  etc.,  Raihcoay,  24  Fed.  Rep.  866;  United  States  v.  Amer- 
ican Bell  Tel.  Co.,  29  Fed.  Rep.  17;  Carpenter  v.  Westinghouse  Co., 
32  Fed.  Rep.  434 ;  St.  Lonis  Co.  v.  Consolidated  Barb  Wire  Co.,  32 
Fed.  Rep.  802 ;  Reif snider  v.  American  Publishing  Co.,  45  Fed.  Rep. 
433;  Fidelity  Co.  v.  Mobile  Roilzvay,  53  Fed.  Rep.  850.  It  becomes 
necessary,  therefore,  to  consider  the  question  upon  principle,  and  in 
the  light  of  the  previous  decisions  of  this  court. 

It  is  an  elementary  ])rincij)le  of  jurisprudence,  that  a  court  of 
justice  can  not  acquire  jurisdiction  over  the  person  of  one  who  has 
no  residence  within  its  territorial  jurisdiction,  except  by  actual 
service  of  notice  within  the  jurisdiction  upon  him  or  upon  some  one 
authorized  to  accept  service  in  his  behalf,  or  by  his  waiver,  by  gen- 
eral appearance  or  otherwise,  of  the  want  of  due  service.  Whatever 
effect  a  constructive  service  may  be  allowed  in  the  courts  of  the 
same  government,  it  can  not  be  recognized  as  valid  by  the  courts 
of  any  other  government.  D'Arcy  v.  Ketclmm,  11  How.  165; 
Knozvles  v.  Gaslight  Co.,  19  Wall.  58;  Hall  v.  Lonning,  91  U.  S. 
160;  Pennoyer  v.  Neff,  95  U.  S.  714;  York  v.  Te.vas,  137  U.  S.  15; 
Wilson  V.  Seligman,  144  U.  S.  41. 

For  example,  under  the  provisions  of  the  Constitution  of  the 
United  States  and  of  the  acts  of  congress,  by  which  judgment  of  the 
courts  of  one  state  are  to  be  given  full  faith  and  credit  in  the  courts 
of  another  state,  or  of  the  XJnited  States,  such  a  judgment  is  not 
entitled  to  any  force  or  efifcct,  unless  the  defendant  was  duly  served 
with  notice  of  the  action  in  which  the  judgment  was  rendered,  or 
waived  the  want  of  such  notice.  Constitution,  art.  4,  sec.  i ;  Acts 
of  May  26,  1790,  ch.  11,  i  Stat.  122,  and  March  27,  1804,  ch.  56,  2 
.Stat.  299;  Rev.  Stat.  sec.  905;  Knowles  v.  Gaslight  Co.  and  Pen- 
noyer V.  A'^ri^^,  above  cited. 

If  a  judgment  is  rendered  in  one  state  against  two  partners. 
jointly,  after  serving  notice  upon  one  of  them  only,  under  a  statute 
of  the  state  providing  that  such  service  shall  be  sufficient  to  author- 
ize a  judgment  against  both,  yet  the  judgment  is  of  no  force  or 
efifcct  in  a  court  of  another  state,  or  in  a  court  of  the  United  States, 
against  the  partner  who  was  not  served  Avith  process.  D'Arcy  v. 
Ketchum,  and  Hall  v.  Lanning,  above  cited. 


DUN  LAP  Z'.   CODY  293 

So  a  judgment  rendered  in  a  court  of  one  state,  against  a  cor- 
poration neither  incorporated  nor  doing  business  within  the  state, 
must  be  regarded  as  of  no  vaUdity  in  the  courts  of  another  state,  or 
of  the  United  States,  unless  service  of  process  was  made  in  the 
tirst  state  upon  an  agent  appointed  to  act  there  for  the  corporation, 
and  not  merely  upon  an  officer  or  agent  residing  in  another  state, 
and  only  casually  within  the  state,  and  not  charged  with  any  busi- 
ness of  the  corporation  there. °'' 

Judgment  affirmed. 


DUNLAP  v.  CODY.  . 

Supreme  Court  of  Iowa,  1871.  ^ 

31  lozva  260.°* 

Suit  lujon  a  judgment  rendered  by  the  Circuit  Court  of  Hancock 
Coimfy,  Illihois,  for  the  sum  of  $1,145.31.  The  defendant  in  answer 
denies  any  indebtedness,  and  alleges  that  the  note  upon  which  judg- 
mehtTvas  obtained  was  executed  in  Ohio  on  the  5th  day  of  March, 
1855,  and  at  the  time  suit  was  instituted  thereon  was  barred  by  the 
statute  of  limitations ;  that  plaintifFs  and  their  attorneys,  in  order 
to'avoid  the  statute  of  limitations  of  the  state  of  Iowa,  and  obtain 
jurisdiction  of  the  person  of  defendant  in  the  state  of  Illinois,  fraud- 


^' Lafayette  Ins.  Co.  v.  French,  18  How.  (U.  S.)  404,  i5  L-  ed.  451 
(1855)  ;  St.  Clair  v.  Cox,  106  U.  S.  350,  27  L.  ed.  222  (1882)  ;  Fitzgerald  Co. 
V.  Fitzgerald,  137  U.  S.  98,  34  L.  ed.  608  (1890)  ;  Mexican  Central  R.  Co.  v. 
Pinkney,  149  U.  S.  194,  37  L.  ed.  699  (1893)  ;  In  re.  Hohorst,  150  U.  S.  653 
(1893)  ;  Conlcy  v.  Mathieson  Alkali  IVorks,  190  U.  S.  406  (1903)  ;  Remington 
V.  Central  Pacific  R.  Co.,  198  U.  S.  95,  49  L.  ed.  959  (1905);  Peterson  v. 
Chicago,  R.  I.  &  P.  R.  Co.,  205  U.  S.  364  (1906);  Hcrndon-Carter  Co.  v. 
N orris,  224  U.  S.  496  (1912)  ;  St.  Louis  S.  IV.  R.  Co.  v.  Alexander,  227  U.  S. 
218  (1913)  ;  Dobson  v.  Farbenfabriken  Co.,  206  Fed.  125  (1913)  ;  Ostrander  v. 
Deerfield  L.  Co.,  206  Fed.  540  (1913).  In  International  H.  Co.  v.  Common- 
wealth, 234  U.  S.  579  (1914)  it  is  said  per  Day,  J.:  "For  some  purposes  a 
corporation  is  deemed  to  be  a  resident  of  the  state  of  its  creation,  but  when 
a  corporation  of  one  state  goes  into  another  in  order  to  be  regarded  as  within 
the  latter,  it  must  be  tliere  by  its  agents  authorized  to  transact  its  business  in 
that  state.  The  mere  presence  of  an  agent  upon  personal  affairs  does  not 
carry  the  corporation  into  the  foreign  state.  It  has  been  frequently  held  by 
this  court,  and  it  can  no  longer  be  doubted  that  it  is  essential  to  the  rendi- 
tion of  a  personal  judgment  that  the  corporation  be  doing  business  within 
the  state.  *  *  *  Each  case  must  depend  upon  its  own  facts,  and  their  con- 
sideration must  show  that  this  essential  requirement  of  jurisdiction  has  been 
complied  with  and  that  the  corporation  is  actually  doing  business  within  the 
state."  See  further  Phillihs  v.  Library  Co  .  141  Pa.  462,  21  Atl.  640,  23  Am. 
St.  304  (1891)  ;  Foster  v.  Charles  Bctcher  Lumber  Co.,  5  S.  Dak.  57,  58  N.  W. 
9,  23  L.  R.  A.  490,  49  Am.  St.  859  (1894)  ;  Doctor  v.  Desmond,  80  N.  J.  Eq. 
77  (1912)  ;  Kendall  v.  Orange  Judd  Co.,  118  Minn.  1.  (1912)  ;  Watkins  Land 
Mtg.  Co.  V.  F.lliott,  62  Kans.  291  (1900)  ;  Payne  v.  Fast  Union  Lumber  Co., 
109  La.  706  (1903)  ;  Grant  v.  Cananea  C.  Co.,  189  N.  Y.  241  (1907)  ;  White- 
hurst  y.  Kerr,  153  N.  Car.  76  (1910)  ;  Fldred  v.  Palace  Car  Co.,  105  Fed.  455, 
45  C.  C.  A.  T  ( 1900)  and  note.  As  to  service  of  process  on  corporations,  gen- 
erally, see  Thompson  on  Corporations  §§  2990,  3050,  and  the  local  statutes. 

"^  Part  of  the  statement  of  facts  and  opinion  of  the  court  are  omitted. 


294  A(.ri»).\s 

iilcntly  rcprcscntod  to  dcfondaiU  that  one  Miatt,  with  others,  was 
about  to  erect  an  elevator  at  Carthaj^e,  in  Hancock  County,  lUinois, 
to  cost  between  $30,000  and  l{^40,ooo,  and  induced  defendant,  who 
lis  a  carpenter,  to  go  to  Hancock  County  for  the  purpose  of  looking 
f  at  the  site  of  said  elevator.  That  they  had  the  sheriff  of  Hancock 
'  County  in  waiting,  and  that,  as  soon  as  defendant  stepped  from  the 
cars  at  Carthage,  the  said  sheriff  served  him  with  a  summons  in 
said  cause.  That  the  proposal  of  building  the  elevator  was  a  pre- 
tense made  for  the  purpose  of  inducing  defendant  to  go  to  Illinois 
where  plaintiff'  could  see  him,  and  avoid  the  bar  of  the  statute  of 
limitations  of  the  state  of  Iowa.  To  this  answer  the  plaintiff  de- 
murred. 

The  demurrer  was  overruled  and  judgment  entered  for  defend- 
ant with  costs.    Plaintiff's  appeal. 

Day,  C.  J.:  Do  the  means  used  to  oi)tain  jurisdiction  of  the 
person  of  defendant,  in  the  courts  of  Illinois,  amount  to  fraud?  It 
\  would  seem  that  this  question  scarcely  needs  discussion.  Fraud 
(  consists  in  the  suggestio  falsi  or  the  suppressio  veri.  Both  exist  here. 
/  The  false  statement  was  made  to  defendant  by  plaintiff's  attorney 
'  that  Hiatt  and  others  were  about  to  erect  an  elevator  in  Hancock 
County,  Illinois,  to  cost  between  $30,000  and  $40,000;  and  the  de- 
fendant, being  a  carpenter,  was  induced  to  go  to  Illinois  to  look  at 
the  site  of  the  proposed  structure.  The  truth,  that  the  object  in 
getting  defendant  into  the  state  of  Illinois,  was  to  obtain  jurisdiction 
of  his  person  in  an  action  against  him,  and  avoid  the  bar  of  the  stat- 
ute of  limitations  of  the  state  of  Iowa,  was  sup])ressed.  It  can  not 
be  supposed  that  if  the  real  facts  and  purpose  had  been  made  known 
to  defendant  he  would  ^voluntarily  have  gone  to  Illinois,  and  subjected 
himself  to  an  action  upon  this  demand,  long  since  barred  by  the 
statute  of  limitations  of  the  state  in  which  he  resides.  Counsel  rep- 
resenting plaintiff  in  this  court,  and  v.-ho,  it  is  but  justice  to  say, 
were  not  concerned  in  obtaining  the  judgment  in  Illinois,  do  not 
seriously  controvert  the  y)osition,  that  the  mode  of  obtaining  juris- 
diction was  fraudulent.  They  concede  that  it  "smells  somewhat  of 
fraud."  The  only  palliation  w^hich  they  are  able  to  offer  is  the  sug- 
gestion of  a  doubt  whether  it  may  not  be  considered  a  "pious  fraud" 
in  which  "the  end  justifies  the  means." 

We  do  not  think  that  it  is  entitled  even  to  that  small  measure  of 
charity. 

An  enlightened  and  just  administration  of  the  law,  no  less  than 
sound  public  morals,  condemns  such  j^ractices,  and  demands  that 
the  client  whose  cupidity  could  sanction,  and  the  attorney  whose 
venality  could  execute,  such  a  purpose,  should  alike  be  disgraced."^ 

Affirmed. 


"Accord:  Stein  v.  Valkenhuysen,  i  El.,  B.  &  El.  65  (1858)  ;  Wauzer  v. 
Brujht,  52  111.  35  (1869)  ;  Williams  v.  Rccd,  29  N.  J.  L.  385  (1862)  ;  Metcalf 
V.  Clark,  41  Barb.  (N.  Y.)  45  (1864)  ;  Tcnvnscnd  v.  Smith,  47  Wis.  623,  3  N. 
W.  439,  32  Am.  Rep.  793  (1879)  ;  Columbia  Placer  Co.  v.  Hucynis  Co.,  60  Minn. 
142,  62  N.  VV.  115  (1895)  ;  Olcan  St.  R.  Co.  v.  Con.slriiction  Co.,  55  App.  Div. 
(X.  Y.)  292  (1900)  :  Harbison- 1 i'alL'cr  Ref  Co.  v.  Frederick.';^  12  Pa.  Dis.  R. 
419  (1903)  ;  CavanaglTv.  Manhattan  Transit  Co.,  133  Fed.  818^1903).  Com- 


MORROW  V.  DUDLEY  &-  CO.  295 

MORROW  V.  DUDLEY  &  CO.  /T 

United  States  District  Court,  Middle  Dist.  Pa.,  1906. 
144  Fed.  441. 

Arciibald,  J. :  Service  of  the  summons  in  this  case  was  made 
on  W.  D.  Breaker,  one  of  the  defendants,  a  resident  of  New  York, 
on  January  20,  1906,  while  he  was  at  Scranton,  Pa.,  for  the  purpose 
of  attending  a  hearing  in  bankruptcy  before  W.  L.  Hill,  referee,  in 
support  of  a  claim  of  the  defendant  firm  against  the  La  Plume  Con- 
densed Milk  Company,  of  which  the  plaintifif  is  trustee.  The  hearing 
was  fixed  for  January  19th,  and  after  the  parties  had  met,  and  pro- 
ceeded a  certain  distance,  it  was  adjourned  to  the  next  day.  Service' 
was  made  after  the  completion  of  the  adjourned  hearing,  as  the  de-; 
fendant  was  on  his  way  to  the  train  to  return  home.  The  summons^ 
were  returnable  the  fourth  Monday  of  February  (February  26th), 
the  first  day  of  the  next  term ;  and,  on  February  loth,  the  present 
rule  to  set  aside  the  service  was  taken. 

Of  the  right  of  a  party  to  attend  a  judicial  hearing  away  from 
the  place  of  his  residence,  without  being  subjected  to  the  service  of 
pirocess,  there  is,  of  course,  no  question,  i  Tr.  &  Haly  Prac,  sec. 
236.-  And  hearings  before  a  referee  in  bankruptcy  are  within  the 
rule.  Ardlng  v.  Flozvcr,  8  Term  Rep.  534;  Selhy  v.  Hills,  8  Bing. 
166;  Ex  parte  King,  7  Ves.  312;  Ex  parte  List,  2  Ves.  &  B.  373; 
Matthe-iVs  v.  Tufts,  87  N.  Y.  568.  The  privilege  is  personal,  how- 
ever, and  may  be  waived ;  and  will  be  taken  to  be  so,  unless  insisted 
upon  promptly.  Mattliezvs  v.  Puffer  (C.  C.)  10  Fed.  606;  Hendrick 
V.  Gates,  3  C.  P.  Rep.  (Pa.)  160.  There  was  a  delay  of  three  weeks 
in  the  present  instance,  and  it  is  contended  that  this  operated  as  a 
waiver.  But  I  am  not  so  persuaded.  Ordinarily,  it  is  sufficient  if  ap- 
plication to  set  aside  the  service  is  made  on  or  before  the  return  day 
(Lederer  v.  Adams,  19  Civ.  Proc.  R.  [N.  Y]  294,  11  N.  Y.  Supp. 
481 ;  McPherson  v.  Nesmitli,  3  Grat.  [Va.]  237),  provided  no  other 
step  has  been  taken  in  the  case  (i  Tr.  &  Haly  Prac.  sec.  240),  and 
the  situation  of  the  parties  has  not  changed  meanwhile  {JVebb  v. 
Taylor,  9  Jur.  39;  Alassev  v.  Dantam.  12  Wkly.  Notes  Cas.  [Pa.] 
436;  Young  v.  Armstrong,  ij,  Wkly.  Notes  Cas.  [Pa.]  313).  It 
was  held  in  Souder  v.  Burlmg,  i  Tr.  &  Haly  Prac.  sec.  236,  note, 
that  it  must  be  made  before  the  defendant  leaves  the  jurisdiction. 
But  the  circumstances  v.hich  led  to  this  observation  are  not  stated, 


pare  Union  Sugar  Refinery  v.  Mathiesson,  2  Cliflf  (U.  S.)  304  (1864)  ;  Com- 
mercial Nat.  Bank  v.  Davidson,  18  Ore.  57  (1889)  ;  Kennedy  v.  Merritt,  55 
Pitts.  L.  J.  261   (190S)  ;  McLain  v.  Parker,  88  Kans.  717   (1913)- 

-Accord:  Hayes  v.  Shield.';,  2  Yeates  (Pa.)  222  (i797)  ;  Hnddeson  v^ 
Priser,  9  Phila.  65  (1872);  Person  v.  Grier,  66  N.  Y.  124,  23  Am.  Rep.  35 
(1876)';  Thompson's  Case,  122  Mass.  428,  23  Am.  Rep.  370  (1877);  Murray 
V.  Wilcox,  122  Iowa  188,  97  N.  W.  1087,  64  L.  R.  A.  534,  loi  Am.  St.  263 
(1904)  ;  Richardson  v.  Smith,  74  N.  J.  L.  in  (1906)  ;  Skinner  v.  IVaite,  155 
Fed.  828  (1907)  ;  Barber  v.  Knozvles,  77  Ohio  81  (1907).  The  privilege  does 
not  extend  to  mere  volunteers.  Michaels  v.  Hain,  78  Hun  (N.  Y.)  500 
(1894). 


296  ACTIONS 

and  there  is  iiothin;^  to  tleterniiiie,  therefore,  how  far  it  may  be 
properly  extended  to  other  cases.  It  is  probable  that  there  the  de- 
fendant did  not  depart  immediately,  for  it  is  said  that  if  he  had 
insisted  on  his  ]irivile.c;e  at  once,  the  plaintiff  might  have  had  the 
process  served  upon  him  legally,  afterwards,  before  he  left.  In 
this  respect,  it  is  like  the  case  where  the  defendant  returns  into  the 
jurisdiction,  jnitting  himself  again  within  reach  of  process,  before 
he  moves;  which  is  held  to  be  a  waiver.  Massey  v.  DautitDi,  12 
Wkly.  Notes  Cas.  (Pa.)  436;  Hendrlck  v.  Gates,  t,  C.  P.  Rep.  (Pa.) 
160."  But  it  certainly  does  not  apply  where,  as  here,  the  defendant 
was  served  on  his  way -to  the  train. 

The  rule  is  made  absolute,  and  the  serxice  is  set  aside.* 


GEORGE  GRAVES  v.   J.  D.  MACFARLAND. 

Supreme  Court  of  Nebraska,  1899. 

58  Ncbr.  802. 

Sullivan,  J.:  This  is  an  appeal  by  George  Graves  from  a  judg- 
ment of  the  District  Court  of  Antelope  County.  The  facts  essential 
to  an  understanding  of  the  questions  presented  for  decision  are 
these:  The  appellant,  who  was  plaintiff  below,  purchased  of  Lyman 
Seiler,  in  August,  1890,  a  lot  in  the  city  of  Lincoln  subject,  accord- 
ing to  the  recital  of  the  deed,  to  an  incumbrance  of  $1,600.  In  Janu- 
ary, 1892,  the  mortgagee,  J.  D.  Macfarland,  brought  an  action  in 
the  District  Court  of  Lancaster  County  to  foreclose  his  mortgage, 
making  Seiler  and  Graves  and  wife  parties  defendant.  Mr.  and 
Mrs.  Graves  resided  in  the  city  of  Neligh,  in  Antelope  County,  and 
process  was  sent  to  the  sherifif  of  tliat  county  for  service  upon  them. 
The  writ  was  issued  on  January  10  and  was  made  returnable  Janu- 
ary 18.  It  was  not  in  fact  returned  and  filed  in  the  office  of  the 
clerk  of  the  district  court  until  January  23.  The  sheriff's  certificate, 
v^hich  is  dated  January  16,  recites  that  on  January  15  the  summons 


'  W'liat  is  a  reasonable  time  for  departure  is  a  question  of  fact  to  be  de- 
terminated from  the  evidence.  Linton  v.  Cooper,  54  Nebr.  438  ( 1898)  ;  Cake  v. 
Haight,  30  Misc.  (N.  Y.)  386  (1900);  Finncanc  v.  Warner,  194  N.  Y.  160 
(190Q). 

*  Nonresident  parties  and  witnesses  are  exempt  from  service  of  process 
while  attending  and  departing  from  court.  Miles  v.  McCiillonnK  i  Binney 
(Pa.)  77  (1803)  ;  Grove  v.  Campbell,  9  Yerg.  (lenn.)  7  {m2>^-))]Massev  v. 
Colville,  45  N.  J.  L.  119  (1883)  ;  Wilson  v.  Donaldson,  117  Ind.  356  (1888). 
Contra  (as  to  suitors)  in  Capwcll  v.  Sipe,  17  R.  I.  475  (1891)  ;  Baisley  v.  Bais- 
Icy,  113  Mo.  544  (1892).  See  generally  25  Lawyer's  Reports  Annotated  721. 
As  to  attorneys  see  Greenleaf  v.  People,  133  N.  Car.  292  (1903).  As  to  the 
exemption  from  arrest  in  civil  cases  enjo\'ed  by  ambassadors,  members  of 
legislative  bodies  while  in  the  discharge  of  tlieir  duties,  electors  and  persons 
actually  engaged  in  military  service  see  i  Troubat  &  Haly's  Practice  (Fish's 
ed.).  246,  2>2  Cyc.  490;  Merrick  v.  Gidding,  28  Fed.  387  (1S86),  members  of 
congress;  Corlies  v.  Holmes,  20  Wend.  (N.  Y.)  681  (1839),  e\ectOT i_Davidson , 
V.  Barclay.  6'i  Pa.  406  (1869),  militar\-  service;  Cameron  v.  Roberts,  87  Wis. 
291  (l894Tr^"stice  of  the  Y^ence]_Diipnnt  v  Pjchnn^  Dall.  (Pa.)  321  (1805)  ; 
In  re  Anfryc,  3  \V.  N.  C.   (Pa.)    188  (1876),  diplomats. 


GRAVES    V.    MACFARLAND  29/ 

was  personally  served  upon  Mrs.  Graves  and  a  copy  left  at  the  usual 
place  of  residence  of  George  Graves/'^ 

It  is  contended  that  the  summons  not  having  been  returned 
within  the  time  limited  by  the  statute,  the  court  acquired  no  juris- 
diction over  the  person  of  the  appellant,  and  that  the  jttdgment  ren- 
dered against  him  was  therefore  void.  We  think  counsel  is  right 
in  asserting  that  the  file-mark  of  the  clerk  is  the  proper  and  primary 
evidence  of  the  time  when  the  summons  was  returned  by  the  sheriff. 
And  it  must,  under  the  authorities,  be  conceded  that  the  return 
contemplated  by  the  law  includes  not  only  the  officer's  certificate  of 
service,  but  also  the  delivery  of  the  writ  to  the  office  from  which 
it  issued.  (Alderson,  Judicial  Writs  &  Process,  sec.  184;  Nelson  v. 
Cook,  19  111.  440;  Cariker  v.  Anderson,  27  111.  358).  It  does  not 
follow,  however,  that  a  service  which  is  valid  when  made  becomes 
a  nullity  because  the  officer  fails  to  make  due  return  of  the  writ. 
When  the  summons  is  served  the  action  is  pending;  the  court  has 
jurisdiction  of  the  parties  and  can  not  be  divested  of  the  authority 
over  them  by  any  fault  or  omission  of  the  sheriff.  It  is  not  the  offi- 
cer's return  that  gives  the  court  power  to  hear  and  determine  the 
cause,  but  the  fact  of  service  during  the  life  of  the  writ.  The  return 
is,  of  course,  the  appropriate  evidence  of  the  jurisdictional  fact,  but 
it  is  not  conclusive.  There  is  no  good  reason  why  a  defendant  who 
has  been  duly  served  should  complain  because  the  court  was  not 
possessed  of  the  proof  of  service  within  the  time  fixed  by  the  stat- 
ute.*' (Smith  V.  Payton,  13  Kans.  362;  dough  v.  McDonald,  18 
Kans.  114;  Miller  v.  Forbes,  49  Pac.  Rep.  [Kans.]  705.) 

*  Only  so  much  of  the  opinion  as  relates  to  the  sheriff's  return  is  printed. 
Judgment  for  the  plaintiff  below  was  reversed  on  other  grounds. 

"In  Nelson  v.  Cook,  19  111.  440  (1858)  it  is  said:  "The  indorsement  of 
the  officer  is  one  thing,  and  the  return  another.  The  action  of  the  officer 
upon  the  writ  is  not  the  return  strictly  speaking.  It  does  not  become  a  return, 
or  bear  that  character,  until  as  the  word  imports,  it  be  actually  returned  to 
the  office  out  of  v/hich  it  issued.  Being  indorsed,  and  remaining  in  the  hands 
of  the  officer,  it  is  under  his  control,  and  he  can  erase  the  endorsement  and 
substitute  another  at  his  pleasure.  He  is  not  concluded  b}-  anything  he  may 
have  written  upon  it,  until  it  has  left  his  possession,  and  has  been  returned 
to  the  proper  office.  Nor  is  he  then  concluded,  for,  by  a  proper  application 
to  the  court,  and  which  courts  rareh^  refuse,  he  can  alter  and  amend  his  re- 
turn ;  the  courts  holding  him  to  his  first  responsibility  in  an  action  for  false 
return."    See,  also,  Beall  v.  Shattnck,  53  Miss.  358   (1876). 

Process  must  be  returned  by  the  officer  charged  v/ith  executing  it,  certify- 
ing in  a  brief  statement  what  he  did  in  furtherance  of  the  command  of  the 
writ.  Jenkins  v.  McGill,  4  How.  Pr.  (N.  Y.)  205  (1849)  ;  Jones  v.  Bihh  Brick 
Co.,  120  Ga.  321,  48  S.  E.  25  (1904).  See,  also,  Mctcalf  v.  Gillet,  5  Conn.  400 
(1824)  ;  JJ^ilson  v.  Grcatlwnse,  2  111.  174  (1835)  ;  Moore  v.  Miller,  16  N.  J.  L. 
233  (1837);  Sheldon  v.  Comstock,  3  R.  I.  84  (1854);  Hutton  v.  Campbell, 
10  Lea.  (Tenn.)  170  (1882)  ;  State  v.  Reed,  50  La.  170,  23  So.  333  (1898)  ; 
Alhright-Pryor  Co.  v.  Pacific  S.  Co.,  126  Ga.  498  (1906)  ;  Hemmelherger- 
Harrison  L.  Co.  v.  Jones,  220  Mo.  190  (1909)  :  McGozvin  v.  Dickson,  182 
Ala.  161  (1913);  New  York  Code  Civ.  Proc,  §  434;  California  Code  Civ. 
Pro.  §  415. 

It  is  proper  to  permit  a  return  of  service  to  be  amended  according  to  the 
fact.  Spencer  v.  Rickard,  69  W.  Va.  322  (1911).  Accord:  First  Nat.  Bk.  v. 
Ellis,  27  Okla.  699  (1911);  Spcare  v.  Stone,  193  Fed.  T,y$  (1912)  ;  Fnrr  v. 
Bank  of  Fairmount,  139  Ga.  815  (1913)  ;  Fountain  v.  Detroit  M.  &  C.  R.  Co., 
210  Fed.  982  (1913)  ;  Ripley  v.  Harmony,  in  Maine  91  (1913). 


2q8  ACTIONS 


TILLAIAX  r.   D.W'IS. 

SuPKKMK  Court  of  Geoucia,  1859. 

28  Ga.  494. 

Certiorari.  Decision  l)y  Judge  Allen,  in  Lee  Superior  Court, 
^larch  term,  1859. 

William  J.  Tillman  broug;ht  suit  to  the  January  term,  1858,  of 
Lee  Inferior  Court,  against  John  A.  Dannard  and  Jonathan  Davis, 
on  a  promissory  note  given  for  rent.  Davis  lived  in  the  county  of 
Lee.  and  Dennard  in  the  county  of  ]")ougherty.  Both  parties  ap- 
pear, from  the  entries  on  the  original  and  second  original  declara- 
tions, to  have  been  regularly  served. 

At  the  July  term,  1858,  of  said  court,  a  verdict  was  rendered 
in  favor  of  the  plaintiff,  judgment  duly  entered  up,  and  fi.  fa.  issued. 

Davis  afterwards  m.oved  to  set  aside  said  judgment,  on  the  fol- 
lowing grounds,  to  wit : 

1st.  That  defendant  Davis  was,  in  fact,  only  security  to  the  con- 
tract on  wh.ich  said  judgment  was  founded,  and  signed  the  same  as 
such. 

2d.  That  he  gave  ])laintiff  notice  to  sue  the  principal  on  said 
note  on  or  about  the  first  day  of  January,  1858.  That  the  suit  on 
v/hich  said  judgment  is  founded  was  brought  against  himself  and 
said  principal  within  three  months  after  the  notice  aforesaid,  but 
that  said  principal  was  never  duly  served  with  said  writ ;  that  said 
principal  was  not  served  until  after  the  court  passed  to  which  the 
writ  was  sued.  And  that,  therefore,  the  court  had  no  jurisdiction 
on  said  suit.  That  Dennard  was  insolvent.  These  facts  Davis  of- 
fered to  prove  to  the  court. 

The  court  refused  the  motion,  and  Davis  excepted;  whereupon 
the  court  also  overruled  the  exceptions,  and  Davis  sued  out  a  writ 
of  certiorari.  Upon  the  hearing  of  the  certiorari  at  the  March  term, 
1859,  of  Lee  Superior  Court,  it  was  admitted  that,  since  the  hearing 
in  the  inferior  court,  the  interrogatories  of  C.  M.  Boynton,  the  sher- 
iff of  Dougherty  County,  had  been  taken,  and  that  the  sheriff  ad- 
mitted he  had  not  served  Dennard  within  the  pro|)er  time ;  that  the 
service  was.,  however,  made  before  the  January  term,  1858,  of  Lee 
Inferior  Court,  and  by  the  consent  of  Dennard,  was  dated  back  to 
the  proper  time.  The  court  refused  to  act  ui)on  any  matter  not  dis- 
closed by  the  record  from  the  court  below,  but  sustained  the  certi- 
orari and  overruled  the  decision  of  the  inferior  court. 

To  this  decision  coimsel  for  Tillman  excepted,  and  now  assigns 
the  same  for  error.**^ 

Lumpkin,  J. :  Of  course,  the  testimony  of  Boynton,  the  Sheriff  of 
Dougherty  County — taken  after  the  case  was  decided  in  the  inferior 
court — was  properly  disregarded  upon  the  hearing  of  the  certiorari. 


*a  Part  of  the  opinion  of  the  court  and  the  dissenting  opinion  are  omitted. 
By  statyte  in  Georgia  a  defendant  can  now  traverse  the  sheriff's  return. 
Parker  v.  Medlock,  117  Ga.  813,  45  S.  E.  61  (1903). 


TILLMAN  V.  DAVIS  299 

Had  that  evidence  been  in,  it  would  have  sustained  the  return  of 
Boynton,  the  sheriff;  and  we  should  have  been  saved  the  necessity  of 
inquiring  whether  the  return  of  that  officer,  as  it  stands,  can  be  con- 
troverted. The  case  depends  upon  the  decision  of  that  question. 
If  Dennard  was  regularly  served,  as  he  appears  to  have  been  by 
the  return  of  the  sheriff,  Davis  v/as  concluded  by  the  judgment. 

Upon  examination,  it  will  be  found  that  the  conclusiveness  of 
the  sheriff's  return,  both  upon  mesne  and  final  process,  is  assumed 
as  one  of  the  axiomatic  trviths  of  the  law,  and  the  principle  is  found 
scattered  broadcast  throughout  the  whole  of  the  text  books  and  re- 
ports, both  in  England  and  in  this  country,  except  in  the  state  of 
Connecticut,  where  a  contrary  doctrine  has  obtained. 

"The  return  of  the  sheriff,"  says  Baron  Comyn,  "is  of  such  high 
regard,  that  generally  no  averment  shall  be  admitted  against  it.  As 
if  A  be  returned  to  be  outlawed,  he  can  not  say  that  he  was  only 
quarto  or  qiimto  exactus.  Kit.,  280.  If  the  sheriff  return  issues  upon 
B,  it  can  not  be  averred  by  A  to  save  the  issues,  that  his  name  is  not 
B.  2  Rol.  .462,  I,  5.  If  the  sheriff'  in  redisseisin  returns  accessi  ad 
terras,  etc.,  it  can  not  be  assigned  for  error,  quod  non  accessit. 
Leon.,  183.  If  coronors  make  a  return,  it  can  not  be  said  that  only 
one  made  the  return.  R.  Raymond,  485.  If  a  sheriff  returns  scire 
feci  A.  tenen'  iin'  mess' ,  A  can  not  plead  non  tenet.  R.  Cro.  Eliz., 
872;  R.  Mod.  10.  (Com.  Dig.  Title  Return  G.  6  vol.,  242-243.) 
Sheriffs'  return  not  traversable ;  but  you  may  have  an  action  for  a 
false  return.  Loft.,  631 ;  Rex  v.  Elkins,  4  Burr.  2127 ;  Barr  v.  Satch- 
zvell,  2  Str.  813. 

But  I  will  not  multiply  citations  upon  this  point.  I  have  investi- 
gated carefully  in  Brooke  and  Viner's  Abridgements,  and  traced 
the  question  to  its  fountain  head,  and  find  it  well  settled  that  by  the 
common  law  no  averment  will  lie  against  the  sheriff's  return,  and  one 
reason  assigned  amongst  others,  is  that  he  is  a  sworn  officer,  to  whom 
the  law  gives  credit.  Jenk.  143,  pi.  98.  There  are  some  exceptions 
to  the  general  rule  in  favor  of  life  and  liberty,  and  som.e  modifica- 
tions made  by  several  ancient  statutes.  But  they  are  slight  and  re- 
stricted to  returns  upon  particular  subjects,  and  do  not  affect  the 
present  case.  It  is  also  true,  that  while  the  return  of  the  sheriff,  in 
certain  cases,  will  not  be  allowed  to  be  controverted  in  the  same 
action,  an  averment  may  be  made  contrary  to  the  same  return  in 
another  action. 

I  lay  down  another  proposition,  which  seems  to  be  uniform  and 
incontrovertible :  that  a  return  of  the  sheriff  which  is  definitive  to 
the  trial  of  the  thing  returned,  as  the  return  of  the  sheriff  upon  his 
writs,  can  not  be  traversed.  Brooke's  Abr.  Title  Averment ;  Viner's 
Abr.  Title  Return,  vol.  XIX. 

All  the  American  authorities  are  collected  in  note  (d.)  appendix 
to  vol.  2  Cowen  &  Hill's  notes  to  Phillips  on  Ev.,  p.  794,  and,  as  I 
stated  in  the  beginning  of  this  opinion,  with  a  solitary  exception, 
there  is  an  unbroken  array  of  American  cases  in  favor  of  die  well- 
established  English  rule,  that  as  between  the  parties  to  the  process 


300  ACTIONS 

or  their  pri\  ies,'  the  return  of  the  slieriff  is  usually  conclusive,  and 
not  liable  to  collateral  impeachment,  except  for  fraud  or  collusion ; 
a  rule  so  necessary  to  secure  the  rights  of  the  jiarties,  and  to  give 
\alidity  ami  effect  to  the  acts  of  ministerial  officers,  leaving  the 
persons  injured  to  their  redress  liy  an  action  for  a  false  return;  and 
that  this  rule  concluding  the  ])artics,  api)lied  to  mesne  process,  by 
which  the  parties  are  brought  into  court. 

T  will  not  consume  time  in  reviewing  the  Connecticut  cases. 
Suffice  it  to  say  that  in  li'atson  and  others  v.  IVatson  (6  Conn. 
Rep.  334).  Ch.  J.  Hosmer,  who  delivered  the  meagre  opinion  of  the 
court,  says,  distinctly,  that  it  is  a  general  rule  of  the  English  common 
law,  that  the  return  of  the  sheriff  is  conclusive,  both  as  it  respects 
mesne  and  final  process,  there  being  no  distinction  made  between 
the  two  in  Westminster  Hall.  Rut  that  in  Connecticut  a  contrary 
doctrine  had  prevailed ;  and  that  he  was  unable  to  assign  the  precise 
reason  for  this  dei)arture  from  the  English  common  law. 

This  concession  is  sufficient  to  satisfy  a  judge  in  Georgia  what 
his  duty  is. 

It  may  be  supposed  that  to  make  the  returns  of  an  officer,  prima 
facie  evidence  of  their  truth  would  be  a  sufficient  security  for  the 
riglits  of  the  people;  and  to  prevent  the  perpetration  of  irreparable 
wrong.  But  that  is  a  matter  for  the  legislature  and  not  for  the 
courts. 

By  the  act  of  1S40  (Pamphlet,  p.  4;  Hotchkiss,  527),  returns 
made  under  oath,  by  virtue  of  any  rule  or  order  of  the  court,  are 
traversable.^  But  the  legislature  has  not  seen  fit  to  extend  the  right 
to  the  ordinary  returns  made  by  a  shcrift'  on  process  in  his  hands. 
Where  they  stop,  we  must  stop." 

.Stephens,  J.,  concurred.   Benning,  J.,  dissents. 


'  Strangers  are  not  concluded  by  the  return.  United  States  v.  McHie,  194 
Fed.  894  (1912)  ;  Hearsley  v.  Bradbury,  9  Mass.  95  (1812)  ;  Brown  v.  Davis, 
9  N.  H.  76  (1837);  Phillips  v.  Elu'e'll,  14  Ohio  St.  240,  84  Am.  Dec.  373 
(1863)  ;  Hutton  v.  Campbell,  10  Lea.  (Tenn.)  170  (1882). 

"A  return  of  personal  service  made  by  a  private  person  is  open  to  con- 
tradiction. O'Connor  v.  Felix,  147  N.  Y.  614,  42  N.  E.  269  (1895)  ;  Campbell 
V.  Wayne  Circuit  Judge,  III  Mich.  247,  69  N.  W.  511  (1896)  ;  Peck  v.  Cham- 
bers, 44  W.  Va.  270,  28  S.  E.  706  (1897)  ;  Marin  v.  Potter,  15  N.  Dak.  284,  107 
N.  W.  970  (1906). 

"Accord:  Slayion  v.  Inhabitants  of  Chester,  4  Mass.  478  (1808);  Bean 
V.  Parker,  17  Mass.  591  (1822);  Case  v.  Redfield,  7  Wend.  (N.  Y.)  398 
(1831)  ;  Goubot  V.  DeCrony,  2  Dowl.  P.  C.  86  (1833)  ;  ^ion  Church  v.  St. 
Peter's  Clmrrh^  :;  W.  &  S.  21=;  (1843)  ;  Barrett  v.  Copelancl,  i«  Vt.  67,  44  Am? 
Dec.  362  (1844)  ;  Castner  v.  Styer,  23  N.  J.  L.  236  (1852)  ;  Nichols  v.  Nichols, 
96  Ind.  433  (1884)  ;  Insurance  Co.  v.  Webb,  106  Tenn.  191  (1900)  ;  Neivcomb 
V.  New  York  Central,  etc.,  R.  Co.,  182  Mo.  687,  81  S.  W.  1069  (1904)  ;  Mayer- 
son  V.  Cohen,  123  App.  Div.  (N.  Y.)  646  (1908)  ;  Strobel  v.  Clark,  128  Mo. 
.\pp.  48  (1907);  Miedreich  v.  Lauenstein,  172  Ind.  140  (1908),  affirmed: 
232  U.  S.  236;  Higham  v.  Iowa  S.  T.  Assn.,  183  Fed.  845  (1911)  ;  Fraternal 
Bankers  v.  Wire,  150  Mo.  App.  189  (1910)  ;  Sutherland  v.  People's  Bank, 
III  Va.  515  (1910)  ;  Kimsey  v.  Macon  Lumber  Co.,  136  Ga.  369  (1911); 
Hntovilsky  v.  Little  Rus.sian,  etc.,  Church,  78  N.  J.  Eq.  576  (1911)  ;  F/ar- 
cus  Oak  L.  Co.  V.  Heasley,  50  Pa.  Super.  Ct.  127  (1912).  The  modem 
tendency,  however,  is  to  permit  the  return  to  be  attacked  by  affidavit,  motion 
or  other  proceeding  to  set  it  aside,  hence  there  is  great  confusion  in  the  cases. 


TOWNER  V.  PHELPS  3OI 

TOWNER  V.  PHELPS. 

Supreme  Court  of  Connecticut,  1791. 

I  Root's  {Conn.)  250. 

Upon  a  writ  of  error,  adjudged — That  a  writ  which  has  been 
served  and  returned  can  not  have  an  existence  as  a  writ,  for  an- 
other purpose,  by  being  taken  out  of  the  files  and  served  again/" 


X 


(b)   Appearance. 
CARRIE  M.  CHILDERS  v.  ADOLPH  J.  LAHANN. 

Supreme  Court  of  New  AIexico,  1914. 
18  N.  Mex.  487. 


Motion  to  dismiss  appeal. ^^ 

Roberts,  C.  J. :  Aj^pellant  admits  that  no  citation  was  issued  or 
served  upon  app.ellee ;  That  "the  return  day  was  October  25,  1913. 
But 'sHe' resists  the  motion  to  dismiss  the  appeal,  on  the  ground  that 
appellee  has  entered  a  general  appearance  in  the  case  in  this  court. 
The  Issuance  and  service  of  citation  is  waived  by  the  vokmtary 
appearance  of  the  appellee  or  defendant  in  error.  Daily  v.  Foster, 
128  Pac.  71.  The  claim  of  appellant  is  not  based  upon  any  formal 
entry,  plea,  m.otion,  or  act  of  the  appellee  shov\"n  by  the  records  of 


See  32  Cyc.  516;  18  Enc.  PI.  &  Pr.  969;  Butts  v.  Francis,  4  Conn.  424  (1822)  ; 
Owens  V.  Ranstead,  22  111.  161  (1869)  ;  Barbour  v.  Nezvkirk,  83  Kv.  529 
(1886);  Crosby  v.  Farmer,  39  Minn.  305  (1888)  ;  Park  Bros.  &  Co.'y.  Qjl 
City  B.  IV.,  204.  Pa.  d'^T,.  S4  Atl.  334  (1903)  ;  Nicholas  Allegrette  v.  Stubbert, 
"126  111.  App.  171  (I9c6)  ;  Westman  v.  Carlson,  86  Nebr.  847  (1910)  ;  Pinnacle 
Gold  Min.  Co.  v.  Popst,  54  Colo.  451    (1913). 

^"A  writ  when  returned  served  is  functus  officio.  Gorman  v.  Steed,  i  W. 
Va.  I  (1864)  ;  Carrigan  v.  Washburn,  9  N.  Y.  Supp.  541  (1889)  ;  Mansur  v. 
Insurance  Co.,  136  Mo.  App.  726  (1909).  Contra:  Ridcnburg  v.  Sandlin,  14 
Idaho  472  (1908),  where  it  is  said:  "The  contention  that  a  snmmons  once 
returned  and  filed  is  functus  officio  and  can  not  be  given  life  and  effect  by  an 
order  of  court  is  not  well  founded.  As  soon  as  it  becomes  a  file  of  the  court, 
it  is  beyond  the  power  of  any  party  to  the  action  to  withdraw  it  without  an 
order  of  court  to  that  effect ;  but  the  court  itself  has  control  over  the  rec- 
ords and  files  in  a  case  as  well  as  over  its  own  process,  and  it  might  order  a 
summons  already  issued  and  on  file  to  be  withdrawn  for  service,  or  order  an 
entirely  new  summons  as  ju.stice  and  the  e.xigencies  of  the  case  demand." 

In  most  jurisdictions  that  follow  the  common  law,  when  a  summons  is 
returned  not  served,  an  alias  writ  may  issue,  and  if  that  be  similarly  re- 
turned, it  may  be  followed  by  pluries  writs  until  service  is  made  upon  the  de- 
fendants. Danville  &  IV.  R.  Co.  v.  Brozvn,  90  Va.  340  (1893)  ;  Oil  &  Gas 
IV.  Co.  v.  Gartland,  58  W.  Va.  267  (1905)  ;  Berkman  v.  Weisinger,  50  Misc. 
(N.  Y.)  515  (1906)  ;  Bovaird  v  Ferguson  21^  Pa.  235  (1906).  California 
otherwise,  Dupuy  v.  Shear,  29  C  al.  238  (1865),  see  Coffin  v.  Bell,  22  Nev. 
169  (1894). 

"Part  of  the  oi)inion  is  omitted. 


^OJ  ACTIONS 


this  court,  but  is  founded  solely  upon  a  letter  received  by  her  attor- 
ney from  one  of  appellee's  attorneys,  and  the  reply  of  her  said  at- 
torney thereto.  The  letters  are  as  follows: 


"El  Paso,  Texas,  Nov.  2,  1913. 
•']•:.  W.  Dobson, 

"Albuquerque.  N.  M. 
"Dear  Mr.  Dobson: 

"Your  letter  of  the  28th  ult.  was  forwarded  to  me  here,  and  I 
wish  to  thank  you  for  the  offer  to  extend  courtesies  in  case  of  Cliil- 
ders  V.  Lahann. 

"If  it  is  not  asking  too  much,  I  would  like  to  have  the  case  con- 
tinued to  the  January  term,  when  I  hope  to  be  able  to  attend  to  it. 
I  am  here  under  treatment  and  improxing  slowly,  but  am  unfit  for 
work.  By  extending  the  time  for  hearing  of  the  case  as  indicated, 
you  will  greatly  oblige.  Mr.  Hudspeth  will  sign  a  stipulation  if  one 
is  necessary. 

"Yours  truly, 

"John  Y.  Hewitt." 

To  which  appellant's  attorney  replied  as  follows: 

"John  Y.  Hewitt, 

"El  Paso,  Texas. 
"My  Dear  Judge : 

"Yours  of  the  2d  inst.  received.  I  told  Mr.  Hudspeth  that  I 
would  grant  any  reasonable  time  for  you  to  file  briefs  in  the  case 
of  Childers  v.  Lahann,  and  so  far  as  I  am  concerned  the  case  can 
be  taken  up  at  the  January  term.  After  your  reply  brief  is  filed  it 
may  be  that  I  will  want  to  answer  the  same,  although  at  the  present 
time  I  think  I  have  covered  all  points  that  I  could. 

"I  v>-ill  sign  any  stipulation  that  you  or  Mr.  Hudspeth  may  de- 
sire, although  this  letter  is  sufficient  and  I  assure  you  no  advantage 
will  be  taken  and  you  will  be  granted  the  time  that  you  desire. 

"Yours  truly, 

"E.  W.  Dobson." 

Xo  application  for  a  continuance  was  made  to  the  court  by  ap- 
pellee, and  no  entry  of  any  kind  was  made  by  the  court  in  the  case 
in  this  regard.   On  November  26,  the  motion  to  dismiss  was  filed. 

The  solution  of  the  question  depends  upon  the  effect  of  the  let- 
ters quoted,  for,  if  they  constituted  an  appearance  by  appellee  in  this 
court,  the  motion  to  dismiss  is  not  well  taken. 

Eouvier's  Law  Dictionary  defines  appearance,  in  practice,  as  fol- 
lows :  "A  coming  into  court  as  a  party  to  a  suit,  whether  as  plaintiff 
or  defendant.  The  formal  proceeding  by  which  a  defendant  sub- 
mits himself  to  the  jurisdiction  of  the  court." 

It  could  hardly  be  contended  that  the  letters  v.hich  passed  be- 
tween the  attorneys  would  constitute  an  appearance,  within  the  defi- 


CHILDERS  V.  LAHANN  303 

nition  of  the  term  above  quoted.  There  was  no  "coming  into  court," 
for  no  action  by  the  court  was  asked  by  appellee.  No  paper,  motion  or 
pleading  of  any  kind  was  filed  by  appellee,  nor  was  any  relief  asked 
of  the  court.  Had  appellee  applied  to  the  court  for  a  continuance, 
such  act  would  have  constituted  an  appearance  and  the  court  would 
have  jurisdiction  over  his  person.  And  the  question,  as  to  vv^hether  a 
party  had  appeared  and  submitted  himself  voluntarily  to  the  juris- 
diction of  the  court,  should  be  tried  by  the  record  and  not  by  other 
evidence.  Were  this  not  true  the  door  might  be  opened  to  fraud 
and  imposition.  As  to  the  acts  necessary  to  constitute  an  appearance 
and  how  established,  the  Supreme  Court  of  Indiana  say :  "To  con- 
stitute an  appearance  so  as  to  give  jurisdiction  over  the  person  of  a  " 
defeiidant  in  this  slate;iTierFmusrbe  some  formal  entry,  plea,  mo- 
tion, or  act,  (^r  word  sj'ol.cn  in  said  cause  in  court  \yhich  should  be 
"sbo-.;  n  liy  llie  record."  Kirkpatrick,  etc.,  Co.  v.  Central  Electric  Co., 
150  Tn.I.  O^ty. 

In  the  case  of  Scott  et  al.  v.  Hull  et  al,  14  Ind.  136,  the  defend- 
ants sought  to  remove  the  cause  to  the  Federal  Court,  and  the  ques- 
tion arose  as  to  whether  they  had  not  voluntarily  appeared  in  the 
case  in  the  state  court,  by  appearing  before  an  officer  upon  the  tak- 
ing of  depositions  by  plaintiffs,  and  also  by  defendants  taking  depo- 
sitions, to  be  used  upon  the  trial  of  said  cause.  The  court  say: 
"There  should  be  some  formal  entry,  or  plea,  or  motion,  or  official 
act  (3  Blackf.  266)  to  constitute  an  appearance;  and  this  should  be 
of  record,  and  tried  by  the  record.  6  Com.  Dig.  8;  Kanoitse  v  Mar- 
tin, 15  How.  (U.  S.)  198." 

The  Supreme  Court  of  West  Virginia,  in  the  case  of  Groves  v. 
County  Court,  42  W.  Va.  587,  say:  "Appearance  is  the  first  act  of 
the  defendant  in  court  (i  Tidd,  Prac.  262;  6  Com.  Dig.  tit.  'Pleader', 
B.  I,  p.  6)  and  the  appearance  of  the  defendant  is  triable  by  the  rec- 
ord which  is  a  verity  (i  Co.  Litt.  260;  i  Chit.  PI.  512)."  See  also 
Colhy  V.  Knapp,  13  N.  H.  175. 

In  vol.  2,  Standard  Encyc.  Proc.  491,  the  rule  is  stated  as  follows : 
"There  should  be  some  formal  entry  of  record,  'or  plea,  motion,  or 
official  act,  to  constitute  an  appearance',  and  this  should  be  tried 
by  the  record  and  not  by  other  evidence." 

In  this  case,  the  fact  that  the  court  would  be  required  to  resort 
to  evidence  outside  of  the  record,  in  order  to  ascertain  that  appellee 
had  appeared,  renders  appellant's  contention  untenable. 

The  court  has  jurisdiction  of  the  cause,  but  not  of  the  appellee, 
because  of  the  failure  of  serve  citation.  All  that  remains  to  give  the 
court  jurisdiction  over  both  the  cause  and  the  parties,,  is  the  issu- 
ance and  service  of  citation.  We  are  of  the  opinion  that  the  abov^ 
facts,  all  of  which  are  admitted,  furnish  good  cause  for  a  denial  of 
the  motion  to  dismiss  the  appeal,  and  warrant  the  court  in  permitting 
appellant  to  sue  out  and  serve  citation  on  appellee.  The  court  is^-_ 
always  reluctant  to  dispose  of  any  cause  except  upon  the  merits 
of  the  question  involved,  unless  required  to  do  so  by  plain  and  ex- 
plicit provisions  of  the  statute,  rule  of  court,  or  established  pro- 
cedure. 


304  ACTIONS 

luir  the  reasons  stated,  the  motion  to  dismiss  the  appeal  will  be 
denied,  at  this  time,  and  appellant  will  be  j^iven  the  ric^ht  to  sue  out 
and  serve  citation,  antl  it  is  so  onlered.'-' 


IIARRY  E.  HENRY  r.  WALTER  L.  SriTLILR. 

Slpkkmk  Couut  of  Elokioa,  1914. 

67  7-7(1.  146" 


X 


SiiACKLKFORn,  C.  J.:  Walter  L.  Spitlcr  instituted  an  action  of 
replevin  against  Ilarry  E.  Henry  to  recover  the  i)ossessTon"  of  "cer- 
tain described  mules.  The  property  was  redelivered  to  the  defendant 
upon  the  filing  of  a  forthcoming  bond  in  accordance  with  the  statu- 
"fory  provisions.  On  the  7th  day  of  April,  1913,  the  return  day  of 
,the  writ,  the  defendant  entered  his  special  appearance  "for  the  pur- 
/pose  of  moving  to  quash  the  return  to  the  writ  of  replevin"  and  tiled 
the  f ollowinsr  motion : 


'"See,  further,  Humphreys  v.  Humphreys,  Morr.  (Iowa)  359  (1844); 
Scott  V.  Hull,  14  Ind.  136  (i860);  Byrne  v.  Jeffries,  38  Miss.  533  (i860); 
Crary  v.  Barber,  I  Colo.  172  (1869)  ;  Rhoades  v.  Delaney,  50  Ind.  468  (1875)  ; 
Douglas  v.  Haherstro,  8  Abb.  N.  C.  (N.  Y.)  230,  50  How.  Pr.  276  (1880)  ; 
Ridyzi.'ay  v.  Horner,  55  N.  J.  L.  84,  25  Atl.  386  (1892)  ;  Harrison  v.  Morton, 
87  Md.671  (40  Atl.  897)  (1898);  Bank  v.  Prescott,  60  Kans.  490  (1899); 
Kirkpatrick  C.  Co.  v.  Central  E.  Co.,  159  Ind.  639,  65  N.  E.  913  (1902). 

A  general  appearance  is  an  unqualified  submission  to  the  jurisdiction  of 
the  court  and  does  not  necessarily  involve  the  physical  presence  of  either 
the  party  or  his  attorney.  It  may  be  in  writing.  Russell  v.  Craig.  10  Colo. 
App.  428,  51  Pac.  1017  (1897)  ;  Thornhill  v.  Hargrcavcs,  76  Nebr.  582  (1906), 
or  by  acts  showing  unequivocal  recognition  that  the  case  is  before  the  court. 
Long  V.  A'CU'liouse,  37  Ohio  348,  49  N.  E.  79  (1897)  ;  People  v.  Cowan,  146 
N.  Y.  348,  41  N.  E.  26  (1895). 

A  special  appearance  is  one  made  for  the  sole  purpose  of  objecting  to 
the  jurisdiction  of  the  court  over  the  person  of  the  defendant.  A'ye  v.  Lis- 
comhe,  21  Pick.  (Mass.)  263  (1838)  ;  Turner jy.  f-nrj^j^^  12  Pa.  Super,  Ct.  284 
(1899)  ;  Hilton  v.  Consumers  Co.,  103  Va.  255(1904)  ;  Allen  F.  Co.  v.  South- 
ern R.  Co.,  145  N.  Car.  37  (1907);  Dixon  v.  Wells,  L.  R.  (1890)  25  Q.  B. 
249;  State  V.  Tolan,  2,3,  N.  J.  L.  195  (1868)  ;  Scacoast  L.  Co.  v.  R.  J.  '&  B.  F. 
Camp  L.  Co.,  63  Fla.  604  (1912).  It  has  been  held  that  if  a  defendant  relies 
on  want  of  personal  jurisdiction  his  objection  must  be  confined  to  a  denial  of 
jurisdiction  over  his  person  and  must  not  include  a  denial  of  jurisdiction  of 
the  subject-matter  of  the  action.  Smith  v.  Hoover,  39  Ohio  249  (1883)  ;  Fitz- 
gerald &  Mallory  Con.  Co.  v.  Fitzgerald,  127  U.  S.  98,  34  L.  ed.  608  (1890)  ; 
Nicholcs  V.  People,  165  111.  502,  46  N.  E.  237  (1897)  ;  Pcrrine  v.  Knights  Tem- 
plar's L.  I.  Co.,  71  Xebr.  267,  98  N.  W.  841,  loi  N.  W.  1017  (1904)  ;  Lillie 
V.  Modern  IVoodmen,  89  Xebr.  i  (1914)  ;  Western  L.  Co.  v.  Butte,  etc.,  Mining 
Co.,  210  U.  S.  368  (1907).  Contra:  Kelley  v.  Smith,  196  Fed.  466  (1912)  ; 
Spencer  v.  Court  of  Honor,  120  Minn.  422  (1913). 

Where  an  attorney  appears,  he  is  presumed  to  act  by  authority  of  the 
party  he  represents;  but  if  his  authority  is  questioned,  the  court  will  require 
proof  of  his  employment.  Bayley  v.  Buckland,  i  Exch.  i  (1847)  ;  Kepley  v. 
Irwin,  14  Xebr.  300,  15  X.  W.  719  (1883)  ;  Ferris  v.  Commercial  Nat.  Bank, 
158  111.  237  (1895)  ;  Bonnifield  v.  Thorp,  71  Fed.  924  (i8tj6)  ;  Danville,  etc.. 
P.  Co.  V.  Rhodes,  180  Pa.  157,  36  Atl.  648  (1897)  ;  2  Enc.  PI.  &  Pr.  68i;~23 
Cyc.  1077. 

"  Part  only  of  the  opinion  is  printed. 


HENRY  V.   SPITLER  305 

"The  defendant,  Harry  E.  Henry,  by  his  attorneys  for  the  pur- 
pose hereinabove  stated,  and  under  his  special  appearance  herein 
filed,  respectfully  moves  the  court  to  quash  the  return  of  the  sheriff 
to  the  writ  of  replevin  issued  in  the  above-stated  cause,  upon  the 
following  grounds  and  for  the  following  reasons: 

( 1 )  It  affirmatively  appears  from  said  return  to  the  writ  of  re- 
plevin that  no  eft'ectual  and  valid  service  of  the  same  has  been  made. 

(2)  It  affirmatively  appears  from  said  return  that  this  defendant 
has  not  been  summoned  to  appear  in  said  cause  by  proper  and  ef- 
fectual service  of  process  in  the  manner  required  by  law. 

(3)  It  affirmatively  appears  from,  said  return  that  this  court 
has  never  acquired  jurisdiction  of  the  person  of  this  defendant. 

(4)  And  for  other  good  and  sufficient  reasons  apparent  upon  the 
face  of  the  return  to  the  said  writ  of  replevin. 

Wherefore  the  defendant  prays  that  the  said  return  may  be 
quashed." 

This  motion  was  denied  and  the  defendant  allowed  until  the 
August  rule  day  in  which  to  plead,  on  which  day  he  filed  his  plea  of 
not  gtiilty.  A  trial  was  had  before  a  jury,  which  resulted  in  a  verdict 
in  favor  of  the  plaintiff.  Upon  this  verdict  a  judgment  was  rendered 
and  entered  against  the  defendant  and  the  sureties  upon  his  forth- 
coming bond,  which  judgment  the  defendant  has  brought  here  for 
review. 

The  first  and  second  assignments  are  based  upon  the  denial  of 
the  motion  "to  quash  and  set  aside  the  sheriff's  return  to  the  writ  and 
summons  in  replevin  issued  in  said  cause."  It  is  contended  by  the 
plaintiff  that  these  assignments  have  been  waived  by  the  defendant 
both  by  the  filing  of  his  forthcoming  bond  and  by  subsequently 
pleading  and  going  to  trial  upon  the  merits,  so  that  they  are  not  open 
to  consideration  by  us.  While  there  is  much  conflict  in  the  authori- 
ties upon  this  point,  we  are  of  the  opinion  that  this  contention  must 
be  sustained.  In  fact,  we  are  committed  to  the  doctrine  that  after 
the  denial  of  a  motion  to  set  aside  the  service  of  the  process  by  v;hich 
the  suit  was  commenced  because  there  was  no  legal  service  upon  the 
defendant,  the  defendant  waives  this  point  by  pleading  issuably  to 
the  declarations  and  going  to  trial  upon  the  merits.  Florida  Rail- 
road Co.  v.  Gensler,  14  Fla.  122.  It  is  true  that  subsequent  to  this 
decision  the  point  was  again  before  this  court  and  was  left  tmde- 
termined  because  only  two  members  thereof  participated  therein. 
Mr.  Chief  Justice  Maxwell  held,  as  is  set  forth  in  the  first  headnote 
in  StepJiens  v.  Bradley,  24  Fla.  201,  3  South  Rep.  415:  "If  after 
special  appearance  to  set  aside  service  of  summons,  the  court  re- 
fusing to  set  it  aside,  the  defendant  appears  to  defend  the  action, 
he  will  be  considered  to  have  waived  the  defect  of  service."  Mr. 
Justice  Raney  refused  to  concur  therein  for  the  reasons  stated  in  his 
opinion.  We  think  that  Mr.  Chief  Justice  Maxwell  was  right,  and 
hereby  copy  with  approval  the  following  excerpt  from  his  opinion : 

"The  first  error  assigned  is  against  the  action  of  the  court  in 
overruling  the  motion  'to  cfuash  the  writ  and  in  sustaining  the  serv- 

20 — Civ.  Proc. 


^o6 


ACTIONS 


ice'  \\"e  find  in  the  rcct)r(l  no  motion  to  (jnash  the  writ,  but  only  to 
'quash  the  service  of  the  writ',  antl  as  to  that  it  is  needless  to  specify 
the  fjrounds  of  the  motion,  as  the  error,  if  there  was  one,  was  cured 
under  the  rule  adojitcd  in  this  state,  by  the  conduct  of  the  defend- 
ants in  afterwards  appearing  to  demur  and  file  pleas.  Florida  Rail- 
road Conif^any  v.  Cetislcr  cf  al,  14  Fla.  123.  The  statute  which  au- 
thorizes a  party  to  plead  over  after  his  demurrer  has  been  overruled, 
without  bcinj::  deemed  to  have  waived  the  benefit  of  his  demurrer 
on  appeal  to  this  court,  has  no  appHcation  to  a  case  where  a  party, 
notwithstanding  defective  process  or  defective  service,  of  process, 
waives  his  objections,  whether  overruled  by  the  court  or  not,  by 
apjiearing  generally  to  defend  the  suit." 

We  are  strengthened  in  the  correctness  of  this  conclusion  by  the 
vigorous  and  well  reasoned  opinion  rendered  by  Mr.  Justice  Mar- 
shall in  Corbett  v.  Physicians'  Casualty  Association,  135  Wis.  505, 
115  N.  \\\  Rep.  365,  16  L.  R.  A.  (N.  S.)  177.  The  authorities  upon 
each  side  of  the  question  will  be  found  collected  in  the  case  note 
to  this  opinion  on  page  155  of  16  L.  R.  A.  (N.  S.).  One  of  the 
latest  and  most  strongly  reasoned  opinions  on  the  other  side  of  the 
question  is  that  of  Mr.  Justice  Poffenbarger  in  Fisher  v.  Crowley, 
57  W.  Va.  312,  50  S.  E.  Rep.  422,  4  Ann.  Cas.  282,  the  effect  of 
which  is  weakened,  however,  by  the  forcible  dissenting  opinion  ren- 
dered by  Mr.  Justice  Sanders.  A  valuable  case  note  will  also  be 
found  on  ])age  290  of  4  Ann.  Cas.  Even  if  we  should  hold  that  the 
court  erred  in  the  denial  of  the  motion,  as  to  which  we  express  no 
opinion,  and  should  for  that  reason  reverse  the  judgment,  the  de- 
fendant would  then  be  in  court.  See  Busard  v.  Houston,  65  Fla. 
479,  62  South.  Rej).  483,  follov^dng  prior  decisions  in  holding  that 
"A  writ  of  error  from  what  purports  to  be  a  final  judgment  of  a 
circuit  court  operates  as  a  general  ai)i)earance  in  the  case  of  parties 
taking  the  writ."  Having  reached  this  conclusion,  it  becomes  un- 
necessary to  determine  whether  or  not  the  filing  of  a  forthcoming 
bond  by  the  defendant  in  an  action  of  replevin  constitutes  a  general 
appearance.  Upon  this  point  also  the  authorities  are  in  conflict.  See 
Fowler  v.  Fowler,  15  Okla.  529,  82  Pac.  Rep.  923 ;  Cheatham  v.  Mor- 
rison, 37  S.  C.  187,  15  S.  E.  Rep.  924;  Morrow  v.  Nowell-Shapleigh 
Hardware  Co.,  165  Ala.  331,  51  South.  Rep.  766. 
Affirmed." 


"Accord:  Ltimpley  v.  Beavers,  25  Ala.  534  (1854)  ;  Pry  v.  Hannibal  R. 
Co.,  73  Mo.  123  (1880)  ;  Lycoming  F  S  Co.  v.  Storrs,  97  Pa.  354  (1881); 
Dailey  v.  Kennedy,  64  Mich.  208,  31  IS.  vv.  125  ( i«»7)  ;  :iealy  v.  Cat.  Lnm. 
Co.,  19  Ore.  94,  24  Pac.  197  (1890)  ;  Ruby  C.  M.  Co.  v.  Gurley,  17  Colo.  199, 
29  Pac.  668  (1892)  ;  Thompson  v.  Greer,  62  Kans.  522,  64  Pac.  48  (1901)  ; 
Franklin  L.  I.  Co.  v.  Hickson,  197  111.  117,  64  N.  E.  248  (1902);  Corbett  v. 
Casualty  Assn.,  135  Wis.  505  (iqo8)  :  McCullour/h  v.  Railway  Mail  Asm.. 
225  Pa.  118  (1909)  ;  Farmers  L.  &  T.  Co.  v.  Joseph,  86  Nebr.  256  (1910)  ; 
Scff  V.  Alvin,  181  III.  App.  41  (19T3)  ;  Woodhouse  v.  Nelson  Land  Co.-,  91 
Kans.  823  (1914).  Contra:  Kent  v.  Il'est,  50  Cal.  185  (1875);  Walling  v. 
Peers,  120  Mass.  548  (1876)  ;  Harkness  v.  Hyde,  98  U.  S.  476,  25  L.  ed.  237 
(1878)  ;  Southern  P.  R.  Co.  v.  Denton,  146  U.  S.  202,  36  L.  ed.  942  (1892)  ; 
Baird  V.  Heifer,  12  App.  Div.  (N.  Y.)  23,  42  N.  Y.  S.  484  (1896)  ;  Chandler  v. 
Citizens  Xat.  Bk.,  149  Ind.  601,  49  N.  E.  579  C1897)  ;  Graham  v.  O'Bryan,  120 


WETZEL  V.   COUNTY  OF  HANCOCK  307 

K 

CHARLES  C.  WETZEL  v.  COUNTY  OF  HANCOCK.       v 
Appellate  Court  of  Illinol-,  1908. 
143  ///.  App.  178. 

Ramsay,  J. :  Plaintiff  in  error  brought  suit  against  defendant  in 
error  before  a  justice  of  the  peace  in  Hancock  County  to  recover 
for  services  alleged  to  have  been  performed  by  plaintiff  in  error  for 
the  defendant  in  error.  Summons  vv-as  served  upon  the  county  board 
and  on  return  day  George  V.  Helfrich,  die  state's  attorney  for  said 
county  appeared  on  behalf  of  the  county.  Upon  a  trial  of  the  cause 
before  the  justice  of  the  peace  and  after  all  the  evidence  upon  the 
part  of  plaintiff  in  error  had  been  heard,  the  defendant  in  error,  by 
its  attorney,  entered  a  motion  to  dismiss  the  case  for  want  of  juris- 
diction upon  the  part  of  the  justice  of  the  peace.  This  motion  the 
court  overruled  and  rendered  judgment  in  favor  of  plaintiff  in  error 
in  the  sum  of  $141  and  costs.  An  appeal  u'as  prayed  by  defendant  in 
error  to  the  circuit  court  of  said  county,  which  was  allowed  without 
bond. 

In  the  circuit  court  plaintiff'  in  error  made  a  motion  to  dismiss 
the  appeal  for  want  of  an  appeal  bond,  and  defendant  in  error  re- 
newed its  motion  made  before  the  justice  of  the  peace  to  dismiss  the 
suit  for  want  of  jurisdiction.  The  trial  court  denied  the  former 
motion  and  allowed  the  latter  and  dismissed  the  suit  for  want  of 
jurisdiction  of  subject-matter.  Exception  was  taken  of  the  action 
of  the  court  and  the  case  brought  to  this  court  upon  a  writ  of  error. ^"^ 

Plaintiff'  in  error  next  contends  that  the  justice  of  the  peace  had 
jurisdiction  of  the  subject-matter  involved  and  that  the  trial  court 
erred  in  dismissing  the  suit.  Section  31  of  chapter  34  of  the  Revised 
Statutes  provides  that :  "All  actions,  local  or  transitory,  against  any 
county  may  be  commenced  and  prosecuted  to  final  judgment  in  the 
circuit  court  or  any  court  of  general  jurisdiction  in  the  county 
against  which  the  action  is  brought."  The  word  "may"  in  this  sec- 
tion has  been  held  by  our  Supreme  Court  to  mean  "must."  Randolpii 
County  v.  Ralls,  18  111.  29. 

Since,  under  said  section  31  above  quoted,  all  suits  against  coun- 
ties must  be  brought  in  the  circuit  court  or  a  court  of  general  juris- 
diction in  the  county,  it  follov.'S  as  a  matter  of  course  that  a  justice 
of  the  peace  has  no  jurisdiction  of  the  subject-matter  in  a  suit  in 


N.  Car.  463,  27  S.  E.  122  (1897)  ;  fisher  v.  Crowley,  57  Ind.  312,  50  S.  E.  422 
(1905).  See  also,  Gahrn  v.  Wallace,  206  Mass.  39  (1910)  ;  Meyers  v.  American 
L.  Co.,  201  N.  Y.  163  (1911)  ;  Franklyn  v.  Taylor  H.  Co.,  68  N.  J.  L.  113 
(1902)  ;  Big  p'ein  Coal  Co.  v.  Read,  229  U.  S.  31  (1913).  For  England  see 
Keymer  v.  Rcddy,  L.  R.  (1912)  i  K.  B.  215. 

A  special  appearance  without  more  does  not,  as  a  rule,  give  jurisdiction 
of  the  person.  3  Cyc.  527  and  the  cases  there  cited.  In  Iowa,  Kentucky  and 
Texas  by  statute  a  special  appearance  is  an  appearance  for  all  purposes.  See 
York  V.  Texas,  137  U.  S.  13,  34  L.  ed.  604  (1890)  ;  Maysville  R.  Co.  v.  Ball, 
108,  241,  21  Ky.  L.  1693,  56  S.  W.  188  (1900)  ;  Teller  v.  Equitable  M.  Assn., 
108  Iowa  17,  78  N.  W.  674  (1899). 

^'■Part  of  the  opinion  dealing  with  another  point  is  omitted. 


3a^  ACTIONS 

which  a  counl}-  is  a  dofciidant,  aiul  as  the  justice  of  tlie  peace  in  the 
case  at  bar  haii  no  jurisdiction  of  the  subject-matter  it  could  not  be 
given  him  by  an  appearance  of  the  defendant,  nor  even  by  its  con- 
sent. Lcii/li  V.  Masou,  i  Scam.  249;  Bccsnioi  v.  City  of  Peoria,  16 
III.  488;  ll'iUianis  v.  /ilanhcus/iif',  12  111.  I2T  ;  HigJnvay  Coiiimission- 
i-rs  V.  S)nit/i,  217  111.  260. 

In  Peak  v.  The  People,  71  111.  278,  the  court  say  that  "consent 
of  the  parties  can  not  confer  jurisdiction  u\nm  a  court  in  which  the 
law  has  not  vested  it." 

The  justice  of  the  peace  had  no  jurisdiction  of  the  subject- 
matter  and  the  circuit  court  could,  upon  an  appeal,  acquire  no  juris- 
diction to  try  the  case.  Dodge  v.  77/1^  People,  113  111.  496;  Nigh  v. 
Do7rl,  84  111.  App.  228. 

Plaintiff  in  error  cites  many  cases  in  su])port  of  his  contention 
that  an  appearance  by  appellee  can  be  held  to  give  the  court  juris- 
diction, but  an  examination  of  those  cases  shows  that  the  jurisdic- 
tion there  discussed  was  a  jurisdiction  of  the  person  and  not  a  juris- 
diction of  the  subject-matter. 

Where  a  court  h.as  jurisdiction  of  the  subject-matter  a  party 
mav  confer  jurisdiction  of  his  person  by  an  entry  of  api)carance, 
but  when  the  court  has  no  power  to  hear  and  determine  the  subject- 
matter  involved,  the  question  of  jurisdiction  is  not  waived  by  an 
appearance,  but  may  be  suggested  at  any  time  and  in  any  manner 
that  properly  calls  the  attention  of  the  court  to  that  fact.  Nigh  v. 
Dorel,  84  111.  App.  228;  Tozvn  of  Audubon  v.  Hand,  223  111.  367. 

The  action  of  the  trial  court  in  dismissing  the  suit  was  proper 
and  the  judgment  is  accordingly  affirmed.^'' 


""Appearance  never  confers  jurisdiction,  where  the  subject-matter  is  not 
within  the  jurisdiction  of  the  court."  Per  Adams,  C.  J.,  in  Hynds  v.  Fay,  70 
Iowa  433,  30  X.  W.  683  (1886).  Accord:  Lozv  v.  Rice,  8  Johns.  (N.  Y.)  409 
(1811);  Perkins  v.  Perkins,  7  Conn.  558,  18  Am.  Dec.  120  (1829);  Rhode 
Island  V.  Massachusetts,  12  Pet.  (N.  S.)  657,  9  L.  ed.  1233  (1838);  Osgood 
V.  Thurston,  23  Pick.  (Mass.)  no  (1839);  Brozvn  v.  Webber,  60  Mass.  560 
(1850);  Broicn  Bros.  &  Co.  v.  Bank  of  Mississippi,  31  Miss.  454  (1856); 
Ind.  &  C.  R.  Co.  V.  Rcnner,  17  Ind.  135  (1861)  ;  White  v.  Hampton,  14  Iowa 
66  (1862)  ;  Rahilly  v.  Lane,  15  Minn.  447  (1870)  ;  Wheelock  v.  Lee,  74  N.  Y. 
495  (1878)  ;  Pine  Saiv  Logs  v.  Sias,  43  Mich.  356,  5  N.  W.  414  (1880)  ;  Prvin 
V.  Oregon  R.  Co.,  62  How.  Pr.  (N.  Y.)  490  (1882)  ;  The  Monte  A,  12  Fed.  331 
(1882J  ;  Sunier  v.  Miller,  105  Ind.  393,  4  N.  E.  867  (1885)  ;  The  Norma,  32 
Fed.  411  (1887)  ;  The  Berkeley,  58  Fed.  920  (1893)  ;  ■'^tate  v.  Manitowoc,  92 
Wis.  546,  66  N.  W.  702  (1896)  ;  Butterick  v.  Richardson,  39  Ore.  246,  64  Pac. 
390  (\qoi) -.linct lis h  v.  English  i()  Pa.  Super.  Ct.  586  (1902);  Nixon  v. 
Piedmont  hfuflns.  Co.,  74  S.  Car.  438  (1906);  Murphy  v.  People,  221  111. 
127  (1906)  ;  Riley  v.  Southern  R.  Co.,  81  S.  Car.  387  (1908)  ;  West  Cove  G. 
Co.  V.  Bartlev,  105  Maine  293  (1909)  ;  Rcid  v.  Reid,  72  Misc.  (N.  Y.)  214 
(IQII):  Leu.'i.<;bur(i  Bridge  Co.  v.  UnioJi  Cnutity,  etc,..  232  Pa.  255  (1911); 
Wolf  V.  McGaugh,  175  Ala.  299  (1912)  ;  St.  Louis  v.  Glasgow,  254  Mo.  262 
0913)- 


r 


KING  ■:/.  WILMINGTON,  ETC.,  RY.   CO.  309 


(c)   Statement  of  Plaintiff's  Claim. 


KING  V.  WILMINGTON  AND   NEW  CASTLE  ELECTRIC 
RAILWAY  COMPANY. 

Superior  Court  of  Delaware,  1898. 
I  Pennezv.  (Del.)  452. 

Superior  Court,  New  Castle  County,  November  Term,  1898. 

Lore,  C.  J. :  The  plaintiff's  declaration  contains  four  counts  for 
injuries,  alleged  to  have  been  received  by  him,  by  having  been  thrown 
from  one  of  the  defendant's  electric  railroad  cars,  through  the  care- 
lessness and  negligence  of  the  defendant. 

The  defendant  demurs  specially  to  each  of  the  four  counts  of 
the  plaintiff's  declaration.^" 

The  substance  of  the  demurrer  is,  that  the  plaintiff  has  not  setl 
forth  in  his  declaration  the  facts  of  his  claim  with  sufficient  certainty 
to  ay)piise  tlie  defendant  of  what  is  intended  to  be  proved. 

The  rule  of  pleading  in  cases  of  this  character  is  quite  clear.  The 
plaintiff  must  set  forth  in  his  declaration  the  facts  of  his  claim,  with 
such  certainty  as  reasonably  to  inform  the  defendant  what  is  pro- 
posed to  be  proved  in  the  case;  so  that  the  defendant  may  have  a 
fair  opportunity  to  meet  such  facts  in  preparing  his  defence. 

It  is  the  purpose  of  pleading  to  reasonably  and  fairly  disclose  the 
facts  of  the  case  and  not  to  conceal  them,  ir'leadings  should  not  be 
used  as  the  means  of  concealing  the  facts  by  vague  and  general 
terms.  Time,  place  and  circumstances,  so  far  as  relied  on  and  with- 
in the  knowledge  of  the  party,  must  be  specified ;  and  that,  too,  with 
reasonable  fullness  and  fairness.  Any  other  rule  would  make  plead- 
ing the  medium  of  concealing  the  facts  of  the  case,  except  so  far  as 
might  be  necessary  to  bring  it  within  the  least  possible  legal  cer- 
tainty. 

Chitty  epitomizes  the  rule  in  this  definition:  "A  declaration  is 
the  specification  in  methodical  and  legal  form  of  the  circumstances 
which  constitute  plaintiff's  cause  of  action."  2  Chitty's  Pleading 
240. 

It  is  not  sufficient  to  state  a  mere  conclusion  of  law. 

It  is  not  sufficient  to  state  the  result  or  conclusion  of  fact,  arising 
from  circumstances  of  the  case  not  set  forth  in  the  declaration. 

While  some  Western  states  have  adopted  a  different  rule,  yet  by 
the  best  considered  cases,  it  is  not  sufficient  merely  to  allege  gener- 
ally the  negligence  and  carelessness  of  the  defendant,  without  giving 
any  particulars  of  such  negligence,  even  in  the  case  of  passengers. ^^ 

'"  Part  of  the  opinion  is  omitted. 

^^  Bolin  V.  Southern  R.  Co.,  65  S.  Car.  222  (1902)  ;  Wilkins  v.  Standard 
Oil  Co.,  70  N.  J.  L.  449  (1904)  ;  Norfolk  &  W.  R.  Co.  v.  Stcgall,  105  Va.  538 
(1906)  ;  Cumberland  T.  &  T.  Co.  v.  Pierson,  170  Ind.  543  (1908).  Compare: 
Greinke  v.  Chicago  C.  R.  Co.,  234  111.  564  (1908)  ;  Gresh_v^  IVanamaker,  221 
Pa.  28  (1908).  A  general  averment  of  negligenceTs  good^^gainsT"^— grmeral 
demurrer.  Chicago  v.  Schtvab,  202  111.  545  (1903),  but  not  against  a  special 
demurrer,  Palmer  Brick  Co.  v.  Chenall,  119  Ga.  837  (1904). 


3IO  AlTIONS 

In  the  statoiiioiU  of  facts  in  plcading^s,  Chitty  announces  a  rule 
which  practically  solves  this  case.  "A  jj^eneral  statement  of  facts, 
which  atiniits  of  ahnost  any  proof  to  sustain  it  is  ohjcctionahle."  2 
(.'hitty's  rieadinij  231. 

.\pi)lyini^  these  rules  to  the  declaration  in  this  case,  we  find  that 
the  second,  thirtl  and  fourth  counts  are  sufficient. 

The  second  count  charges  the  defendant  with  "so  negligently 
and  carelessly  omitting  and  neglecting  to  use  pr<)])er  care  and  cau- 
tion in  running  one  of  its  cars  wherein  the  said  plaintiff  was  then 
and  there  a  passenger  for  hire,  that  said  car  ran  from  the  rail  with 
great  force  and  violence,"  whereby  the  i)laintilT  was  thrown  out  and 
injured. 

The  third  charges  the  defendant  with  "negligently  and  carelessly 
running  two  cars,  upon  one  of  which  the  said  plaintiff  was  then 
riding  as  a  passenger  for  hire,  upon  a  certain  track,  which  was  then 
and  there  through  the  negligence  and  carelessness  of  the  said  de- 
fendant improper  and  unsafe,"  whereby  the  car  was  thrown  from 
the  track  and  the  plaintitT  thereby  thrown  to  the  ground  and  injured. 

The  fourth  count  charges  the  defendant  with  "so  negligently  and 
carelessly  running  a  certain  car  in  wdiich  the  plaintiff  was  then  and 
there  a  passenger  for  hire  and  was  then  riding,  that  the  said  car 
jumped  from  the  track,"  thereby  causing  the  injviry. 

While  the  facts  set  forth  in  these  three  counts  are  meagre,  yet 
they  are  sufficient  in  law,  inasmuch  as  they  specify  circumstances 
relied  on ;  such  as  the  car  ran  from  the  rail  from  the  negligent  run- 
ning of  the  defendant ;  the  car  was  thrown  from  the  track  by  reason 
of  an  improper  and  unsafe  track;  that  the  car  jumped  from  the 
track;  by  reason  of  the  defendant's  careless  running.  These  speci- 
fications direct  the  defendant  to  the  ])eculiar  circumstances  wdiich 
are  alleged  to  have  caused  tlie  injury. 

Applying  the  same  test,  the  first  count  in  the  declaration  is  mani- 
festly insufficient.  It  charges  the  defendant  with  "so  negligently  and 
carelessly  operating  a  certain  electric  car  which  it  was  then  and 
there  running  for  the  carriage  of  persons  for  hire,  that  thereby  the 
said  plaintiff,  who  was  then  and  there  a  passenger  on  said  car,  was, 
through  the  negligence  and  carelessness  of  the  said  defendant  as 
aforesaid,"  thrown  from  the  car  and  injured. 

This  averment  is  simply  the  bald  statement,  that  the  defendant 
so  negligently  and  carelessly  operated  a  car  that  the  plaintiff  was 
thrown  from  the  car  and'  injured.  Negligently  operating  a  car,  is  a 
very  general  statement,  involving  a  multitude  of  possible  circum- 
stances of  negligence,  with  not  one  single  fact  or  circumstance 
stated ;  which  comes  within  Chitty's  rule  of  admitting  almost  any 
]»roof  to  sustain  it.  It  is  more  in  the  nature  of  a  statement  of  a  con- 
clusion of  fact,  and  contains  none  of  the  elements  of  good  pleading. 
It  gives  the  defendant  no  specific  fact  to  meet  or  defend,  but  turns 
him  loose  among  a  multitude  of  ])ossible  causes  of  negligence  com- 
ing within  the  term  negligently  operating  a  car. 

The  plaintiff  justifies  in  part  that  the  allegation  of  negligence  is 
that  contained  in  the  form  given  in  2  Chitty  650.  Examination  shows 


MOORE  V.   IIOBBS  3II 

that  this  count  is  in  marked  contrast  with  the  s])ecific  statement  of 
fact  contained  in  that  form. 

We  do  not  mean  to  say  that  the  plaintiff  is  always  bound  to  set 
forth  facts  or  circumstances,  the  knowledge  of  which  is  more  prop- 
erly or  peculiarly  in  the  opposite  party,  or  to  detail  the  circumstances 
minutely ;  but  that  such  circumstances,  as  he  does  know  and  must 
have  contemplated  and  relied  on  when  he  framed  his  declaration, 
and  are  reasonably  necessary  for  the  defendant's  information,  should 
be  specified  with  reasonable  certainty.  To  this  he  is  unquestionably 
held  by  all  the  rules  of  good  pleading. 

The  demurrer  therefore  to  the  first  count  is  sustained.  The 
demurrers  to  the  second,  third  and  fourth  counts  are  overruled.^" 


/T 


MOORE  V.  HOBBS. 

Supreme  Court  of  North  Carolina,  1878. 

79  N.  Car.  535- 


Civil  action  tried  at  Spring  Term,   1878,  of  Chowan   Superior 
Court,  before  Furches,  J. 
The  plaintiff  complains : 

1.  That  the  defendants  are  indebted  to  him  in  the  sum  of  $488.70 
at  eight  per  cent,  interest  per  annum  from  the  ist  day  of  December, 

1875- 

2.  That  no  part  of  said  debt  has  been  paid. 

3.  Therefore  the  plaintiff  demands  judgment  against  the  de- 
fendant (for  said  sum)  and  costs. 

The  defendants  demur : 

Because  the  facts  stated  in  said  comj-)laint  are  insufficient  to  con- 
stitute a  cause  of  action,  in  that,  it  does  not  contain  a  plain  and  con- 
cise statement  of  the  facts  constituting  the  plaintiff's  cause  of  action. 

The  court  overruled  the  deniui;rg,r  and  offered  to  allow  the  de- 
fendants To  answer,  which  they  refuse  to  do.  Thereupon  judgment 
was  rendered  upon  the  complaint  in  favor  of  the  plaintiff  for  the 
sum  demanded,  and  the  defendants  appealed. 

Reade,  J. :  "A  declaration  is  a  specification  in  a  methodical  and 
legal  form  of  the  circumstances  which  constitute  the  plaintiff's  cause 
of  action."  i  Chitty,  i'l.  240.  Observe,  that  it  is  not  to  state  that 
there  is  a  cause  of  action,  but  the  "circumstances"  which  constitute 
the  cause  of  action.  "The  general  requisites  or  qualities  of  a  declara- 

"  "The  purpose  of  a  declaration  is  to  inform  the  defendant  of  the  nature 
of  the  demand  made  upon  him.  The  facts  must  be  stated  with  sufficient  cer- 
tainty to  be  understood  by  the  defendant,  who  has  to  answer  them;  by  the 
jur>-,wno  have  to  inquire  into  their  truth ;  and  by  the  cotirt.  which  has  to 
Tender  the  judgment."  Lane  v.  Scakford,  106  Va.  93  (1906).  See  also, 
Beardslcy  v.  Sonthmayd,  14  N.  T.  L.  534  (1834);  Read  v.  Smith,  83  Mass. 
519  (1861)  ;  Gere  v.  linger,  125  Pa.  644,  17  Atl.  511  (1889)  ;  ^Barr_y_^.McGni-y, 
131  Pa.  401,  ly  All.  4S'  (i8yy)  ;  Bill  Posting  S.  Co  v.  Jerome,  27  Pa.  Super. 
Ct.  171  (1905)  ;  Cassidy  v.  Richardson,  74  i\.  H.  221  (1907)  ;  Stone  v.  Pen- 
dleton, 21  R.  I.  332  (1899)  ;  Haines  v.  Rogers,  73  N.  J.  L.  51  (1905)  ;  Royal 
Phosphate  Co.  v.  I'an  Ness,  53  Fla.  135  (1907). 


312  ACTICtXS 

til)!!  are,  *  *  *;  second,  that  it  contain  a  statement  of  all  the  facts 
necessary  in  point  of  law  to  sustain  the  action,  and  no  more;  third 
that  these  circumstances  be  set  forth  with  certainty  and  truth."  i 
Chittv,  ri.  244.  Observe  again,  that  "all  the  facts  are  to  be  set  forth. 
If  a  declaration  in  debt  be  upon  simple  contract,  the  consideration 
must  be  set  forth  with  the  other  facts.  If  it  be  upon  a  specialy,  the 
sjiecialty  must  be  set  forth,  and  that  imports  a  consideration.  Chitty, 
PI.  362,  363.  The  form  of  a  declaration  on  simple  contract  is  as 
follows :  A  B,  the  plaintiff  in  this  suit  *  *  *  comi)lains  of  C  D,  the 
defendant,  in  this  suit  *  *  *  for  that,  whereas  the  defendant  on  — 
was  indebted  to  the  plaintifif  in  $ —  for  the  price  and  value  of  goods 
then  sold  and  delivered  by  the  plaintiff  to  the  defendant  at  his  re- 
quest, etc.,  or  for  the  price  and  value  of  work  then  done,  etc.,  or  for 
money  lent,  etc.  Arch,  N.  I\  297.  The  form  of  a  declaration  on 
specialty  is  as  follows:  A  B,  the  plaintiff,  etc.,  complains,  etc. 
Whereas,  the  defendant,  etc.,  by  his  certain  writing  obligatory  sealed 
with  his  seal,  and  now  shown  to  the  court,  etc.,  acknowledged  him- 
self to  be  held  and  lirmly  bound  unto  the  plaintiff  in  the  sum  of  $ — , 
etc.,  Arch,  N.  P.  304.  A  defect  in  the  declaration  appearing  on  the 
face  of  it  could  be  taken  advantage  of  by  demurrer. 

It  is  plain  therefore  that  under  the  former  mode  of  pleading,  the 
declaration  in  this  case  is  fatally  defective.  It  states  a  cause  of 
action,  viz.,  indebtedness ;  but  it  states  not  one  single  "circumstance" 
or  "fact"  constituting  the  cause.  But  then  it  is  said,  "that  all  the 
forms  of  pleading  heretofore  existing  are  abolished."  C.  C.  P.,  sec. 
91.  True,  but  still,  all  form  is  not  abolished,  for  the  same  C.  C.  P., 
sees.  91,  92,  prescribes,  "that  the  complaint  shall  contain  a  plain  and 
concise  statement  of  the  facts  constituting  the  cause  of  action  with- 
out unnecessary  repetition,  and  each  material  allegation  shall  be 
distinctly  numbered." 

Observe,  that  in  the  new,  as  in  the  old  form,  the  facts  constitut- 
ing the  cause  of  action  must  be  stated,  w^ith  this  addition  in  the  new 
over  the  old,  that  each  material  fact  shall  be  separately  numbered. 
The  object  of  the  declaration  in  the  old  forms  was  to  inform  the 
defendant  fully  as  to  the  facts,  so  that  he  might  make  his  defense 
both  by  the  proper  pleas  and  by  proofs,  and  that  the  jury  and  the 
court  might  see  what  they  had  to  try  and  to  decide.  This  was  not  a 
matter  of  mere  form,  but  of  substance.  And  there  has  been  no  relax- 
ation of  the  requisite  in  the  new  form,  and  no  alteration  from  the 
old,  except  to  require  the  greater  particularity  of  separately  num- 
bering every  material  fact.  Why  require  them  to  be  numbered  if 
they  are  not  required  to  be  stated? 

I  /There  is  not  in  this  case  a  single  fact  stated  to  show  whether  the 
'complainant  is  on  a  simple  contract  for  goods  sold  and  delivered,  or 
'for  work  and  labor,  or  for  money  lent,  or  for  any  like  matter,  or 
j  whether  it  is  upon  a  bond  or  other  specialty,  or  whether  it  be  not 
for  some  alleged  tort. 

Reversed  and  remanded.'" 


^"Pomerov's  Civil  Remedies  (4th  ed.),  §  411,  et  seq.;  People  v.  Ryder, 
12  X  Y.  433  (1855)  ;  Green  v.  Palmer,  15  Cal.  411  (i860)  ;  Rogers  v.  Milwau- 
kee, 13  Wis.  610  (1861);  Cline  v.  Cline,  3  Ore.  355   (1871);   H^iH^  v.  IVills, 


PEOPLES  BANK  V.  NICKERSON  313 


p    PEOPLES  NATIONAL  BANK  v.  NICKERSON. 

Supreme  Judicial  Court  of  Maine,  1910. 
106  Maine  502. 

Real  action  to  recover  several  tracts  of  land  in  Pittsfield,  Som- 
erset county.  At  the  return  term  of  the  writ,  the  defendant  filed 
a  special  demurrer  to  the  declaration.  The  presiding  justice  pro 
forma  overruled  the  demurrer  and  the  defendant  excepted. 

The  declaration  in  the  plaintiff's  writ  is  as  follows : 

"In  a  plea  of  land  wherein  the  plaintiff  demands  of  the  defend- 
ant a  lot  of  land  situated  in  said  Pittsfield  and  bounded  and  de- 
scribed as  follows,  to  wit:    (Description  omitted  in  this  report.) 

"Also  another  lot  situated  in  said  Pittsfield  and  bounded  and 
described  as  follows,  to  v/it:    (Description  omitted  in  tliis  report.) 

"Also  another  lot  situated  in  said  Pittsfield  and  bounded  as  fol- 
lows, to  wit:    (Description  omitted  in  this  report.) 

"Also  another  lot  of  land  situate  in  said  Pittsfield  and  bounded 
and  described  as  follows,  to  wit :  (Description  omitted  in  this  report.) 

"Whereof  the  defendant  was  seized  in  fee  simple  within  twenty 
years  last  past  and  whereof  the  defendant  within  said  time  unjustly 
and  without  judgment  of  law  disseized  the  demandant  and  still  un- 
justly  withholds  said  premises  from  it  and  the  demandant  further 
avers  that  the  defendant  lias  "been  in  possession  of  said  premises 
since'lhe  nth  day  of  May,  1908,  receiving  the  rents  and  profits 
thereof  during  all  that  time  which  the  demandant  avers  are  reason- 
ably worth  fifteen  dollars  ($15.00)  per  month  which  it  claims  to 
recover  in  this  action." 

King,  J.:  The  sole  cjuestion  presented  in  this  case  is  whether  a- 
declaration  in  a  writ  of  entry  containing  in  one  count  several  distinct' 
tracts  of  land  is  bad-for  dupJicitv.  ( 

"Duplicity  in  a  declaration  consists  in  joining  in  one  and  the 
same  count,  different  grounds  of  action,  of  different  natures,  or  of 


same  nature,  to  entorce  only  a  single  right  of  recoxery."    Gould 
)n  Pleading  (5th  ed.),  page  205,  sec.  99.-^ 


34  Ind.  106  (1870)  ;  LouxsvxUe  &  P.  C.  Co.  v.  Murphy,  9  Bush  (Ky.)  522 
(1872)  ;  Yorn  v.  Bracken,  153  Ind.  492  (1899)  ;  Phelan  v.  Vestner,  125  Ga. 
825  (1906);  Kiblinger  Co.  v.  Sank  Bank,  131  Wis.  595  (1907);  Pennington 
V.  GiUaspic,  63  W.  Va.  541  (1908)  ;  Levering  v.  ll'ehb  P.  Co.,  106  Minn.  62 
(1Q08)  ;  Smyihc  v.  Cleary,  127  App.  Div.  (N.  Y.)  555  (1908)  ;  Rnshin  v.  Cen- 
tral Georgia  R.  Co.,  128  Ga.  726  (1907). 

The  New  York  Code  of  Civ.  Pro.,  §  481,  provides:  "The  complaint 
must  contain:  (i)  the  title  of  the  action,  specifying  the  name  of  the  court 
in  which  the  action  is  brought;  if  it  is  brought  in  the  Supreme  Court,  the 
name  of  the  county,  which  the  plaintiff  designates  as  the  place  of  trial ;  and 
the  names  of  all  the  parties  to  the  action,  plaintiff  and  defendant.  (2)  A 
plain  and  concise  statement  of  the  facts  constituting  each  cause  of  action 
without  unnecessary  repetition.  (3)  A  demand  of  the  judgment  to  which 
the  plaintiff  supposes  himself  entitled. 

■^  For  example,  where  several  causes  of  action  on  different  contracts  are 
stated  in  one  count.  Blonie  v.  IVahl-Henues  Institute,  150  111.  App.  164 
(1909).    So,  where  a  declaration  for  injury  to  an  employe  charged   (i)   dul- 


314  ACTION'S 

In  C'hitty  im  ricailiiijj  ( ifnii  ccl.),  vol.  I,  star  jiaj^c  249,  it  is  said: 
"'i'hc  plaiiititY  can  not,  l)v  the  common-law  nilc,  in  order  to  sustain  a 
single  demand,  rely  upon  two  or  more  distinct  j^i'^^^^inds  or  matters, 
each  of  which,  independently  of  the  other,  amounts  to  a  good  cause 
of  action  in  respect  to  such  demand." 

Mr.  Stephen  in  his  work  on  Pleading  says,  i>age  242,  "that  the 
declaration  must  not,  in  suppc^'t  of  a  single  demand,  allege  several 
matters,  by  any  one  of  which  that  demand  is  sufficiently  supi)orted." 

The  distinction  between  the  combining  in  one  count  of  several 
distinct  causes  of  action  and  duplicity  must  be  kept  clearly  in  mind. 
That  distinction  was  aptly  stated  in  H'uison  v.  Thompson,  8  U.  C. 
B.  561,  562,  where  the  court  said:  "Dui>licity  in  a  count  consists 
in  supporting  the  same  claim  on  several  distinct  grounds,  not  in 
laying  several  injuries  in  one  count." 

A  declaration,  therefore,  is  not  bad  for  duplicity  because  more 
than  one  cause  of  action  is  set  forth  in  one  count,  provided  not 
more  than  one  independent  and  sufficient  ground  or  matter  is  therein 
alleged  in  support  of  a  single  demand  or  right  of  recovery. 

In  Piatt  V.  Jones,  59  ]\Iaine,  i)age  242,  it  is  said:  "It  is  not  quite 
accurate  to  say  that  two  causes  of  action  in  one  count  render  it 
double.  Several  items  of  account  may  be  very  properly  embraced 
in  one  count,  and  yet  each  one  of  those  items  might  be  a  good  cause 
of  action.  So  in  the  case  of  several  trespasses  upon  the  same  lot  of 
land." 

It  will  be  seen  u])on  examination  oi  the  declaration  before  us 
that  it  does  not  violate  the  rule  against  duplicity.  The  pleader  has 
set  forth  as  bTsclemand,  or. right  of  recovery,  the  right  to  Oie  pos- 
srs,',)'!  of 'four  distinct  tracls  of  land;  the  ground  or  matter  alleged 
in  suj^i^ort  of  his  demand,  ur  right  of  recovery,  is  that  the  defendant 
liarclisseized  him"  of  those  tracts.  If  the  declaration  is  to  be  con- 
strued as  setting  forth  in  one  count  a  separate  demand  for  each  of 
those  tracts,  rather  than  a  demand  for  them  all  combined,  there  is  no 
duplicity,  because  there  is  no  allegation  of  more  than  one  ground 
relied  upon  in  support  of  each  single  demand.  In  other  words,  if 
there  is  but  one  demand,  or  right  of  recovery,  set  forth — that  is, 
the  demand  of  the  combined  tracts  then  there  is  but  one  ground 
relied  upon  in  support  of  that  demand — the  defendant's  disseizin ; 
on  the  other  hand,  if  there  is  set  forth  a  distinct  demand,  or  right 
of  recovery,  for  each  tract,  still  there  is  but  one  ground  relied  upon 
in  support  of  any  of  those  distinct  demands — the  defendant's  dis- 
seizin.   In  neither  case  would  the  declaration  be  bad  for  duplicity." 

Ivxceptions  overruled.-"' 


ncss  of  circular  saw  teeth;  (2)  irregularity  in  the  set  of  the  teeth;  (3)  fail- 
ure to  instruct  plaintiff  how  to  operate  the  saw.  Ferguson  v.  National  SIioc- 
makcrs,  loS  Maine  189  (ion). 

"  Part  of  the  opinion  is  omitted. 

^Accord:  Burgess  v.  Freelove,  2  Bos.  &  Pul.  425  (1801)  ;  Den  v.  Snozv- 
hill,  13  N.  J.  L.  23  (1831)  ;  M.ain  v.  School  District.  18  Conn.  214  (1846); 
Hotchkiss  V.  Butler,  18  Conn.  287  (1847);  Wilder  v.  McCormick,  2  Blatch. 
C.  C.  31  (1846);  Fisk  V.  Tank,  12  Wis.  276  (i860);  Cracraft  v.  Cochran, 
16  Iowa  301  (1864)  ;  Earl  v.  Tupper,  45  Vt.  275  (1873)  ;  Rice  v.  Coolidge,  121 


GAINESVILLE,  ETC.,  ELEC.   R.   CO.  V.  AUSTIN  315 

GAINESVILLE  AND  DAHLONEGA  ELECTRIC  RAILWAY 
COMPANY  V.  AUSTIN. 

Supreme  Court  of  Georgia,  1905. 
122  Ga.  823. 

The  petition  contained  three  counts.  In  the  first  count  it  was 
alleged,  that  the  plaintiff  was  a  passenger  in  one  of  the  electric  cars 
of  the  defendant,  in  which  no  seats  were  provided,  and  that  he  was 
therefore  compelled  to  stand ;  that  in  the  center  of  the  car  was  a 
post,  upon  the  top  of  which  rested  the  trolley-pole;  that  while  the 
car  was  in  motion  the  conductor  negligently  caused  and  allowed  the 
trolley-wheel  to  get  off  the  wire,  and  the  trolley-pole  shot  upward ; 
that  the  trolley-wire  began  to  sag,  and  the  trolley-pole  began  to  stri]> 
the  guy-wires  off  the  trolley-wire;  that  the  trolley-wire,  with  its 
deadl}  electric  current,  was  thus  caused  to  fall  down  and  among 
the  unprotected  passengers  on  the  car ;  that  there  was  no  roof  on  the 
car  to  keep  the  Vvire  off',  and  it  came  in  contact  with  the  passengers, 
shocking  them  and  causing  lurid  flashes  of  fire ;  that  the  car  was  run- 
ning 20  to  30  miles  per  hour,  and  the  employes  in  charge  of  the  car 
took  no  steps  to  stop  it,  or  to  prevent  the  electric  current  from  strik- 
ing the  passengers ;  that  the  plaintiff  was  considerably  shocked,  and 
the  emergency  was  great,  and,  being  dazed  and  shocked  and  in  dire 
extremity,  jumped  from  the  car  to  the  ground,  and  in  so  doing  was 
seriousl)^  injured.  \'arious  acts  of  negligence  were  charged  against 
the  defendants.  The  third  count  contained  allegations  similar  to 
those  of  the  first  count,  except  that  it  was  averred  that  by  the  falling 
of  the  wire  the  plaintiff'  was  "thrown  and  hurled"  from  the  car. 
The  defendant  demurred  to  each  count  on  various  grounds,  to  the 
jjetition  generally  on_tlie  ground  tjiat  it  is  contradictory  and  uncer- 
tain, and  to  th'e'tHird  count  on  the  ground  that  it  contradicts  the  first 
^Trd'-s^roTid  cduhts;  "The  court  struck  the  second  count,  and  over- 
ruTed  the  demurrer  as  to  the  remainder  of  the  petition.  The  defend- 
ant excepted. 

Cobb,  J.:  The  special  demurrer  was  designed  to  raise  objection 
that  the  first  and  third  counts  contained  contradictory  allegations  as 
to  the  manner  in  v/hich  the  injury  complained  of  occurred;  and  the 
c|uestion  is  presented  whether  this  practice  is  allowable  in  this  state. 
The  rules  of  the  common-law  pleading  permitted  the  bringing  of  one 
suit   founded   upon   several    causes  of  action   of   a   similar  nature. 


Mass.  393  (1876)  •  ^"f-mcr  ""  rmuyi^  97  Pa.  503  (1881)  ;  Devino  v.  Central 
Vt.  R.  Co.,  63  Vt.  98  (1890)  ;  Oliver  v.  Perkins,  92  Mich.  304  (1892)  ;  State  v. 
IVarren,  yy  Md.  121  (1893);  Waterman  Co.  v.  Waterman,  40  App.  Div.  (N. 
^•)  530  (1899).  Otherwise  where  two  or  more  distinct  primary  rights  are 
sought  to  be  enforced  or  two  or  more  distinct  wrongs  redressed.  English  v. 
Purser,  6  East  395  (1805)  ;  Handy  v.  Chat  field,  22,  Wend.  (N.  Y.)  35  (1840)  ; 
Swinney  v.  Nave,  22  Ind.  178  (1864)  ;  Overbagh  v.  Oalhout,  90  Hun  (N.  Y.) 
506  (1895)  ;  Alabama  G.  S.  R.  Co.  v.  Shahan,  116  Ala.  302  (1896)  ;  Gore  v. 
Condon,  87  Aid.  368  (1898)  ;  Southern  R.  Co.  v.  Hanby,  "166  Ala.  641  (1910). 
See  also  Secor  v.  Sturgis,  16  N.  Y.  548  (1858)  at  p.  558. 


3i6  Ai  iio.Ns 

provided  such  causes  of  action  were  set  forth  in  separate  and  distinct 
counts.  A  declaration  which  contained  one  count  and  set  fordijwo 
or  more  causes  of  action  therein  was  bad  for  duplicity,  butc^^ecla- 
ration  which  contained  two  or  more  distinct  counts  upon  sep.arate 
causes  did  not  violate  the  rule  against  duplicity.  If  the  declaration 
coiTtVmed  more  tlian  one  count,  and  the  transaction  set  forth  was 
exactly  the  same  in  each,  the  pleading  was  bad,  and  the  surplus 
counts  would  be  stricken  therefrom,  and  in  some  cases  the  cost 
would  be  placed  upon  the  attorney  responsible  for  the  surplusage. 
But  if  the  counts  differed  in  any  substantial  particular  from  each 
other,  each  was  allow^ed  to  stand,  upon  a  fiction  that  each  was  a  dif- 
ferent cause  of  action.  The  rule  permitting  various  counts  setting 
forth  different  causes  of  action  of  a  similar  nature  gave  rise  to  the 
practice  of  the  pleaders  in  setting  forth  one  cause  of  action  in  vari- 
ous wavs  in  different  counts,  in  order  to  meet  the  probable  variations 
in  proof  that  might  occur  at  the  trial.  While  as  matter  of  fact  there 
may  have  been  only  one  transaction,  a  declaration  containing  several 
counts  would  be  allowed  to  stand  where  there  was  any  material 
difference  in  the  way  in  which  the  details  of  the  transaction  was  set 
forth ;  the  declaration  on  its  face  thus  appearing  to  be  upon  several 
causes  of  action,  and  therefore  within  the  rule  above  referred  to. 
See  Gould  on  Pleading,  164,  208;  Stephen  on  Pleading  (Heard), 
266;  I  Chitty  on  Pleading,  424;  Phillips  on  Code  PI.,  sees.  124,  206; 
5  Encyc,  P.  &  P.  319  (ii).-'*  The  common-law  practice  of  allowing 
two  or  more  causes  of  action  of  a  similar  nature  to  be  joined  in  the 
same  declaration  has  been  incorporated  into  the  code  of  this  state. 
The  rule  allowing  several  counts  was  substantially  and  materially 
changed  by  the  rules  of  practice  adopted  in  England  in  1833,  under 
w-hich  two  or  more  counts  were  generally  not  permissible  where  it 
was  apparent  that  they  were  ba.sed  upon  the  same  transaction.  See 
I  Chitty,  PI.  749;  Stephen,  PI.  (Heard)  277.  The  reason  given  for 
the  abolition  of  several  counts  by  the  English  r^lles  of  practice  of 
1833  was  that  the  right  to  amend  had  been  greatly  enlarged,  and 
there  was  therefore  no  longer  any  necessity  for  stating  the  cause  of 
action  in  various  ways.^^  Under  the  present  law  of  this  state  the 
right  of  amendment  is  even  more  liberal  than  it  was  in  England  in 
1833,  but  this  does  not  entirely  dispense  with  the  desirable  results 
reached  by  the  use  of  several  counts;  for  v^^hile  the  plaintiff  may 
amend  to  adjust  his  pleading  to  the  evidence,  the  amendment  may 
be  of  such  a  character  as  to  cause  surprise  to  the  opposite  party  and 
v.-ork  a  postponement  of  the  case,  and  several  counts  can  be  well 


^*  Nelson  v.  Griffiths,  2  Bingh.  412  (1824)  ;  Frazer  v.  Shaw,  7  Dow).  &  R. 
383  (1825);  Little  V.  Blunt,  30  Mass.  473  (1833)  ;  Cole  v.  Sprawl,  35  Maine 
161  (1852)  ;  Blaurcgard  v.  Webb  Granite  Co.,  160  Mass.  201  (1893)  ;  Winters 
ji_JU^wr-^>^-JLJEa.   Super.  Ct.  47    (1895);   Rawlinson  v.  Shaiv,   117   Mich.  S^ 
(189S)  ;  Farquhar  v.  Farquhar,  194  Mass.  400  (1907)- 

"  In  Enjrland  the  rules  of  the  Supreme  Court,  order  19,  rule  4,  now  pro- 
vide :  "Every-  pleadinp  shall  contain  and  contain  only,  a  statement  in  a  surn- 
mar\-  form  of  the  material  facts  on  which  the  party  pleading  relies  for  his 
claim  or  defence,  as  the  case  may  be,  but  not  the  evidence  by  which  they  are 
to  be  proved,  and  shall,  when  necessary,  be  divided  into  paragraphs,  numbered 
consecutively." 


HITCHCOCK  V.   MUNGER  317 

used  to  avoid  tlie  probability  of  delay  which  would  result  from  the 
use  of  one  when  the  evidence  varies  from  the  allegations  and  makes 
an  amendment  necessary.  The  changes  made  by  the  English  rules 
of  practice  of  1S33  have  never  been  adopted  by  the  General  Assem- 
bly or  by  the  judges  as  rules  of  practice  in  this  state;  and  a  plaintiff 
may  in  different  counts  set  forth  the  same  cause  of  action  in  various 
ways. 

When  the  first  and  third  counts  in  the  petition  are  tested  by  the 
prevailing  rules  of  practice  in  this  state,  it  will  appear  that  there  is 
at  least  one  substantial  difference  betv/een  the  two.  In  the  first 
count  it  is  alleged  that  the  plaintiff  "jumped"  from  the  car,  and  in 
the  third  count  that  he  vras  "thrown  and  hurled"  from  the  car. 
While  each  count  sets  forth  a  cause  of  action  having  for  its  basis 
apparently  the  same  transaction,  the  causes  of  action  in  the  two 
counts  are  not  the  sam.e,  and  in  determining  liability  different  proof 
vvould  be  required  and  different  rules  of  law  would  be  applicable.  In 
P'ltts  V.  Smith,  108  Ga.  37,  and  Self  ret  v.  Sheppard,  11 1  Ga.  814, 
the  petitions  were  held  bad  for  duplicity,  for  the  reason  that  one 
count  dealt  apparently  v.ath  tv/o  separate  and  distinct  catises  of  ac- 
tion. See,  in  this  connection,  Orr  v.  Cooledge,  117  Ga.  206.  The 
first  and  third  counts  set  forth  a  cause  of  action,  and  there  was  no 
error  in  overruling  the  demurrer  to  these  counts.  .See  Mannon  v. 
Ry.  Co.  (W.  Va.)r49  S.  E.  450. 
Judgment  affirmed.-® 


HITCHCOCK  I'.  MUNGER. 

Supreme  Court  of  New  Hampshire,  1844. 

IS  N.  H.  97. 

Debt,  qui  tam,  under  the  statute  against  usury. 

The  first  count  alleged  that  on  the  26th  day  of  February,  1839, 
one  Samuel  Richardson  made  his  promissory  note  to  the  defendant, 
for  the  sum  of  three  hundred  dollars,  upon  which  note  there  were 
three  indorsements,  the  dates  of  which  were  specified  in  the  count, 
and  that  afterwards,  on  the  8th  day  of  April,  1841,  Richardson  and 
the  defendant  niade  a  corrupt  agreement,  by  virtue  of  w^hich  Rich- 
ardson paid  the  defendant  the  sum  of  fifteen  dollars,  for  forbear- 


-"Pomeroy's  Civil  Remedies  (4th  ed.),  §  467.  Under  the  codes  it  is  gen- 
erally held  that  where  a  plaintiff  has  two  or  more  grounds  upon  which  he 
may  have  a  single  cause  of  action,  and  there  is  some  uncertainty  as  to  whicli 
he  would  be  able  to  establish  at  the  trial,  he  may  set  forth  his  claim  in  dif- 
ferent counts  so  as  to  include  each  and  every  ground  he  may  have  for  re- 
coverv.  Whitney  v.  Raikvav  Co.,  27  Wis.  327  (1870)  ;  Pearson  v.  Milwaukee 
&  St'.  P.  R.  Co.,  45  Iowa  497  (1877)  ;  Wilson  v.  Smith,  61  Cal.  209  (1882)  ; 
Oherndorfer  v.  Mayer,  30  Utah  325  (1906).  Compare:  Ferguson  v.  Gilheri. 
16  Ohio  St.  88  (1865)  ;  Penn  M.  L.  T.  Co.  v.  Conoughy,  54  Nebr.  123  (1898)  ; 
Craft  R.  M.  Co.  v.  Onimnpiac  B.  Co.,  63  Conn.  551   (1893). 

But  where  the  complaint  sets  out  two  or  more  distinct  causes  of  action, 
the  statement  of  the  facts  constituting  each  cause  must  be  separate  and  num- 
bered.   N.  Y.  Code  of  Civ.  Pro.,  §  483;  Pollers  v.  Shcrin,  89  App.  Div.   (N. 


^iS  ACTUINS 

aiicc  and  jjivinjj  day  of  ]^aynKMit  of  tlu-  sum  i\uc  on  the  note,  over 
and  above  the  rate  of  six  per  oenl..  ci)iUrary  to  the  form  of  the 
statute,  etc..  1>\  reason  whereof  the  defendant  forfeited  the  sum  of 
forty-tive  dolUirs.  being  three  times  the  amount  of  the  usury ;  one- 
half  to  the  use  of  the  county,  and  one-half  to  the  use  of  the  plaintiff. 

The  second  count  alley;ed  that  on  the  said  26th  day  of  February, 
1839,  said  Kicliardson  t^ave  his  other  ])romissory  note  to  the  defend- 
ant, of  like  date  and  amount,  and  i)ayal)le  in  the  same  manner,  at 
the  rate  before  mentioned,  upon  which  note  were  payments  made  by 
the  said  Richardson  similar  to  those  ui)on  the  note  first  described. 
The  corrupt  agreement,  etc.,  was  then  stated,  as  in  the  first  count. 

After  verdict  for  the  plaintiff  the  defendant  moved  in  arrest  of 
iudgment,  on  account  of  the  insuHicicncy  of  the  second  count  in  the 
declaration.-"' 

CiiLCiTRiST,  j.:  Where  there  are  several  counts  in  a  declaration, 
whether  the  subjects  of  them  be  really  distinct,  or  identical,  they 
must  always  purport  to  be  founded  on  distinct  causes  of  action,  and 
not  to  refer  to  the  same  matter.  Stephen  on  Pleading  (2d  ed.),  318, 
319.  This  is  rendered  necessary  by  the  rule  against  duplicity,  the 
object  of  which  is  to  ensure  the  production  of  a  single  issue  upon 
the  same  subject-matter  in  dispute,  i  Ch.  PI.  259.  This  rule,  though 
evaded  as  to  the  declaration,  by  the  use  of  several  counts,  is  not  per- 
mitted to  be  directly  violated.  Where  there  are  several  counts,  they 
are  for  all  ])urposes  as  distinct  as  if  they  were  in  different  declara- 
tions, and  they  must  severally  contain  all  necessary  allegations.  But 
a  party  has  a  common  law  right  to  introduce  several  counts  into  his 
declaration,  in  fact  for  the  same  subject-matter  of  complaint,  and 
varying  from  the  first  count  only  in  statement,  description,  or  cir- 
cumstances.   I  Ch.  PI.  451.''^ 

In  Barnes  v.  May,  Cro.  Elis.  240,  a  demand  in  assumpsit  for 
wool  sold,  was  alleged  to  have  been  made  "at  such  a  day  and  place." 
The  second  count  contained  an  averment,  licet  similiter  requisitus, 


Y.)  37  (1903);  Paul  V.  l-'ord,  117  App.  Div.  (N.  Y.)  151  (1907);  ^'^"'<-'  v. 
Smith,  73  Kans.  174  (1906);  Yazoo  &  M.  V.  R.  Co.  v.  Wallace,  90  Miss. 
609  (1907)  ;  Casey  v.  St.  Louis  Transit  Co.,  205  Mo.  721  (1907)- 

Where  a  complaint  shows  double  statements  of  the  same  cause  of  action 
or  different  grounds  of  recover>-  for  the  same  right  in  one  count  the  plaintiff 
has,  in  some  cases,  been  required  to  elect  upon  which  ground  he  will  proceed. 
Harvey  v.  Southern  Pacific  Co.,  46  Ore.  505  (1905);  McHugh  v.  St.  Louis 
Transit  Co.,  190  Mo.  85  (1905). 

-'  The  statement  of  facts  is  abridged  and  the  arguments  of  counsel  and 
part  of  the  opinion  are  omitted. 

••aW'hen  separate  counts  are  used  either  in  a  common-law  declaration  or  a 
code  complaint,  each  is  a  complete  cause  of  action,  as  distinct  from  the  others 
as  if  it  stood  alone.  Leabo  v.  Dctrick,  18  Ind.  414  (1862)  ;  Simmons  v.  Fair- 
child,  42  Barb.  (N.  Y.)  404  (1854)  ;  Clark  v.  VVhittakcr  Iron  Co.,  9  Mo.  App. 
446  (1881)  ;  Bailey  v.  Mosher,  63  Fed.  488  (1894)  ;  McLellan  v.  Assiniboia,  5 
Manitoba  127  (1888)  ;  Hopkins  v.  Contra  C.  Co.,  106  Cal.  366  (1895)  ;  Cooper 
V.  Portncr  B.  Co.,  112  Ga.  894  (1900)  ;  Gilmore  v.  Christ  Hospital,  68  N.  J.  L. 
47  (1902).  Matters  of  inducement  and  not  of  the  gravamen  of  the  action 
stated  in  the  first  count  of  the  complaint,  need  not  and  should  not  be  re- 
peated, but  merely  referred  to  in  the  subseciucnt  counts.  Ahendroth  v.  Board- 
ley,  2-  Wis.  555  C1871)  ;  Aull  Savings  Bank  v.  Lexington,  74  Mo.  404  (1881). 


HITCHCOCK  t'.   MUNGER  319 

without  alleging  day  and  place,  and  it  was  adjudged  good.  In  as- 
sumpsit for  the  defendant's  board  for  120  weeks,  the  count  alleged 
the  price  to  be  7s.  per  week.  The  second  count  was  upon  quantuin 
meruit;  and  after  verdict  for  the  plaintiff,  it  was  moved  in  arrest  of 
the  judgment,  because  the  weeks  in  the  quantuin  meruit  were  not 
laid  to  be  alia  than  those  in  the  special  promise,  sed  non  allocatur; 
for  they  do  not  appear  necessarily  to  be  the  same,  and  without  neces- 
sity the  court  will  not  intend  them  so.  Bac.  Abr.,  Pleas  and  Plead- 
ings, B,  I.  In  Tindall  v.  Moore,  2  Wis.  114,  the  action  was  slander 
upon  several  sets  of  words  spoken  by  the  defendant  of  tlie  plaintiff. 
The  first  set  charged  the  plaintiff  with  setting  a  certain  house  on 
fire.  In  the  fifth  set  he  said  that  the  plaintiff  "set  the  house  on  fire," 
(meaning  the  same  house).  After  verdict  for  the  plaintiff,  it  was 
moved  in  arrest,  that  the  latter  set  of  words  were  not  actionable,  and 
the  innuendo  could  not  relate  to  the  house  mentioned  in  the  first  set 
of  words.  But  it  was  held  that  though  the  latter  set  of  words 
were  not  in  themselves  actionable,  they  should  have  relation  to  the 
former  set.  In  Phillips  v.  Fielding,  2  H.  Bl.  123,  which  was  assump- 
sit for  the  nonperformance  of  a  special  agreement,  the  first  count 
set  forth  certain  conditions  of  sale,  and  it  was  held  that  the  other 
counts  might  have  referred  generally  to  those  conditions  without  re- 
peating them.  Gould,  J.,  said  that  he  remembered  an  indictment  for 
forgery,  in  which  there  were  three  counts  for  the  forgery,  and  three 
for  the  utterance.  In  the  first  count,  the  prisoner  w^as  particularly 
described,  and  the  grand  jury  having  rejected  the  three  first  counts, 
an  objection  was  raised  that  the  remaining  counts  described  him  as 
"the  said  A  B,"  by  reference  to  the  first;  but  all  the  judges  held  that 
the  description  was  good,  and  that  the  latter  counts  might  refer  to 
the  former.  In  Stiles  v.  Nokes,  7  East  493,  Mr.  Justice  Lawrence 
says  that  a  general  reference  to  former  parts  of  the  record  may  be 
suflicient  in  pleading,  without  repeating  the  whole  of  such  parts, 
where  it  is  a  reference  to  something  certain.  In  a  second  count  upon 
a  deed  or  agreement,  it  is  proper  to  aver  that  a  certain  other  deed 
or  agreement  was  made  betv»/^een  the  parties  containing  the  like  terms 
and  stipulations  as  are  contained  in  the  deed  set  forth  in  the  first 
count.    I  Ch.  PI.  450,  note,  (h). 

The  second  count  in  the  declaration  before  us  refers  to  the  first 
count  with  as  much  particularity  as  the  law  and  authorities  require. 
We  are  of  opinion  that  it  is  sutffcient,  and  that  the  motion  in  arrest 
of  judgment  should  be  overruled. 

Judgment  on  the  verdict.-^ 

-''  Accord :  Dorr  v.  McKinnev,  91  Mass.  359  ( 1864)  ;  Haskell  v.  Haskell, 
54  Cal.  262  (1880)  ;  Brickcr  v.  Missouri  F.  K.  Co.,  83  Mo.  391  (1884)  ;  St. 
Louis  G.  L.  Co.  V.  St.  Louis,  86  Mo.  495  (1885)  ;  Treweek  v.  Hozvard,  105 
Cal.  434  (1895)  ;  Fellows  v.  Chipnian,  26  R.  I.  196  (1904)  ;  Wolf  v.  Smith,  149 
Ala.  457  (1906)  ;  Marietta  v.  Cleveland,  C.  C.  &■  St.  L.  R.  Co.,  52  Misc.  (N. 
Y.)  16  (1906)  ;  Realty  Co.  v.  Farm  Stock  &  H.  R.  Co.,  79  Minn.  465  (1900). 
Contra:  Fatter  v.  Flarncst,  45  Ind.  416  (1873).  And  a  reference  to  be 
deemed  sufficient  must  be  clear  and  explicit.  Opdycke  v.  Easton  &■  Amboy  R. 
R.  Co.,  68  N.  J.  L.  12  (1902)  ;  Taylor  v.  Nciu  Jersey  T.  G.  &  T.  Co.,  70  N.  J. 
L.  24  (1903). 


^^JO  ACTIONS 

BULL  V.  MATIIF.WS.  A 

Sl'PKKMF.  Coi'KT  OV    KuOlir.   ISI.ANO,    1897. 

20  R.  I.  100. 

Trespass  on  the  case  for  tro\er  and  con\crsion,  joining  counts 
in  assumpsit.  T-Teard  on  defendant's  motion  in  arrest  of  judgment. 
Tii-i-ixciiAST,  J.:  This  is  a  motion  in  arrest  of  judgment  on 
the  ground  of  a  misjoinder  of  causes  of  action.  The  action  is  tres- 
pass on  the  case  for  trover  and  conversion,  and  the  declaration  con- 
tains a  count  in  trover  and  conversion,  and  also  the  ordinary  counts 
in  assumpsit.  At  the  trial  of  the  case  in  the  chstrict  court  a  decision 
was  rendered  in  favor  of  the  plaintiff  for  $19.10  and  costs;  but  there 
is  nothing  in  tlie  record  to  show  whether  the  judgment  was  based 
on  the  count  in  trover  and  conversion,  or  on  those  in  assumpsit.  No 
plea  was  fded  in  the  case,  but  as  the  defendant  entered  an  appearance 
the  general  issue  is  deemed  to  be  filed.  Gen.  Lav/s  R.  I.,  ch.  237, 
sec.  3.  But  whether,  in  this  case,  the  general  issue  as  to  the  count 
in  trover,  which  would  be  not  guilty,  or  as  to  the  counts  in  assump- 
sit, v.hich  would  be  non  assumpsit,  is  in,  we  have  no  means  of  deter- 
mining. Within  five  days  after  the  rendition  of  said  decision  the 
defendant  tiled  his  motion  in  arrest  of  judgment  in  the  district  court, 
whereupon  the  case  was  certified  to  this  court. 

Itis  a  familiarjule  of  common-law  pleading  that  counts.sound- 
ing "nTtorf "can  not  i)roperl}  \k-  joined  wilh  counts  sounding  ia,con- 
tract,  and  also  that  such  misjoinder  is  fatal,  not  only  on  deuiurrer, 
luit'also  on^moTionTn  arrest  of  judgment.  Mncyc.  PI.  &  Pr.,  vol.  2, 
l5rSo371uTd''cases'"aIecT;  HasTieU  \.  IBowen,  44  Vt.  579.  The  effect 
of  such  misjoinder  is  clearly  expressed  in  Chit.  PI.  9  Am.  ed.  206, 
as  follows:  "The  consequences  of  a  misjoinder  are  more  important 
than  the  circumstances  of  a  particular  count  being  defective;  for  in 
case  of  a  misjoinder,  however  perfect  the  counts  may  respectively 
be  in  themselves,  the  declaration  will  be  bad  on  demurrer  or  in  arrest 
of  judgment,  or  upon  error."  See  also  Gould's  PI.,  ch.  4,  sec.  87, 
and  cases  cited. 

The  ordinary  test  for  determining  whether  different  causes  of 
action  may  be  joined  is  to  inquire  whether  the  same  plea  may  be 
pleaded  and  the  same  judgment  given  on  all  the  counts  of  the  decla- 
ration; and  unless  this  question  can  be  answered  in  the  affirmative 
the  counts  can  not  be  joined.  See  Drury  v.  Merrill,  20  R.  I.  2.  See 
also  Court  of  Probate  v.  Sprague,  3  R.  l.  205. 

Applying  this  test  to  the  case  at  bar,  it  will  at  once  be  seen  that 
there  is  a  fatal  misjoinder.  If  the  pleader  in  this  case  had  simply 
omitted  to  strike  out  the  money  counts  which  are  printed  in  the  writ, 
\ perhaps  v.-e  might  disregard  them;  but  as  he  has  filled  them  out  in 
the  ordinary  way  where  the  case  is  assumpsit,  we  feel  bound  to  pre- 
sume that  he  intended  to  rely  thereon,  as  well  as  on  the  count  in 
trover. 

It  is  true  that,  since  the  case  was  certified  to  this  court,  the  plain- 
tiff's counsel  has  filed  an  affidavit  setting  forth  that  by  reason  of 
mistake  and  oversight  he  neglected  to  strike  out  the  money  counts, 


BULL  V.  MATHEWS  321 

and  also  that  at  the  trial  in  the  district  court  the  evidence  introduced 
was  confined  to  tlie  count  in  trover,  which  was  the  only  count  relied 
on.  But  as  a  motion  in  arrest  of  judgment  raises  only  those  objec- 
tions which  are  apparent  upon  the  record ;  {State  v.  Paul,  5  R.  I.  189 ; 
Black  on  Judgments,  vol.  i,  sec.  96-8;)  and  as  the  affidavit  forms  no 
part  of  the  record,  we  are  not  at  liberty  to  consider  it. 
Judgment  arrested.-^ 

New  York  Code  of  Civil  Procedure,  Sec.  484. 
The  plaintiff  may  unite  in  the  same  complaint,  two  or  more 
causes  of  action,  whether  they  are  such  as  were  formerly  denom- 
inated legal  or  equitable,  or  both,  where  they  are  brought  to  recover 
as  follows: 

1.  Upon  contract,  express  or  implied. 

2.  For  personal  injuries,  except  libel,  slander,  criminal  conver- 
sation or  seduction. 

3.  For  libel  or  slander. 

4.  For  injuries  to  real  property. 

5.  Real  property,  in  ejectment,  with  or  without  damages  for 
withholding  thereof.    (See  sec.  1496.) 

6.  For  injuries  to  personal  property. 

7.  Chattels,  with  or  without  damages  for  the  taking  or  detention 
thereof.    (See  sec.  1689.) 

8.  Upon  claims  against  a  trustee,  by  virtue  of  a  contract,  or  by 
operation  of  law. 

9.  Upon  claims  arising  out  of  the  same  transaction,  or  transac- 
tions connected  with  the  same  subject  of  action,  and  not  included 
within  one  of  the  foregoing  subdivisions  of  this  section.  (See  sec. 
1815.) 

10.  For  penalties  incurred  under  the  forest,  fish  and  game  law. 

11.  For  penalties  incurred  under  the  agricultural  law. 

12.  For  penalties  incurred  under  the  public  health  law. 

But  it  must  appear,  upon  the  face  of  the  complaint,  that  all  the 
causes  of  action,  so  united,  belong  to  one  of  the  foregoing  subdi- 
visions of  this  section ;  that  they  are  consistent  with  each  other ;  and, 
except  as  otherwise  prescribed  by  law,  that  they  affect  all  the  par- 
lies to  the  action ;  and  It  must  appear  upon  the  face  of  the  complaint, 
that  they  do  not  require  different  places  of  trial.^" 

^*At  the  common  law,  a  cause  of  action  arising  ex  contractu  can  not  be 
joined  with  a  cause  of  action  arising  ex  delicto.  Brown  v.  Dixon,  i  Term 
Rep.  274  (1786)  ;  Corbctt  v.  Packington,  6  Barn.  &  C.  268  (1827)  ;  Howe  v. 
Cook,  21  Wend.  (N.  Y.)  29  (1839)  ;  McNair  v.  Compton,  35  Pa.  23  (1859)  ; 
McDermott  v.  Morris  Canal  &  B.  Co~,  2,1i  1^.  J.  L.  53  (187^)  ;  N.  &  IV.  R. 
Co.  V.  Wysor,  82  Va.  250  (1886)  ;  Wilkins  v.  Standard  Oil  Co.,  71  N.  J.  L. 
399  (1904).  .  .  .    , 

Where  the  plaintiff  waives  the  tort,  there  is  no  misjoinder  of  counts 
where  one  count  alleges  failure  of  consideration  in  a  contract  and  the  other 
alleges  a  right  to  rescind  the  contract  by  reason  of  false  representations  which 
induced  it.  Whitney  v.  Haskell,  216  Pa.  622  (igoy).  Accord:  Logan  w.  Wallis, 
76  N.  Car.  416  (1876)  ;  Campbell  v.  Wright,  21  How.  Pr.  (N.  Y.)  9  (i860). 

'°  See  Pomeroy's  Code  Remedies  (4th  ed.),  §  437  et  seq. ;  California  Code 
Civil  Procedure,  §  427. 

21 — Civ.  Proc. 


ACTIONS 


GEORGE  DERBY  WHITE  z'.  IMPRO\^ED  TROPERTY 
I-IOLDING  COMPANY. 

Supreme  Court  of  New  York,  Appellate  Division,  1910. 
140  Api>.  Div.  (N.  y.)  529. 

Appeal  by  the  defendant,  the  Improved  Property  Holding  Com- 
pany of  New  York,  a  corporation,  from  an  interlocutory  judgment 
of  the  Supreme  Court  in  favor  of  the  plaintiff,  entered  in  the  office 
of  the  clerk  of  the  county  of  New  York  on  the  8th  day  of  June, 
1910,  upon  the  decision  of  the  court,  rendered  after  a  trial  at  the 
New  York  special  term,  overruling  the  defendant's  demurrer  to  the 
amended  complaint. 

Laughlin,  J. :  The  first  ground  of  demurrer  is  that  an  action 
for  breach  of  contract  is  joined  with  an  action  for  the  conversion  of 
personal  property,  and  that  such  causes  of  action  are  not  consistent 
with  each  otlier,  and  do  not  fall  within  any  of  the  subdivisions  of 
section  484  of  the  Code  of  Civil  Procedure. 

I  am  of  tlie  opinion  that  the  demurrer  was  well  taken.  It  is  evi- 
dent that  tlie  plaintiff  has  attempted  to  set  forth  two  causes  of  ac- 
tion separately  numbered  and  stated  to  recover  the  same  amount  of 
damages  on  two  different  theories ;  but  it  does  not  necessarily  follow 
that  the  causes  of  action  may  be  joined  in  one  complaint.  In  the 
first  cause  of  action  it  is  alleged  that  defendant  leased  to  the  plaintiff 
certain  rooms  in  the  320-322  Fifth  avenue  building;  and  that  between 
the  5th  day  of  Alarch  and  the  ist  day  of  April,  1909,  the  defendant 
"unlawfully  and  wrongfully  took  and  converted"  certain  personal 
property  of  the  plaintiff  lawfully  on  the  leasehold  premises  "and 
disposed  of  the  same  to  its  own  use" ;  whereby  the  plaintiff  sustained 
damages  in  the  sum  of  $3,843.  In  the  second  cause  of  action  it  is 
alleged  that  it  was  provided  in  the  lease  that  the  defendant  should 
cause  the  premises  to  be  cleaned  and  cared  for  and  should  be  ^re- 
sponsible for  the  loss  of  property  "in  or  from  said  leased  premises 
caused  by  the  gross  neglij^ence"  of  the  janitor  or  his  assistants;  that 
the  premises  were  part  of  an  office  building  containing  freight  and 
passenger  elevators  which  were  in  charge  of  the  servants  of  the  de- 
fendant who  had  access  to  the  premises;  that  the  defendant,  not 
regarding  its  duty,  "so  negligently  conducted  itself  in  caring  for  said 
premises  and  property  that  through  the  gross  negligence  and  mis- 
conduct of  the  defendant,  its  servants  and  agents,  and  without 
negligence  on  the  part  of  the  plaintiff,  said  property  was  removed 
from  said  premises  in  the  absence  of  the  plaintiff,  his  servants  and 
agents,  by  some  person  or  persons  unknown  to  the  plaintiff,  and 
thereby  said  property  was  wholly  lost  to  the  plaintiff,  to  his  damage," 
in  said  sum  of  $3,843. 

In  an  action  for  conversion  an  order  of  arrest  might  be  obtained 
and  a  body  execution  issued  on  the  judgment.  (Code  Civ.  Proc. 
sees.  549,  556,  557.)  But  no  such  relief  can  be  had  in  an  action  for 
breach  of  contract  by  which  personal  property  has  been  lost  as  al- 


WHITE  V.  HOLDING  CO.  323 

leged  in  this  complaint.  Although  this  may  not  be  a  controlling  con- 
sideration it  is  important  in  determining  the  legislative  intent  in 
construing  the  provisions  of  section  484  of  the  Code  of  Civil  Pro- 
cedure which  specifies  the  causes  of  action  that  may  be  joined  in 
the  same  complaint.  It  is  not  contended  that  authority  for  joining 
these  two  causes  of  action  is  found  in  any  of  the  subdivisions  of 
section  484  excepting  the  9th.  That  subdivision  in  connection  with 
the  first  sentence  of  the  section  provides  that  the  plaintiff  may  unite 
in  the  same  complaint  two  or  more  causes  of  action  brought  to  re- 
cover, "upon  claims  arising  out  of  the  same  transaction,  or  trans- 
actions connected  with  the  same  subject  of  action,  and  not  included 
within  one  of  the  foregoing  subdivisions  of  this  section."  By  the  last 
paragraph  of  that  section  it  is  further  provided  that  it  must  appear 
upon  the  face  of  the  complaint  that  all  tlie  causes  of  action,  "so 
united,  belong  to  one  of  the  foregoing  subdivisions  of  this  section," 
and  "that  they  are  consistent  with  each  other." 

It  is  quite  clear,  I  think,  that  the  cause  of  action  for  the  wrong- 
ful conversion  of  personal  property  by  the  defendant  is  not  consist- 
ent with  a  cause  of  action  for  the  breach  of  an  agreement  on  its 
part  to  safeguard  the  property  against  loss,  whereby  through  its 
neglect  to  perfrom  its  contract  duty  the  property  was  removed  and 
appropriated  by  a  third  party.  If  the  property  was  converted  by  the 
defendant  it  surely  was  not  taken  by  a  third  party  through  its  neg- 
lect to  care  for  it.  Conversion  implies  a  wrongful  and  wilful  act 
on  the  part  of  the  defendant. 

Moreover,  I  am  of  the  opinion  that  the  claim  for  conversion 
and  the  claim  for  breach  of  contract  do  not  arise  out  of  the  same 
transaction  or  transactions  connected  with  the  same  subject  of  action 
within  the  scope  and  meaning  of  subdivision  9  of  section  484  of  the 
Code  of  Civil  Procedure.  The  "transaction"  upon  which  the  cause 
of  action  for  conversion  is  based  was  the  conversion.  (See  People 
V.  Dennison,  84  N.  Y.  272 ;  Storey  v.  Richardson,  91  App.  DIv.  381  ; 
affd.,  181  N.  Y.  584;  Van  v.  Madden,  132  App.  Div.  535';  Deagan  v. 
Weeks,  67  App.  Div.  410,  and  Heigle  v.  Willis,  50  Hun  588.)  On 
the  other  hand  the  subject  of  the  action  for  the  breach  of  contract 
and  the  transaction  upon  which  it  was  based  are  the  contract  and 
the  facts  constituting  the  breach.  (See  Lehmair  v.  Griswold,  40 
N.  Y.  Super.  Ct.  100;  Carpenter  v.  Manhattan  Life  Ins.  Co.,  93 
N.  Y.  552,  and  Rothschild  v.  Whitman,  132  N.  Y.  472.) 

It  follovv^s,  therefore,  I  think,  that  the  Interlocutory  judgment 
should  be  reversed,  with  costs,  and  demurrer  sustained,  with  costs, 
with  leave  to  plaintiff  to  serve  an  amended  complaint  upon  payment 
of  costs  In  this  court  and  in  the  court  below. ^^ 

Ingraham,  P.  J.,  Scott,  Miller  and  Dowling,  JJ.,  concurred. 


"Accord  :  Nichols  v.  Drew,  94  N.  Y.  22  (1883)  ;  Southworth  Co.  v.  Lamb, 
82  Mo.  242  (1884)  ;  Henderson  v.  Boyd,  85  Tenn.  21,  i  S.  W._498  (1886); 
Stark  V.  Wellman,  96  Cal.  400,  31  Pac.  259  (1892)  ;  Commercial  Union  A. 
Co.  V.  Shoemaker,  63  Nebr.  173  (1901);  Kriiger  V.  St.  Joe  Lmnbcrinn  Co., 
II  Idaho  504,  83  Pac.  695  (1905)  ;  Drexel  V.  Hollander,  112  App.  Div.  (N.  Y.) 
25  (1906);  Montgomery  v.  Alexander  Lumber  Co.,  140  Ga.  51  (1913); 
Pridemore  v.  Fife,   178  Mo.  App.  332    (1914).    Compare  Devin  v.    Walsh, 


3^4  ACTIONS 

MART1:R  i:   1I1£NRV  SANCHEZ  COM T ANY. 

Supreme  Court  of  New  Jersey,  1908. 

77  N.  J.  L.  95  " 

Trencitard,  J.:  The  plaintiff  in  this  action  sues  the  Henry 
Sanchez  Company,  Henry  Sanchez  and  Gumersindo  Sanchez. 

The  action  is  brought  upon  a  promissory  note  for  $1,000,  made 
by  one  of  the  defcnthmts,  the  Henry  Sanchez  Company,  a  corpora- 
tion of  this  state,  to  the  plaintiff. 

The  first  count  of  tlie  declaration  charges  the  company  alone  with 
liability. 

The  second  count  avers  that  the  company  was  dissolved  under 
the  corporation  act  of  this  state ;  that  the  two  individual  defendants 
were  directors  of  tlie  company,  and  became  trustees  for  the  cred- 
itors under  the  statute ;  that  they  have  corporate  assets  of  the  com- 
pany in  their  hands  sufficient  to  pay  all  outstanding  liabilities  of  tlie 
company.  On  these  facts  the  second  count  seeks  to  recover  against 
these  two  directors  alone. 

The  declaration  also  contains  common  counts,  under  which  tlie 
plaintiff  seeks  to  hold  all  three  defendants. 

The  defendant  Gumersindo  Sanchez  demurs  upon  the  ground, 
among  others,  that  the  three  counts  or  causes  of  action  are  improp- 
erly joined. 

We  think  the  demurrer  should  be  sustained. 

The  plaintiff  can  not,  in  one  action,  assert  an  independent  lia- 
bility of  the  corporation  In  one  count,  an  independent  liability  of 
the  individual  directors  of  the  corporation  in  anotlier,  and  the  lia- 
bility of  both  the  corporation  and  the  individual  directors  in  a  third 
count.  Dunn  v.  Pennsylvania  Railroad  Co.,  38  Vroom  377. 

Such  misjoinder  of  counts  affords  cause  for  a  general  demurrer 
to  the  declaration,  i  Chitt.  PI.  202,  205,  665 ;  2  Saund.  117b;  Drum- 
mond  V.  Dorant,  4  T.  R.  360;  Dunn  v.  Pennsylvania  Railroad  Co., 
supra. 

The  demurrer  will  be  sustained.^^ 


108  Iowa  428,  79  N.  W.  133  (1899)  ;  Maisenbackcr  v.  Society  Concordia,  71 
Conn.  369,  42  Atl.  67,  71  Am.  St.  213  (1899)  ;  Minton  v.  Piano  Co.,  33  App. 
D.  C.  137  (1911)  ;  Hooper  v.  Herring,  9  Ala.  App.  292  (1914)  ;  Birmingham 
R.  L.  &  P.  Co.  v.  Jackson,  9  Ala.  App.  588  (1914).  See  also  Bowman  v. 
IVoIilke,  166  Cal.  121  (1913). 

"Part  of  the  opinion  is  omitted. 

**Strohecker  v.  Grant,  16  S.  &  R.  (Pa.)  237  (1827)  ;  Sehring  v.  Keith, 
2  Bailey's  S.  Cai*.  l92~(T83f)  ;  Preston  v.  Davis,  8  Ark.  167  (1847)  ;  Burns  v. 
IViUiams,  88  N.  Car.  159  (1883)  ;  Sleeper  v.  World's  F.  B.  H.  Co.,  166  111.  57 
(1897);  Wedgewood  Co.  v.  Parr,  112  Iowa  514  (1900);  Gihnore  v.  Christ 
Hospital,  68  N.  J.  L.  47  (1902)  ;  Cole  v.  Lippit,  25  R.  I.  104  (1903)  ;  Weil  v. 
Town<;e«^   ?5  Pa.  Super.  Ct.  638  (1904).  _   _         _  ~ 

A  demand  due  plaintiff  as  surviving  partner  may  be  joined  in  the  same 
action  with  a  demand  due  him  in  his  own  right.  Stafford  v.  Gold,  9  Pick. 
(Mass.)  533  (1830)  ;  Adams  v.  Hackett,  27  N.  H.  280  (1853)  ;  Davis  v. 
Church,  1  W.  &  S.  240  (1841),  compare  Mosgrove  v.   Golden.  loi   Pa.  605 


COPLESTON  V.  PIPER  325 

COPLESTON  V.  PIPER.  ^^ 

Court  of  Co:mimon  Pleas,  1697. 

1  Lord  Raymond  191. 

Trespass  quare  clausum  necnon  mesuagium  et  tenementum 
f regit  et  quandam  parcellam  hordei  asportavit,  etc.  Upon  not  guilty 
pleaded,  verdict  for  the  plaintiff,  and  entire  damages  given.  And 
last  Easter  term  Gould  King's  serjeant  moved  in  arrest  of  judg- 
ment; I.  That  the  word  tenementum  is  too  general  and  uncertain, 
for  it  signifies  anything  that  can  be  holden.  But  the  Powells  justices 
said,  that  ejectment  de  uno  tenemento  is  ill  for  the  uncertainty,  be- 
cause in  that  action  the  tiling  itself  must  be  recovered,  and  tene- 
mentum may  signify  a  thing  for  which  ejectment  will  not  lie,  as  an 
advowson,  etc.,  but  in  trespass  where  damages  only  are  recoverable, 
the  word  will  serve  well  enough.  But  in  this  case,  it  being  after  ver- 
dict, they  will  intend  that  it  signifies  the  same  with  mesuagium,  and 
so  si:rplusage,  and  no  damages  given  for  it.  To  which  Treby  chief 
justice  agreed.  2.  Gould  argued,  that  the  declaration  was  too  uncer- 
tain, for  the  jury  could  not  know,  for  what  quantity  of  barley  the 
plaintiff  declared,  for  the  word  parcel  is  very  uncertain.  And  there- 
fore I  Cro.  865  b.  trover  for  parcella  piscium  Anglice  ling,  judg- 
ment was  arrested  for  the  uncertainty.  5  Co.  34.  Playter's  case. 
Besides  that,  it  does  not  appear,  whether  this  parcel  was  severed 
from  the  grovtnd,  or  growing  upon  it ;  in  which  cases  the  defendant 
must  have  different  pleas,  for  in  the  first  case  he  might  justify  by 
distress,  in  the  last  he  must  make  title  to  the  land.  And  therefore 
the  plaintiff  ought  to  have  declared  for  so  many  loads  of  barley, 
etc.  But  as  to  this  the  court  said,  that  after  verdict  they  will  intend 
that  it  was  severed  from  tlie  land.  But  as  to  the  other  exception  they 
said,  that  this  differs  from  Playter's  case;  for  in  that  case  there 
was  neither  quantity  nor  quality,  but  here  there  is  quality.  And 
Treby  chief  justice  said,  that  in  the  term  before,  trespass  pro  tribus 
struibus  foeni,  Anglice  ricks  of  hay,  was  adjudged  good  after  ver- 
dict. And  Powell  junior  justice  said,  that  trover  pro  una  parcella 
fill  had  been  adjudged  good  in  the  King's  bench  ;  and  yet  there  seems 
that  there  was  uncertainty  in  the  quantity  and  quality  also,  for  there 
are  several  sorts  of  thread.  See  i  Mod.  295 ;  i  Ventr.  105.  So  that 
they  seemed  to  be  of  opinion  that  the  principal  case  was  well  enough ; 


(1882)  ;  Richards  v.  Heather,  1  B.  &  Aid.  29  (1817).  So,  a  demand  against 
one  as  a  surviving  partner  may  be  joined  with  a  demand  against  him  as  an 
individual.  Golding  v.  Vaiighan,  2  Chitty  Rep.  436  (1782),  S.  Car.  18  E.  C. 
L.  R.  724.  But  a  count  against  a  firm  on  a  joint  demand  can  not  be  joined 
with  a  count  against  one  of  tlie  partners  on  an  individual  demand.  Lynch  v. 
Thompson,  61  Miss.  354  C1883)  ;  United  States  v.  McCoy,  54  Fed.  107  (1893). 
In  England,  under  the  rules  of  the  Supreme  Court,  order  XVIII,  rule  I, 
the  plaintiff  may  unite  several  causes  of  action  in  one  action  except  in  actions 
for  the  recovery  of  land  and  actions  by  a  trustee  in  bankruptcy,  but  if  it 
appear  to  the  court  that  any  such  causes  of  action  can  not  be  conveniently 
tried  together,  separate  trials  may  be  ordered.  See  also  New  Jersey  Practice 
Act  of  1912,  §  14..  . 


3-6  ACTIONS 

hut  upon  the  importunity  of  the  defendant's  counsel  it  \vas  stayed  till 
tlie  jilaintiff  should  move  for  his  judg^nent.  And  now  this  term 
Darnall  serjeant  moved  for  judgment;  and  said  that  it  was  good, 
after  verdict  at  least.  And  he  cited  Style  199,  75,  224,  353;  2  Cro. 
664;  Pasch.  1694,  B.  R.  EtJierick  v.  Calendar.  Trover  de  tribus 
peciis  \ini  branditati,  Anglice  brandy  wine;  the  defendant  demurred 
generally ;  and  exception  there  was  taken,  that  pecia  was  a  very  un- 
certain word;  but  it  was  adjudged  well  enough  after  verdict.  And 
in  the  case  Holt  cited,  a  case  between  Brasey  and  Roe,  trover  pro 
quatuor  peciis  tracti  grafetti,  Anglice  drawn  grasett,  which  was  ad- 
judged good  after  demurrer.  But  Treby  chief  justice  said,  that  a 
piece  of  stuff  was  a  quantity  known  to  consist  of  so  many  yards; 
but  a  parcel  of  barley  is  no  quantity  known.  And  therefore  last 
IMichaelmas  term  in  a  case  between  Smith  and  Theobald,  trover  de 
quandum  parcella  culmi,  after  verdict  judgment  was  arrested,  etc. 
And  in  Trin.  22  Car. ;  2  B.  R. ;  Rot.  373  trover  de  quandam  parcella 
fili,  it  was  adjudged  ill  after  verdict.  And  therefore  he  thought, 
tliat  judgment  ought  to  be  arrested,  and  it  was  arrested,  nisi,  etc.^* 


'^  While  some  of  the  objections  on  the  ground  of  uncertainty  in  the  older 
cases  may  seem  fantastically  technical,  nevertheless,  in  modern  pleading,  "thej 
declaration  must  allege  all  the  circumstances  necessary  for  the  support  of  the 
action,  and  contain  a  full  regular  and  methodical  statement  of  the  injury^ 
which  the  plaintiff  has  sustained,  with  such  precision,  certainty  and  clearness  i 
that  the  defendant,  knowing  what  he  is  called  upon  to  answer,  may  be  able  toj 
plead  a  direct  and  imequivocal  plea;  and  that  the  jury  may  be  able  to  give 
a  complete  verdict  upon  the  issue,  and  the  court,  consistently  with  rules  of 
law,  may  give  a  ceraiin  and  distinct  judgment  upon  the  premises."  Per 
Chapman,  J.,  in  Read  v.  Smith,  83  Mass.  519  (1861)  ;  Lidirig  Coal  Co.  v.  Liid- 
Iioii,  69  Ohio  311  (1903).  See  also,  Cutler  v.  Southern,  1  Saund.  116  (1667)  ; 
Camphill  v.  St.  John,  i  Ld.  Raym.  20  (1694)  ;  Hart  fort  v.  Jones,  i  Ld.  Ra}Tn. 
588  (1700),  Salk.  654;  Martin  v.  Hendrickson,  2  Ld.  Raym.  1007  (1703); 
IVyat  v.  Essington,  2  Ld.  Raym.  637  (1725),  Str.  637;  Bertie  V.  Pickering,  4 
Burr.  2455  (1769);  King  v.  Pippet,  I  Term  Rep.  235  (1786);  J' Anson  v. 
Stuart,  I  Term  Rep.  (1786),  i  Sm.  L.  Ca.  30  and  notes;  Drewry  v.  Tzviss,  4 
Term  Rep.  558  (1792)  ;  Oystcad  v.  Shed,  12  I^Iass.  505  (1815)  ;  Phillips  v. 
Phillips,  L.  R.  4  Q.  B.  Div.  127  (1878)  ;  Gere  v.  Unger,  12.=;  Pa.  644  (1889)  ; 
Giroux  A.  Co.  v.  White,  21  Ore.  435  (1891),  w'here  the  complaint  is  given  in 
its  entirety,  not,  says  the  court,  "as  a  pattern  to  imitate,  but  as  an  exemple 
to  deter";  Che.<;tmit  St.  N.  Bk  v.  IlUis,  161  Pa.  241  (1894)  ;  Clark  v.  Lindsay. 
7  Pa.  Supef~Ct.  43  (189^)  ;  Ferguson  v^  Western  U.  T.  Co.,  64  N.  J.  L.  222 
(1899)  ;  Busrh  v.  CaUiqun^  14  Pa.  Super.  Ct.  578  ''1900)  ;  Logansport  v.  Kihm, 
159  Ind.  68  (1902)  ;  Davis  v.  Smith,  26  R.  L  129  (1904)  ;  Soule  v.  Weatherhy, 
59  Utah  306  (1911).  Under  the  codes  uncertainty  is  usually  taken  ad- 
vantage of  by  motion  to  make  more  certain.  Gould  on  pleading  (Will's  ed.) 
367  note;  IJale  v.  Omaha  N.  Bk.,  49  N.  Y.  626  (1S72)  ;  Lockwood  v.  Bridge 
Co.,  60  S.  Car.  492  (1900)  ;  unless  so  uncertain  that  the  elements  of  a  cause 
of  action  are  not  disclosed,  Phillips  v.  Sonora  C.  Co.,  90  App.  Div.  (N.  Y.) 
140  (1904)  ;  Chicago  &  E.  R.  Co.  v.  Lawrence,  169  Ind.  310  (1907).  At  com- 
mon law  indefiniteness  and  uncertainty  are,  ordinarily,  defects  of  form  and 
subject  to  special  demurrer,  unless  the  pleading  fails  to  disclose  a  cause  of 
action.  Race  v.  Ea.<;ton  &  A.  R.  Co.,  62  N.  J.  L.  536  C1898);  Emmons  v. 
Alvord,  177  Mass.  466  (1901)  ;  McDonald  v.  Smith,  139  Mich.  211  (1905)- 


NEVIL  V.  SOPER  327 

,  -        NEVIL  V.  SOPER. 

Court  of  King's  Bench,  1698. 

Salkeld  213. 

In  covenant  against  an  apprentice  the  plaintiff  assigned  for 
breach,  that  the  apprentice  before  the  time  of  his  apprenticeship 
expired,  and  durante  tempore  quo  servivit,  departed  from  his  mas- 
ter's service:  The  defendant  demurred,  and  had  judgment,  because 
the  declaration  was  repugnant,  for  it  should  have  been  durante  tem- 
pore quo  servire  debuit.  The  case  of  Lawly  v.  Arnold,^^  Hill  8  W,  3 
B.  R,,  was  not  unlike  this :  That  was  trespass  for  taking  and  carry- 
ing away  his  timber  and  brick,  super  terrain  snani  jacent.  ergo  con- 
fectionem  domiis  de  novo  aedificat.  And  the  court  held  this  Insen-  ' 
sible,  for  tliey  could  not  be  materials  toward  the  building  of  a  house'/ 
already  built.  Sed  Quaere,  if  that  was  not  surplusage?"^  ( 


j^  MACURDA  V.  LEWISTON  JOURNAL  CO. 
Supreme  Judicial  Court  of  Maine,  1908. 

104  Maine  554. 

Two  actions  on  the  case  brought  by  the  plaintiff  against  the 
defendant  company,  to  recover  damages  for  alleged  libels  published 
by  the  defendant  company,  "of  and  concerning  the  plaintiff."  The 
defendant  company  filed  a  general  demurrer  to  each  declaration. 
The  presiding  justice,  pro  forma,' overruled  the  demurrers,  and  the 
defendant  excepted. 


^^Lodie  V.  Arnold,  Salk.  458  (1696). 

'^Pleadings  must  not  be  repugnant.  Vigers  v.  Aldrich,  4  Burr.  2482 
(1769)  ;  Rowan  v.  Lee,  3  J.  J.  Marsh  (Ky.)  97  (1829)  ;  Lcavitt  v.  Coles,  2 
McLean  (U.  S.)  491  (1841);  Mix  v.  People,  92  111.  549  (1879);  Gulliver  v. 
Fowler,  64  Conn.  556  (1S94)  ;  Borland  v.  Prindlc,  144  Fed.  713  (1906); 
Anniston  E.  &  G.  Co.  v.  Rosen,  159  Ala.  195  (1909)  ;  Stanley  v.  Siunrel,  163 
S.  W.  697  (Tex.  1914).  Thus  a  declaration  that  alleges  the  plaintiff's  intes- 
tate was  intoxicated  and  unable  to  care  for  himself  and  which  likewise  avers 
fhat"he  was  in  the  exercise  of  due  care,  is  bad  for  repugnancy.  Keeshan  v. 
Elgin  A.  &  S.  T.  Co.,  132  III.  App.  416  (1907).  To  vitiate  a  pleading  on  the  ' 
ground  of  repugnancy,  the  conflicting  statements  must  be  irreconcilable,  as  ■ 
well  as  material.  Coddingtoh' v.  Wilkin,  Cro.  Jac.  Z77  (1615).  Compare 
TncTedbn  v.  Barges,  Shower  27  (1688)  ;  Nosworthy  v.  Wyldeman,  i  Mod.  42 
(1669)  ;  Palmer  v.  Stavely,  Salk.  24  (1701)  ;  Wyat  v.  Aland,  Salk.  324 
(1703)  ;  Hayman  v.  Rogers,  1  Strange  232  (1719)  ;  Sabine  v.  Johnson,  1  Bos. 
&  P.  60  (1797)  ;  Catzenholz  v.  Heller,  82  Wis.  30  (1892)  ;  Ross  v.  Charles- 
town  Co.,  42  S.  Car.  447  (1894)  ;  Peoples  Bank  v.  Geisthart,  55  Nebr.  232 
(1898)  ;  Town  of  Cameron  v.  Hicks,  63  W.  Va.  484  (1909)  ;  IVahle  v.  Great 
N.  R.  Co.,  41  Mont.  326  (1910).  "If  the  pleading  is  repugnant,  in  a  material 
point ;  it  is  ill  in  substance  or  on  general  demurrer ;  but  repugnancy  in  an 
immaterial  point  is  a  fault  in  form  only,  and  therefore  no  advantage  can  be 
taken  of  it,  except  by  special  demurrer."  Gould  on  Pleading  (Will's  ed.) 
313.   See  also,  Chitty  on  Pleading  (16  Amer.  ed.)  573. 


^w'S  ACTIONS 

King,  J-:  I^ach  action  is  lo  recover  damages  for  an  alleged  libel 
and  is  before  the  law  court  on  a  general  demurrer  to  the  declaration. 
In  the  first  action  the  publication  of  the  alleged  libelous  matter  is 
stated  in  this  form  : 

"Said  defendant  did  *  *  *  falsely  and  maliciously  compose, 
■print,  publish  and  circulate,  or  cause  to  be  composed,  printed,  pub- 
lished and  circulated  in  a  certain  public  newspaper  *  *  *  ^  certain 
scandalous  and  malicious  libel  of  and  concerning  the  plaintiff." 

In  tlie  otlier  action  the  publication  is  stated  In  this  form : 

"Said  defendant  did  *  *  *  falsely  and  maliciously  compose 
and  publish  or  cause  and  prepare  to  be  composed  and  published 
*  *  *  in  a  certain  newspaper  *  *  *  a  certain  scandalous  and 
malicious  libel  of  and  concerning  the  plaintiff." 

It  is  a  general  rule  of  pleading,  too  well  settled  to  need  the  cita- 
tion of  authorities,  that  the  declaration  must  allege  the  gravamen — 
the  grievance  complained  of  with  such  precision,  certainty  and 
defmiteness  that  the  defendant  may  know  what  to  answer  by  his 
pleading  and  proof. 

A  disjunctive  allegation  as  to  the  essence  of  the  cause  of  action 
is  as  pure  an  example  of  uncertainty  and  indefiniteness  in  pleading 
as  can  well  be  found,  for  it  completely  conceals  from  the  defendant 
the  ground  upon  which  a  recovery  is  claimed. 

Such  form  of  allegation  has  been  uniformly  regarded  as  fatally 
defective. 

'•  "A  pleading  is  bad  under  any  system  of  practice  when  it  states 
material  facts  in  the  alternative,  so  that  it  is  impossible  to  determine 
upon  which  of  several  equally  substantive  averments  the  pleader 
relies  for  the  maintenance  of  his  action  or  defense."  6  Encyc.  PI. 
&  Pr.,  page  268;  Chitty  on  PI.  i6th  Am.  ed.,  star  page  260;  Stephen 
on  PI.  340 ;  State  v.  Singer,  loi  Maine,  299. 

In  the  last  case  cited  this  court  recently  decided  that  such  form 
of  charging,  in  the  disjunctive,  in  an  indictment  for  libel,  violates 
the  rule  of  certainty  in  criminal  pleading  and  is  fatal  on  general 
demurrer.  It  is  there  said : 

"To  be  charged  wdth  printing  and  publishing  a  libel  is  one  thing 
and  to  defend  against  it,  evidence  of  one  kind  may  be  required, 
while  to  meet  the  charge  of  having  caused  a  libel  to  be  printed  and 
published  may  require  evidence  of  another  and  entirely  different 
character.   This  distinction  goes  to  the  essence  of  the  charge." 

Applying  the  same  rule  of  certainty  to  the  declaration  in  the 
cases  before  us,  with  like  discriminating  reasoning,  and  they  are 
found  defective  because  of  the  disjunctive  form  in  which  the  pvib- 
lication  is  alleged. 

But  it  is  suggested  by  plaintiff  that  such  effect  is  not  reached  by 
a  general  demurrer.  We  think  it  is.  It  is  not  a  defect  in  form,  but 
in  substance.    The  question  to  be  answered  by  the  declaration  is: 


MACURDA  V.  JOURNAL  CO.  329 

What  act  of  defendant  is  relied  upon?  The  answer  is  uncertain; 
either  that  he  did  an  act  complained  of,  or  caused  it  to  be  done. 
This  uncertainty  of  allegation  goes  to  the  very  essence  of  the  cause 
of  action  to  the  act  of  defendant  from  which  the  cause  of  action 
springs. 

If  from  the  declaration  tlie  cause  of  action  does  not  sufficiently 
appear  the  pleading  is  defective  in  matter  of  substance. 

Here  the  plaintiff  has  alleged  in  each  declaration  that  the  defend- 
ant did  either  one  or  the  other  of  two  substantive  acts,  but  he  has 
not  disclosed  upon  which  of  those  acts  he  relies  as  the  cause  of 
action. 

It  is  the  opinion  of  the  court  that  the  declaration  in  each  case  is 
defective  because  of  the  disjunctive  form  of  allegation  used,  and 
that  the  defect  is  reached  by  general  demurrer. 

This  conclusion  makes  it  unnecessary  to  consider  the  other  par- 
ticulars in  which  it  is  claimed  the  declarations  are  defective.  The 
entry  in  each  case  must  be,  exceptions  sustained.^'' 


*'As  a  general  rule,  it  is  bad  pleading  to  state  material  facts  in  the 
alternative.  Kmg  v.  Brereton,  8  Mod.  328  (1725)  ;  Cook  v.  Cox,  3  M.  &  S. 
109  (1814)  ;  Stone  v.  Graves,  8  Mo.  148  (1843)  ;  Tilt  v.  Tift,  4  Den.  (N.  Y.) 
175  (1847);  Corhin  v.  George,  2  Abb.  Pr.  (N.  Y.)  465  (1856);  Sailers  v. 
Genin,  8  Abb.  Pr.  (N.  Y.)  253  (1859)  ;  Wheeler  v.  Thayer,  121  Ind.  64  (1889)  ; 
Mitchell  V.  Williamson,  6  Md.  210  (1854)  ;  Pittsburg,  &c.,  R.  Co.  v.  Peck, 

165  Ind.  537  (1905)  ;  Sprague  v.  Currie,  133  App.  Div.  (N.  Y.)  18  (1909)  ; 
Pacetti  V.  Cent.  G.  R.  Co.,  6  Ga.  App.  97  (1909)  ;  Sloss-Sheffield  Co.  v.  Smith, 

166  Ala.  437  (1910)  ;  Chitty  on  Pleading,  *26o;  Stephen  on  Pleading  (Heard's 
ed.)  387.  When  a  plaintiff,  in  a  single  count  shifts  his  right  of  action  from 
one  ground  to  another,  and  states  several  breaches  of  duty  in  the  alternative 
or  disjunctively,  so  that  it  is  impossible  to  say  upon  which  of  several  equally 
material  averments  he  relies,  the  complaint  is  bad.  Highland,  &c.,  R.  Co.  v. 
Dusenherry,  94  Ala.  413  (1891).  Compare  Douglas  v.  Marsh,  141  Mich.  209 
(1905)  ;  Spaulding  v.  Edina,  122  Mo.  App.  65  (1906)  ;  Alabama  G.  S.  R.  Co. 
V.  Sanders,  145  Ala.  449  (1906). 

It  has,  however,  been  held  that  it  is  sometimes  permissible  to  plead) 
alternatively,  when  from  the  nature  of  the  case  the  party  pleading  can  not) 
fairly  be  expected  to  know  with  certainty  which  of  two  conditions  exist ( 
either  of  which  would  svistain  his  action  or  defense.  Mann  v.  Cook,  24  Abb.  \ 
N.  C.  314  (1890)   and  note;  Hasbery  v.  Moses,  81  App.  Div.   (N.  Y.)   815. 
(1907)  ,  Mutual  Life  Ins.  Co.  v.  McCurdy,  118  App.  Div.  (N.  Y.)  815  (1907)  ; 
Floyd  v.  Patterson,  72  Tex.  202  (1888)  ;  Bank  of  Saluda  v.  Feaster,  87  S.  Car. 
95  (1910)    And  in  several  states,  by  statute,  a  party  may  allege  a  fact  in  the 
alternative  upon  declaring  his  belief  of  one  alternative  or  the  other  and  his 
ignorance   whether   it   is   one,    or  the   other.    Revised   Laws   Massachusetts 
(1902),  ch.  173,  §  34;  Kentucky  Code  of  Civil  Procedure,  §  113,  subsec.  4; 
Lotilwille  &  N.  R.  Co.  v.  Ft.  Wayne  Co.,  108  Ky.  113  (1900)  ;  Merschelv.  L.  & 
N.  R.  Co.,  121  Ky.  620  (1005).  Missouri  Revised  Statutes  (1909),  §  1828; 
Fleming  v.  Tatiim,  232  Mo.  678  (1911)  ;  Otrich  v.  5"^.  L.,  &c.,  R.  Co.,  154  Mo. 
App.  420  (1910).  Under  the  modern  English  rules  the  averment  of  inconsistent 
sets  of  material  facts  in  the  alternative  is  permitted  unless  embarrassing.  Rules 
of  Supreme  Court,  order  10,  rule  24:  Annual  Practice  (1914)  320;  Smith  v. 
Richardson,  L.  R.  4,  C.  P.  D.  112  (1878). 

The  New  Jersey  Practice  Act  of  1912,  Schedule  A,  rule  37,  provides, 
"Plaintiff  may  claim  alternative  relief  based  upon  an  alternative  construction 
or  ascertainment  of  his  cause  of  action." 


:>j 


^O  ACTIONS 


DOE  d.  BTKCII  ■:'.  PHILIPS. 

Court  of  King's  Bench,  1796. 

C  Term  Reports,  597. 

This  ejectment  was  brought  for  a  forfeiture  in  a  lease. 

Yates  on  a  former  day  moved  that  the  lessor  of  the  plaintiff 
should  give  in  a  particular  of  the  covenants,  of  the  breaches,  of  the 
times  when,  etc.,  on  which  he  meant  to  insist  that  the  defendant  had 
forfeited  the  lease,  and  that  he  should  not  be  permitted  to  give  evi- 
dence at  the  trial  of  any  thing  not  contained  in  those  particulars. _ 

Scarlet  now  showed  cause  against  the  rule,  and  consented  to  give 
a  particular  of  the  covenants  on  which  he  meant  to  rely,  such  a 
particular  as  (he  said)  would  be  sufficient  if  this  were  an  action  of 
covenant  instead  of  ejectment,  but  objected  to  the  extent  of  the 
rule,  which  required  a  particular  of  the  breaches  and  of  the  times 
when  the  forfeitures  accrued. 

But  the  court,  thinking  that  the  application  In  its  full  extent  was 
highly  reasonable,  made  the  rule  absolute.^^ 

*^l  Tidd's  Practltce  (gth  ed.)  S96;  l  Troubat  &  Haly's  Practice  (Whar- 
ton's ed.)  365.;  31  Cyc.  ^6^ :  16  P.  &  L.  Di&_^f  Pa£,_Pa.^^ 


A  bill  of  particulars  is  appropriale^^inaTrdescriptions  oT^actions  where 
the  circumstances  are  such  that  justice  demands  that  a  party  should  be  ap- 
prised of  the  matters  for  which  he  is  to  be  put  for  trial  with  greater  par- 
ticularity than  is  required  by  the  rules  of  pleading."  Per  Rapallo,  J.,  in  Ttllon 
V.  Bcecher,  59  N.  Y.  176  (1874).  While  the  granting  or  refusmg  of  a  bill  of 
particulars'  generally  lies  in  the  discretion  of  the  court,  it  is  usual  to  require 
tjarticulars  only  in  those  cases  where  the  pleadings  are  permitted  to  be  gen- 
eral. If  the  pleading  is  more  indefinite  than  is  allowed  by  law  a  demurrer 
should  be  interposd.  Clarke  v.  Ohio  R.  Co.,  39  W.  Va.  7,12  (1894)  ;  Trans- 
portation Co.  v.  Standard  Oil  Co.,  50  W.  Va.  611  (1902).  See  also,  Le  Breton 
V.  Braham,  3  Burr.  1389  (1763)  ;  Collett  v.  Thompson,  3  B.  &  Pul.  246  (1802)  ; 
Hurst  V.  Wathis,  I  Camp.  68  (1807)  :  Mercer  v.  Savre,  3  Johns.  248  (1808)  ; 
Humphrv  v.  Cotteyou,  4  Cow.  (N.  Y.)  54  (1825)  ;  Johnson  v.  Birley,  $  B. 
&  Aid.  {^o  (1822)  ;  Comm.  v.  SneUing,  32  Mass.  321  (1834)  :  Davies  v.  Cha(>- 
vian,  6  Ad.  &  El.  767  (1837)  ;  Earh  v.  Smith,  T2  Irish  C.  L.  Rep.,  Appendix 
3;;  (1S61)  I  Jlnrris_y^_HansmU-I^W.  N.  C.  (Phila.)  507  C187.O  :  Urnnnston 
V  Enochs,  I  W.  N.  C.  C'Phila.)  244  (187O  ;  Enrhush  v.j'himts,  2  W.  N?C. 
TTmTaT  108  (187-');  Kelsev  v.  Saraent,  100  N.  Y.  602  (t88.0  :  Etzvyer  v. 
Slaftery,  118  App.  Div.  (N.  Y.)  345  C1907)  ;  IVells  v.  Caro,  131  N.  Y.  S.  573 
(1911) ;  Locker  v.  Tobacco  Co.,  260  Fed.  973  (1912). 


CHAPTER  IV. 
Trial. 

SECTION  I.    MODES  OF  TRIAL. 

"These  modes  of  trial  are  seven  in  number:  The  trial  by  the 
record,  by  certificate,  by  witnesses,  by  inspection,  by  wager  of  battle, 
by  wager  of  law,  and  by  jury.  The  first  is  the  appropriate  form  of 
trial  when  the  existence  of  a  record  is  affirmed  on  one  side  and 
denied  on  the  other,  upon  an  issue  of  md  tiel  record.  The  trial  by 
certificate  is  of  rare  occurrence  in  modern  times,  being  almost  en- 
tirely confined  to  the  issue  of  ne  ungues  accoiiple  en  lo'ial  matrimonie. 
This  form  of  issue  can  arise  only  in  dower;  it  is  not  allowed  in 
personal  actions.  The  trial  by  witnesses  is,  at  tlie  common  law, 
applicable  only  to  a  very  few  issues ;  but  it  is  the  only  form  of  trial 
which  is  known  to  the  civil  law.  It  is  the  proper  form  of  trial  when, 
to  a  widow's  writ  of  dower,  the  tenant  pleads  that  the  husband  is 
alive. 

"The  trial  by  inspection  or  examination  occurred  when  the  judges, 
upon  the  testimony  of  their  own  sense,  were  able  to  decide  the  point 
in  dispute.  This  mode  of  trial  seems  to  have  been  incidentally  swept 
av.-ay  in  England  in  the  demolition  of  real  actions.  The  wager  of 
battle  was  an  appeal  to  arms,  and  proceeded  upon  the  theory  that 
heaven  would  give  the  victory  to  him  who  had  the  right.  It  was 
confined,  as  far  as  civil  actions  are  concerned,  to  issue  joined  in  a 
writ  of  right,  "the  last  and  most  solemn  decision  of  real  property." 
It  was  abolished  by  statute.  Wager  of  law  was  a  method  of  decid- 
ing the  issue  by  permitting  the  defendant  to  swear  to  the  truth  of  his 
defense.  He  brought  eleven  compurgators  with  him  into  court  wlio 
swore  that  they  believed  that  he  spoke  the  truth;  and  the  oaths  of 
the  twelve  were  as  conclusive  against  the  plaintiff  as  a  verdict  would 
have  been.  This  method  of  trial  also  has  been  abolished  in  England 
by  statute.  The  seventh,  and  by  far  the  most  important  mode  of 
trial,  is  the  trial  by  jury,  called  also  the  trial  per  pais,  or  by  the 
country.  It  is  on  account  of  the  peculiar  characteristics  of  the  trial 
by  jury  that  the  system  of  pleading  at  common  law  is  what  it  is; 
and  many  of  the  rules  which  have  been  criticised  as  most  technical 
and  artificial,  prove  to  be  both  logical  and  sound  when  considered  in 
relation  to  the  tribunal  for  whose  guidance  they  were  framed.  Trial 
by  jury  is,  with  the  exception  of  tlie  trial  by  the  record,  the  only 
form  of  trial  in  use  in  the  United  States."^ 


'Pepper  on  Pleading,  4;  also,  18  A.  &  E.  Encyc.  of  Law  (i  ed.),  470.  See 
also  III  Blackstone's  Commentaries,  330;  Stephen  on  Pleading  (9  Am.  ed.)- 
76;  Elliott's  General  Practice,  §  504,  et  seq.;  Thompson  on  Trials,  passim.; 
Thayer  on  Evidence,  passim.  Under  modern  statutes  and  rules  many  cases 
may  be  tried  by  the  court  without  a  jury. 


332  TRIAL 

MILLE  LACS  COUXTY  COIMATISSTONERS  v.  MORRISON. 
Supreme  Court  of  Minnesota,  1875. 

22  Minn.   178 

Proceedings  to  enforce  payment  of  delinquent  taxes  in  the  county 
of  Mille  Lacs  under  the  Act  of  March  9,  1874  (Laws,  1874,  ch.  i, 
sec.  113).  The  defendant  objected  to  a  defect  in  the  county  auditor's 
affidavit  to  the  tax  Hst,  which  was  overruled,  and  to  the  sufficiency 
of  the  affidavit  of  publication,  which  was  allowed  to  be  corrected. 
The  defendant  then  demanded  a  jury  trial,  which  was  denied.  After 
rendering  judgment  against  defendant's  objections,  the  district  judge 
certified  the  case  to  the  supreme  court. - 

GiLFiLLAN,  C.  J. :  \\'hethcr  the  taxpayer  is  entitled  to  a  jury 
trial  in  these  proceedings  is  an  important  question,  as  it  affects  both 
the  power  of  the  state  to  collect  its  revenues  by  a  speedy  and  conven- 
ient mode,  and  tlie  security  of  the  citizen  against  oppression  and 
illegal  acts.  It  is  claimed  that  because  legal  rights  are  involved  and 
are  to  be  determined,  it  is  a  proceeding  at  law,  and  that  in  all  pro- 
ceedings at  law  the  right  to  a  trial  by  jury  is  guaranteed  by  the  Con- 
stitution, and  the  case  of  Parsons  v.  Bedford,  3  Pet.  (U.  S.)  433, 
is  cited.  In  that  case  Mr.  Justice  Story,  discussing  the  provisions  of 
the  Federal  Constitution  in  respect  to  trial  by  jury,  says  (p.  447)  : 
"By  common  law  they  meant  what  the  Constitution  in  the  third 
article  denominated  Maw,'  not  merely  suits  which  the  common  law 
recognized  among  its  old  and  settled  proceedings,  but  suits  in  which 
legal  rights  were  to  be  ascertained  and  determined,  in  contradistinc- 
tion to  those  where  equitable  rights  alone  were  recognized  and 
equitable  remedies  administered ;  or  where,  as  in  the  admiralty,  a 
mixture  of  public  law  and  maritime  law  and  equity,  were  often 
found  in  the  same  suit." 

If,  by  this  language,  the  learned  judge  meant  that  in  all  proceed- 
ings to  ascertain  and  determine  rights,  other  than  those  of  equitable 
or  maritime  jurisdiction,  the  Constitution  guarantees  the  right  of 
trial  by  jury,  the  language  is  certainly  too  broad ;  for  there  are  many 
proceedings,  involving  important  rights,  of  neither  equitable  nor 
maritime  jurisdiction,  in  which,  as  settled  by  many  decisions,  the 
parties  are  not  entitled  to  a  jury  trial.  We  refer  to  a  few  of  these: 
Proceedings  by  the  state  under  its  right  of  eminent  domain.  Penn. 
R.  Co.  V.  Lutheran  Congregation,  53  Pa.  St.  445 ;  Buffalo  Bayou,  etc., 
R.  Co.  V.  Ferris,  26  Texas  588;  Haverhill  Bridge  v.  County  Comm'rs, 
103  Mass.  120;  Dronberger  v.  Reed,  11  Ind.  420;  Livingston  v. 
Mayor,  etc.,  of  N.  Y.,  8  Wend.  (N.  Y.)  85.^ 

'The  statement  of  facts  is  from  the  opinion,  part  of  which  is  omitted. 

'Central  Branch  U.  P.  R.  Co.  V.  Atchison.  T.  &  S.  F.  R.  Co.,  28  Kans. 
453  (1882)  ;  Ingram  v.  Maine  IV.  Co.,  98  Maine  566  (1904) ;  IVixom  v.  Bixby, 
127  Mich.  479  (1901);  St.  Joseph  v.  Gciwits,  148  Mo.  210  (1899);  State  v. 
Jones,  239  N.  Car.  613,  52  S.  E.  240  (1905)  ;  Gilmer  v.  Hunnicutt,  57  S.  Car. 
166,  35  S.  E.  521  (1900) ;  Bauman  v.  Ross,  167  U.  S.  549,  42  L.  ed.  274,  17  Sup. 


MILLE  LACS   COUNTY  V.    MORRISON  333 

Proceedings  to  determine  the  right  to  office  under  an  election. 
Whallon  v.  Bancroft,  4  Minn.  109 ;  Ewing  v.  Filley,  43  Pa.  St.  384.* 

Proceedings  to  assess,  on  property  benefited,  the  damages  for 
taking  lands  for  highways.  People  v.  Mayor,  etc.,  of  Brooklyn,  4 
N.  Y.  419;  McMasters  v.  The  Commonwealth,  3  Watts  (Pa.)  292. 
In  mandamus.  Atherton  v.  Sherwood,  15  Minn.  221."  Under  statutes 
for  settling  estates  of  insolvents.   Sands  v.  Kimhark,  27  N.  Y.  147.^ 

Proceedings  to  appoint  guardians  of  insane  persons.  Gaston  v. 
Bahcock,  6  Wis.  503. 

References  to  assess  the  value  of  improvements  under  occupying 
claimants'  laws,  where  such  mode  of  assessment  existed  at  the 
adoption  of  the  constitution.  Ross  v.  Irving,  14  111.  171.  In  suits 
uniting  the  legal  cause  of  action  to  recover  a  debt,  with  the  equitable 
cause  of  action  to  foreclose  a  mortgage  given  to  secure  it.  Stillwell 
V.  Kellogg,  14  Wis.  461.^  To  enforce  liens  given  by  statute  upon 
vessels  for  labor  and  material.  Sheppard  v.  Steele,  43  N.  Y.  52. 
In  summary  proceedings  to  enforce  debts,  where  the  party  may  be 
presumed,  from  his  entering  into  the  contract,  to  have  consented  to 
such  mode  of  enforcing  it.  Bank  of  Columbia  v.  Okeley,  4  Wheat. 
(U.  S.)  235.®  As  to  enforce  recognizances  or  the  bonds  of  sheriffs. 
Gildersleeve  V.  The  People,  10  Barb.  (N.  Y.)  35;  Murry  v.  Askew, 
6  J.  J.  Marsh.  (Ky.)  27;  Cr  eight  on  v.  Johnson,  6  Litt.  (Ky.)  240. 

Summary  convictions  for  petty  offenses.  Byers  v.  Common- 
wealth, 42  Pa.  St.  89.  To  determine  the  settlement  of  paupers. 
Shirley  v.  Lunenburg,  11  Mass.  379.  Upon  judgments  of  courts  mar- 
tial under  military  laws.  Rawson  v.  Brown,  18  Maine  216.* 


Ct.  966  (1896).  Compare  Lake  Erie,  W.  &  St.  L.  R.  Co.  v.  Heath,  9  Ind.  558 
(1857)  ;  Jiivinall  v.  Jamesburg  D.  D.,  204  111.  106,  68  N.  E.  440  (1903)  ;  Pusey's 
Appeal.  83  Pa.  St.  67  (1876) ;  King  v.  Greenwood  Cent.  Co.,  67  Ohio  St.  240, 
65  N.  K  882  Tl902)r^    ~^ 

*Mason  v.  State,  58  Ohio  St.  30,  50  N.  E.  6,  41  L.  R.  A.  291  (1898)  ;  State 
V.  Doherty,  16  Wash.  382,  47  Pac.  958,  58  Am.  St.  39  (1897)  ;  State  v.  Moores, 
56  Nebr.  l,  76  N.  W.  530  (1898)  ;  Wheeler  v.  Caldwell,  68  Kans.  776,  75  Pac. 
1031  (1904)  ;  Contra:  State  v.  McDonald,  108  Wis.  8,  84  N.  W.  171,  81  Am. 
St.  878  (1900). 

^Mayer  v.  Wilkinson,  52  Nebr.  764,  73  N.  W.  214  (1897). 

*Weil  v.  Jaeger,  174  III.  133,  51  N.  E.  196  (1898)  ;  In  re  Christensen,  loi 
Fed.  243  (1900)  ;  Vollkommer  v.  Frank,  107  App.  Div.  594,  95  N.  Y.  S.  324 
(1907),  affirmed  205  U.  S.  521,  51  L.  ed.  911 ;  O'Neill  v.  Glover,  71  Mass.  144 
(185s)  ;  Kempton  v.  Saunders,  130  Mass.  236  (1881)  ;  Merrill  v.  Bowler,  20 
R.  I.  226,  38  Atl.  114  (1897). 

^The  joinder  of  an  equitable  cause  of  action  with  one  purely  legal  does 
not  deprive  the  defendant  of  the  right  to  a  jury  trial.  Van  Deventer  v.  Van 
Deventer,  32  App.  Div.  578,  53  N.  Y.  S.  236  (1898) ;  Myers  v.  Knabe,  4  Kans. 
App.  484,  46  Pac.  472  (1896)  ;  Sherman  V.  Randolph,  13  Okla.  224,  74  Pac.  102 
(1903).  But  see  Guaranty  Trust  Co.  v.  Robinson,  31  Misc.  277,  64  N.  Y.  .S.  366 
(1900)  ;  Bank  of  .Spartanburg  v.  Chickasaw  Soap  Co.,  70  S.  Car.  253  (1904). 
Federal  practice  did  not  permit  the  joinder  of  an  equitable  with  a  legal  cause 
of  action.  Scott  v.  Neely,  140  U.  S.  106,  35  L.  ed.  358,  11  Sup.  Ct.  712  (1891). 
But  see  Act  of  Congress  of  Mar.  3,  1915,  ch.  90,  38  Stat.  L.  956. 

"Kruf/h  v.  Lycoming  F.  Ins.  Co.,  77  Pa.  St.  15  (1874)-  Parties  may  consent 
to  arbitration,  but  compulsory  arbitration  violates  the  right.  Rhit^fs  v.  Clark, 
.51  Pa    St   q6  (1866)  :  Cutler  v   Richlev.  mi  Pa.  St.  105,  2^;  Atl.  96  (1892). 

"People  v.  Daniel," 50  N.  Y.  274  (1872)  ;  :itate  v.  Wagener,^ 74  Minn. 
518,  77  N.  W.  424,  42  L.  R.  A.  749,  73  Am.  St.  369  (1898). 


334 


TRIAL 


In  proceedin{;s  for  the  assessment  and  collection  of  taxes. 
McCarrol's  Lessee  v.  Weeks,  $  Hayw.  (Tenn.)  246;  Cozvles  v. 
Brittain,  2  Hawks  (N.  Car.)  204;  Harper  v.  Tozvn  of  Elberton,  23 
Ga.  566;  Nezv  Tozvn  Cut  v.  Seabrook,  2  Strobh.  (S.  Car.)  560; 
Crandall  v.  James,  6  R.  I.  144." 

The  general  principle  upon  which  tliese  cases  were  decided  was 
tliat  tiie  several  constitutions  intended  only  to  preserve  the  right  of 
trial  by  jury  in  those  cases  where  it  existed  at  the  adoption  of  the 
respective  constitutions,  and  that  rights  of  persons  or  pro])crty  com- 
ing in  question  in  those  controversies  in  which,  before  that  time,  the 
right  was  not  recognized  do  not  come  within  the  meaning  of  the 
constitutional  guaranties.  This  court,  in  WJiallon  v.  Bancroft,  4 
]\Iinn.  109,  said  (p.  113)  :  "Wherever  the  right  of  trial  by  jury  could 
be  had  under  tlie  territorial  laws,  it  may  now  be  had,  and  the  legis- 
lature can  not  abridge  it ;  and  those  cases  which  were  triable  by  the 
court,  without  the  intervention  of  a  jury,  may  still  be  so  tried." 

It  is  not,  of  course,  to  be  understood  from  this  that  the  right  to 
a  jury  trial  will  depend  on  the  form  of  the  action  or  proceeding,  or 
tliat  the  legislature  may,  by  changing  the  form  of  proceeding  or 
remedy,  take  that  mode  of  trial  from  those  rights  to  which  the  con- 
stitution intended  to  secure  it.  The  Constitution  of  Vermont  pro- 
vides :  "Trial  of  issues  proper  for  the  cognizance  of  a  jury,  in  the 
Supreme  or  county  courts,  shall  be  by  jury,  except  when  parties 
otherwise  agree."  This,  though  differently  expressed,  is  substan- 
tially tlie  same  as  the  provision  in  the  constitution  of  this  state.  The 
Supreme  Court  of  Vermont,  discussing  this  clause  in  Plimpton  v. 
Tozi'n  of  Somerset,  33  Vt.  283,  said :  "All  rights,  whether  then  or 
thereafter  arising,  which  would  properly  fall  into  those  classes  of 
rights  to  which,  by  the  course  of  the  common  law,  the  trial  by  jury 
was  secured,  were  intended  to  be  embraced  within  this  article."  This 
is  the  best  definition  that  we  have  found  of  the  classes  of  cases  to 
which  the  trial  by  jury  is  secured,  for  it  makes  the  right  to  such  a 
trial  depend  on  the  nature  and  character  of  the  controversy,  and  not 
on  the  form  of  action  or  proceeding  in  which  it  is  to  be  determined. 

The  judgment,  under  the  law  of  1874,  is  made  conclusive  as  to 
everything  except  tlie  jurisdiction  of  the  court.  It  has  this  effect, 
not  only  as  between  the  state  and  the  owner  of  the  land,  but  as  to  all 
parties,  whenever  or  however  the  question  may  arise.  It  is  evident 
that  if  it  concludes  the  owner  for  all  time,  as  it  certainly  does,  as  to 
rights  which,  by  the  law  existing  when  the  constitution  was  adopted, 
were  to  be  tried  by  jury,  it  deprives  the  owner  of  that  constitutional 
right  unless  he  may  have  that  trial  before  judgment. 

At  the  time  of  the  adoption  of  the  constitution  the  owner,  when- 
ever, in  an  action  at  law,  the  c[uestion  of  title  under  tax  laws  might 
arise,  had  the  right  to  a  jury  trial  of  certain  issues  upon  which  the 
title  depended.  But  it  was  not  every  matter  involved  in  the  tax 
proceedings  w^hich  he  could  have  so  tried.  There  will,  and  always 
must,  be  some  matters  as  to  which  the  proceedings  themselves  are 

^"Ball  V.  Ridge  Copper  Co.,  118  Mich.  7,  76  N.  W.  130  (1898)  ;  State  v. 
Bley,  162  Ala.  239,  50  So.  263   (1909). 


MILLE   LACS   COUNTY  V.    MORRISON  335 

necessarily  final,  and  as  to  which  no  further  hearing  can  be  allowed. 
For  instance,  at  what  value  the  property  should  be  assessed,  or  what 
rate  of  tax  should  be  levied,  or  for  what  purposes  taxes  should  be 
raised,  are  matters  which,  of  necessity,  can  not  be  submitted  to  a 
jury.  No  revenue  system  ever  devised  has  provided  for  the  inter- 
vention of  a  jury  to  determine  those  things,  either  before  or  after 
sale.  No  such  system  could  stand.  In  McCarrol's  Lessee  v.  Weeks, 
5  Hayw.  (Tenn.)  246,  which  arose  under  a  law  somewhat  similar  to 
tJie  law  of  1874,  and  in  which  the  court  appear  to  go  further  than  we 
are  disposed  to,  the  court,  speaking  of  proceedings  for  assessing 
taxes,  very  justly  said:  "It  is  certainly  true  that  they  have  the 
character  of  summary  proceedings,  and  it  is  equally  true  that  they 
must,  of  necessity,  be  so ;  for,  if  the  government  were  necessitated 
to  take  the  cautious  and  tedious  steps  of  the  common  law  in  giving 
personal  notice,  making  up  pleadings,  and  having  a  jury  trial,  it 
would  cease  to  exist.  All  governments,  to  raise  their  revenue,  lay 
taxes  on  property,  and  their  proceedings  necessarily  must  be  sum- 
mary and  in  rem  as  to  that." 

The  only  issues  which,  upon  a  question  of  title  under  a  tax  sale, 
any  party  could  in  any  case  have  tried  by  a  jury,  were  those  that 
might  be  made  upon  the  authority  to  tax — that  is,  whether  the  tax 
was  laid  upon  property  subject  to  taxation;  upon  the  performance, 
by  the  proper  officers,  of  tlie  things  made  by  law  essential  to  the 
validity  of  the  tax  or  sale ;  and  upon  the  nonpayment  of  the  tax. 
In  no  case  could  he  have  a  jury  try  and  determine  how  much  the  tax 
ought  to  have  been. 

It  is  true  the  act  does  not  expressly  provide  for  a  jury  trial ;  but 
it  must  be  presumed  that  the  legislature  did  not  intend  to  exclude  it 
where  it  is  necessary  to  the  validity  of  the  proceedings  and  the  con- 
clusive effect  of  the  judgment.  Under  its  general  powers  the  district 
court  may  direct  a  jury  trial  of  any  issues  in  which  the  parties  have 
a  right  to  that  mode  of  trial,  in  any  proceedings  pending  before  it ; 
and  when,  in  these  tax  proceedings,  either  of  the  two  issues  we  have 
mentioned  is  made,  and  a  jury  trial  demanded,  may  direct  the  matter 
to  be  tried  at  a  general  term.^^ 

No  such  issue  Is  raised  in  this  case.  The  answer  relates  only 
to  the  acts  and  omissions  of  the  assessing  officers  and  board  of  equal- 
ization; and  if  the  facts  were  as  pleaded,  and  by  reason  thereof  the 
taxes  appearing  on  the  list  against  the  property  were  too  high,  it  was 
the  duty  of  the  court  merely  to  reduce  the  taxes  to  what  it  should 
deem  the  proper  amounts. 

Judgment  affirmed.^^ 


^State  V.  Jackson,  56  W.  Va.  558,  49  S.  E.  465  (1904). 

*""It  is  the  right  of  trial  by  jury  which  exists  and  is  preserved,  and 
what  that  right  is  is  a  purely  historical  question,  a  fact  to  be  ascertained  like 
any  other  social,  legal  or  political  fact.  As  the  constitution  speaks  from  the 
time  of  its  adoption,  the  fact  of  the  right  to  jury  trial,  which  is  ascertained 
to  have  existed  at  that  time,  must  necessarily  determine  the  meaning  of  the 
clause  which  recognizes  and  preserves  that  right."  Pomeroy's  note  to  Sedg- 
wick's Construction  of  Statutory  and  Constitutional  Law  (2d  ed.),  p.  487. 
See,   also,   Cooley's   Constitutional   Limitations    (6th   ed.),   p.    505;    Copp   v. 


33t)  TRIAL 

ROSS  V.  McCALDIN. 

Court  of  Appeals  of  New  York,  1909. 

195  A''.  Y.  210." 

WiLLiARD  Bartlett,  J. :  This  is  a  common-law  action  to  recover 
•an  indebtedness  of  $1,000  alleged  to  be  due  to  the  plaintiff  from  the 
defendant.  The  principal  plea  was  payment.  Evidently  anticipating 
.this  plea  the  plaintiff  in  his  complaint  alleged  that  he  had  accepted 
two  promissory  notes  from  the  defendant  on  account  of  his  debt 
which  had  never  been  paid  and  that  he  had  given  to  the  defendant  a 
receipt  for  $1,000  in  full  settlement  of  all  liability,  which  receipt  he 
asked  to  have  vacated,  annulled  and  rescinded.  This  prayer  for 
relief  was  followed  by  a  demand  for  judgment  in  the  sum  of  $1,000, 
with  interest  and  costs. 

The  allegations  of  the  complaint  in  regard  to  this  receipt  do  not 
suffice  to  turn  the  action  into  a  case  for  the  cognizance  of  a  court  of 
equity.  The  receipt  is  not  a  contract.  Ryan  v.  Ward,  48  N.  Y.  204. 
It  is  merely  a  declaration  which  the  defendant  might  use  as  evidence 
in  support  of  his  plea  of  payment.  The  cases  cited  by  the  respondent 
in  which  equity  has  entertained  jurisdiction  of  suits  to  cancel  releases 
have,  therefore,  no  application  here.  We  are  clearly  of  opinion  that 
this  action  is  a  common-law  action,  in  which  the  defendant  was  en- 
titled to  a  jury  trial  provided  he  made  a  seasonable  demand  therefor 


Henniker,  55  N.  H.  179,  20  Am.  Rep.  194  (1875)  ;  Whitehurst  v.  Coleen,  53 
111.  247  (1870)  ;  Ranningv^aylor,  24  Pa.  St.  289  (1855) ;  Lawrence  v.  Borm, 
g6  Pa.  St.  22.^  (iST^TTCafital  T.  Co.  v.  Hof,  174  U.  S.  i,  43T:.  ed.  873,  19 
Sup.  Ct.  580  (1898)  ;  Bucknam  v.  Bucknam,  176  Alass.  229,  57  N.  E.  343,  49 
L.  R.  A.  735  (1900)  ;  Drady  v.  District  Court,  126  Iowa  345,  102  N.  W.  115 
(1905)  ;  Gunn  v.  Union  R.  Co.,  27  R.  I.  320,  62  Atl.  118,  2  L.  R.  A.  (N.  S.) 
362  (1905)  ;  Mead  v.  Cutler,  194  Mass.  277,  80  N.  E.  496  (1907)  ;  Robison  v. 
Wayne  Circuit  Judges,  151  Mich.  315,  115  N.  W.  682   (1908). 

_A  statute  providing  that  in  civil  actions  a  party  shall  not  be  entitled  to 
a  trial  by  jury  unless  he  files  within  a  prescribed  time  a  demand  for  such  a 
trial  is  constitutional.  Foster  v.  Morse,  132  Mass.  354,  42  Am.  Rep.  438  (1882)  ; 
Clark  v.  Baker,  192  Mass.  226,  78  N.  E.  455  (1906);  Goodman  v.  Superior 
Court  of  Santa  Clara  County,  8  Cal.  App.  22,2,  96  Pac.  395  (1908)  ;  Heard  v. 
Kennedy,  116  Ga.  36,  42  S.  E.  509  (1902)  ;  Condon  v.  Royce,  68  N.  J.  L.  222, 
52  Atl.  630  (1902)  ;  People  v.  Judge  of  Superior  Ct.,  41  Mich.  31,  i  N.  W.  985 
(1879).  In  civil  cases  the  right  to  a  jury  trial  may  be  waived.  Baird  v.  Mayor 
74  N.  Y.  382  (1878)  ;  Palmer  v.  Dreii',  59  N.  H.  594  (1879)  ;  Lunnnis^^l^Mi^ 
S^ndy  Land  &-c.  Co.,  188  Pa.  St.  27,  41  Atl.  319  (1898)  ;  Claussenius  v.  Clatis- 
senius,  179  111.  545,  53  N.  E.  1006  (1899)  ;  Chessman  v.  Hale,  31  Mont.  577,  79 
Pac.  254,  68  L.  R.  A.  410  (1905)  ;  Brooklyn  H.  R.  Co.  v.  Brooklyn  C.  R.  Co., 
105  App.  Div.  88,  93  N.  Y.  S.  849  (1905)  ;  New  York  Code  o£  Civil  Procedure, 
§  968,  provides :  "In  each  of  tlie  following  actions,  an  issue  of  fact  must  be 
tried  by  a  jury  unless  a  jury  trial  is  waived,  or  a  reference  is  directed:  i.  An 
action  in  which  the  complaint  demands  judgment  for  a  sum  of  money  only. 
2.  An  action  of  ejectment;  for  dower;  for  waste;  for  a  nuisance;  or  to  re- 
cover a  chattel." 

As  to  divorce,  see  Bishop  on  Marriage  and  Divorce,  §  256;  Poivell  v. 
Powell,  104  Ind.  18,  3  N.  E.  639  (i88s)  ;  Marchmont  v.  Marchmont,  I  Sw.  & 
Tr.  228  (1858)  ;  Misjmj^jillisorhA(>  Pa.  St.  32i_Xi863). 

"The  statemlfnt  of  facfs  and"afgufnents  of  counsel  are  omitted.  The  de- 
cisioi  reverses  123  N.  Y.  App.  Div.  13.  ' 


ROSS   V.    M'CALDIN  337 

and  did  not  waive  his  right  thereto  in  any  of  the  modes  prescribed 
by  the  statute  relating  to  that  subject.^* 

The  action  was  moved  for  trial  at  a  special  term  of  the  Supreme 
Court  in  Kings  county.  At  tlie  outset  of  the  trial  the  following  pro- 
ceedings took  place : 

"Defendant's  counsel :  Your  honor  will  see  by  reading  the  com- 
plaint that  there  is  no  equitable  cause  of  action  set  out;  under  the 
former  practice  the  proper  course  would  have  been,  if  there  was  no 
equitable  cause  of  action  set  up,  to  ask  for  a  dismissal  of  the  com- 
plaint, but  under  the  decisions  since  and  the  provisions  of  the  code 
allowing  different  causes  of  action  to  be  united,  whether  equitable  or 
not,  it  has  been  held  that  the  court  must  determine  from  the  allega- 
tions of  the  complaint,  not  from  the  prayer  for  relief,  what  the  char- 
acter of  the  action  is.  Your  honor  will  see,  after  looking  at  this 
complaint,  that  the  relief  demanded  is  a  judgment  for  a  sum  of 
money,  and  I  think,  if  your  honor  will  read  the  complaint,  you  wiP 
see  that  there  is  no  equitable  cause  of  action  set  forth. 

"The  Court :  I  think  I  will  hear  the  proofs  and  decide  the  ques- 
tion afterwards. 

"Motion  denied.  Defendant  excepts." 

The  motion  thus  made  by  the  counsel  for  the  defendant,  to  the 
denial  of  which  he  duly  excepted,  was  a  demand  that  the  case  be  sent 
to  a  trial  term  to  be  tried  by  a  jury.  This  clearly  appears  subse- 
quently in  the  record  by  Vv'hat  occurred  after  the  plaintiff  had  intro- 
duced his  testimony  and  rested. 

"Defendant's  counsel  renewed  motion  on  the  grounds  already 
stated  to  dismiss  the  complaint  or  to  send  tlie  same  to  trial  term  to  be 
tried  by  a  jury.  Motion  was  denied.  Defendant  excepted."  This 
statement  plainly  shows  that  the  learned  judge  at  special  term  must 
distinctly  have  understood  the  defendant's  counsel  to  have  demanded 
a  jury  trial  unless  the  court  was  willing  to  dismiss  the  complaint  on 
the  ground  that  it  did  not  state  a  cause  of  action  cognizable  by  a 
court  of  equity.  The  course  pursued  by  counsel  for  the  defendant 
was  that  approved  by  this  court  in  Hand  v.  Kennedy,  83  N.  Y.  149, 
155,  and  an  exception  was  duly  taken  to  the  denial  of  the  motion  in 
each  instance.  These  exceptions  raise  a  question  of  law  for  the  con- 
sideration of  this  court.  We  think  that  they  were  well  taken  and 
entitled  the  defendant  to  a  reversal  of  the  judgment  on  the  ground 
that  he  had  a  right  to  have  the  case  tried  by  a  jury.  He  asserted  that 
right  in  due  time  and  did  nothing  which  could  fairly  be  construed 
into  a  waiver  thereof. 

The  judgment  should  be  reversed  and  a  new  trial  granted,  costs 
to  abide  tlie  event. 


"New  York  Code  of  Civil  Precodure,  §  1009.  Herh  v.  Metropolitan 
Hospital  &  Dispensary,  80  App.  Div.  145,  80  N.  Y.  S.  552  (1903). 

"A  party  can  not  be  held  to  have  waived  his  constitutional  right  to  a 
jury  trial  unless  an  intention  to  do  so  appears  affirmatively  or  by  necessary 
inference  from  unequivocal  acts  or  conduct."  Harsey  v.  McMullcn,  109  Minn. 
ZZ2,  123  N.  W.  1078  (1909).  Compare  Gable  v.  Sivohe,  64  Nebr.  838,  90  N.  W. 
919  (1902),  with  Chessman  v.  Hale,  31  Mont.  577,  79  Pac.  254,  68  L.  R.  A, 
410   (1904). 

22 — Civ.  Prog. 


338  TRIAL 

CuUcn,  Ch.  J.,  Gray,  Edward  T.  Bartlctt  and  Hiscock,  JJ.,  con- 
cur ;  \\'crner,  J-,  dissents ;  Chase,  J.,  absent. 
Judgment  reversed.^" 


"The  constitutional  provision  that  the  riftht  of  trial  by  jury  shall  remain 
inviolate  does  not  concern  issues  of  fact  in  equity.  Mcridcn  Sav.  Bank  v. 
M'Connack,  79  Conn.  260,  64  Atl.  338  (1Q06)  ;  Bcmis  v.  Armour  Packing  Co., 
10=,  Ga.  203,  31  S.  E.  173  (1809)  ;  Canaran  y.  Payc,  i4__Pa*_SllIier.  Ct..  91 
(1907)  ;  Davis  v.  Settle,  43  W.  Va.  17,  26  S.  E.  557  (1898)  ;  Ely  v.  Coont::, 
167  Mo.  371,  67  S.  W.  299  (1902);  Noble  v.  Learned,  153  Cal.  245,  94  Pac, 
1047  (1908)  ;  LaceUcs  v.  Clark,  204  IMass.  362,  90  N.  E.  875  (1910).  In  juris- 
diciions  where  legal  and  equitable  causes  of  action  are  joined  in  the  same 
complaint  a  party  is  not  deprived  thereby  of  his  riftht  to  have  a  trial  by  jury 
of  the  legal  cause  of  action.  Davis  v.  Morris,  36  N.  Y.  569  (1867)  ;  Hudson 
V.  Carv/,  44  N.  Y.  553  (1871)  ;  Siernhergcr  v.  McGovern,  56  N.  Y.  12  (1874)  ; 
Ream's  v.  Spann,  28  S.  Car.  530,  6  S.  E.  325  (1887)  ;  Hughes  v.  Dunlap,  91 
Cal.  385,  27  Pac.  642  (1891)  ;  Abernathy  v.  Allen,  132  Ind.  84,  31  N.  E.  534 
(1892)  :  Where,  however,  the  cause  of  action  is  equitable,  but  legal  relief  is 
sought  as  an  incident  to  the  equitable  cause  merely,  then  neither  party  is  enti- 
tled to  a  jury  trial  as  a  matter  of  right.  Koeper  v.  Louisville,  109  Minn.  519, 
124  N.  \V.  218  (1910).  In  bringing  an  action  of  a  distinctly  equitable  character 
the  plaintiff  may  be  held  to  waive  his  right  to  a  jury  trial.  Davison  v. 
Associates,  71  N.  Y.  333  (1877);  Cogswell  v.  A'".  Y.,  N.  H.  &  H.  R.  Co., 
105  N.  Y.  319,  II  N.  E.  518  (1887)  ;  Loeb  v.  Royal  Arcanum,  198  N.  Y.  180, 
91  N.  E.  547  (1910).  But  such  proceeding  by  the  plaintiff  will  not  deprive  the 
defendant  of  his  right  to  a  jury  trial  if  otherwise  entitled  thereto.  Wheelock 
V.  Lee,  74  N.  Y.  495^  (1878)  ;  Sommer  v.  A^.  Y.  El.  R.,  60  Hun  148,  14  N.  Y.  S. 
619,  38  N.  Y.  St.  419  (1891). 

In  England,  under  the  rules  of  the  supreme  court,  the  mode  of  trial  is 
regulated  by  order  XXXVI,  rules  2  to  8.  In  slander,  libel,  false  imprisonment, 
malicious  prosecution,  seduction  or  breach  of  promise  of  marriage,  either 
party  may  have  a  trial  by  jury  on  giving  notice.  In  all  other  cases  the  trial 
■will'be  by  the  judge  alone  unless  an  order  be  made  for  a  jury  trial.  Such 
an  order  will  be  made  if  either  party  applies  in  proper  time,  unless  the  action 
is  one  w-hich  could,  without  the  consent  of  the  parties,  have  been  tried  without 
a  jury  before  the  Judicature  Act  of  1873,  or  unless  it  appears  that  the  case 
involves  a  prolonged  examination  of  documents  or  accounts  or  a  scientific 
or  local  investigation  which  can  not  conveniently  be  made  by  a  jury.  Timson 
V.  Wilson,  L.  R.  38  Ch.  Div.  72  (1888)  ;  Jenkins  v.  Bushby,  L.  R.  1891,  I 
Ch.  Div.  484. 

In  equity  the  chancellor  may  award  an  issue  to  be  tried  at  law  before 
a  jury,  for  the  purpose  of  informing  the  conscience  of  the  court  upon  doubtful 
questions  of  fact,  but  the  granting  of  such  an  issue  lies  within  the  sound 
discretion  of  the  court.  Raymond  v.  Flavel,  27  Ore.  219,  40  Pac.  158  (1895)  ; 
Canavim  J^  Pavg.  34  Pa  Super.  Ct>-QJL_Xi907)  ;  Biggersiaff  v.  Biggerstaff, 
i^oTll.  407,  54  N.  E.  333  (1899)  ;  Nashville  R.  &  L.  Co.,  v.  Bnnn,  168  Fed.  862 
(1909)  ;  Clark  v.  Roberts,  206  Mass.  235,  92  N.  E.  461  (1910).  An  issue, 
except  where  it  is  directed  by  statute,  is  merely  advisory.  If  the  chancellor 
is  not  satisfied  with  the  verdict  he  may  set  it  aside  and  award  a  new  trial 
of  the  issue,  or  he  may  disregard  it  and  proceed  to  decide  the  case  without 
the  intervention  of  a  jury.  Carter  v.  Jeffries,  no  Va.  735,  67  S.  E.  284  (1910). 


FIRST   NAT.    BANK   OF  KOCK   SPRINGS  V.   FOSTER  339 

FIRST  NATIONAL  BANK  OF  ROCK  SPRINGS  v.  FOSTER. 

Supreme  Court  of  Wyoming,  1900. 

9  Wyo.  157." 

Corn,  J. :  Defendant  in  error  brought  suit  against  plaintiff  in 
error  upon  a  lost  certificate  of  deposit.  Under  the  instruction  of 
the  court  that  three-fourths  of  the  jury  might  concur  in  and  return 
a  verdict,  a  verdict  for  the  plaintiff  was  returned,  signed  by  ten  of 
the  jurors,  the  other  two  refusing  to  concur. 

The  defendant  below  objected  to  the  verdict  being  received  for 
the  reason  that  it  was  not  unanimous,  and  therefore  not  a  lawful 
verdict.  The  objection  was  overruled  and  the  verdict  entered,  and 
the  defendant  took  its  exception.  Our  Declaration  of  Rights,  art. 
I,  sec.  9  of  the  constitution  provides:  ''The  right  of  trial  by  jury 
shall  remain  inviolate  in  criminal  cases,  but  a  jury  in  civil  cases  in 
all  courts,  not  of  record,  may  consist  of  less  than  twelve  men,  as  may 
be  prescribed  by  law.  Hereafter  a  grand  jury  may  consist  of  twelve 
men,  any  nine  of  whom  concurring  may  find  an  indictment,  but  the 
legislature  may  change,  regulate,  or  abolish  the  grand  jury  system." 

Section  3651,  Rev.  Stat.  1899,  provides  that:  "In  all  civil  cases 
in  any  of  the  courts  in  the  state  of  Wyoming,  which  shall  be  tried 
by  a  jury,  three-fourths  of  the  number  of  the  jurors  sitting  in  any 
such  case  may  concur  in  and  return  a  verdict  in  said  case,  and  such 
verdict  shall  have  the  same  force  and  effect  as  though  found  and 
returned  by  all  tlie  jurors  sitting  in  said  case;  but  whenever  such 
verdict  is  found  and  returned  by  a  less  number  than  twelve,  said 
verdict  shall  be  signed  by  each  juror  concurring  therein."  The 
plaintiff  in  error  insists  that  the  statute  is  in  violation  of  the  section 
of  the  constitution  above  quoted,  and  this  is  the  only  imporant 
question  presented. 

No  other  of  the  state  constitutions,  so  far  as  we  are  advised, 
contains  precisely  the  same  provision  as  ours,  except  that  of  Colo- 
rado. But  the  general  question  here  involved  has  repeatedly  been 
before  the  courts  of  this  country  for  consideration,  and  certain 
propositions  which  lie  at  the  threshold  of  the  discussion  are  well 
settled.  It  is  conceded  that,  in  almost  all  of  the  states,  the  legisla- 
ture may  lawfully  exercise  not  only  such  powers  as  are  specifically 
enumerated,  but  that  it  is  invested  with  the  entire  legislative  power 
of  the  state  except  as  restrained  by  the  provisions  of  the  constitution. 
And  our  constitution,  in  line  with  most  of  others,  art.  3,  sec.  i, 
provides  that  "the  legislative  power  shall  be  vested  in  a  senate  and 
house  of  representatives,  which  shall  be  designated  'The  legislature 
of  the  state  of  Wyoming.'  "  It  is  also  so  well  settled  as  to  require  no 
reference  to  authorities  that,  when  the  constitution  secures  to  liti- 
gants the  right  of  trial  by  jury,  the  legislature  has  no  power  to  deny 
or  impair  such  right.   The  courts  have  uniformly  held  also  that  the 

"The  statement  of  facts,  arguments  of  counsel  and  part  of  the  opinion 
are  omitted,  as  v/ell  as  the  opinion  denying  a  rehearing. 


340  TKIAT. 

word  "jury"  as  used  in  our  constitutions,  when  not  otherwise  modi- 
fied, means  a  common-law  jury  composed  of  twelve  men,  whose 
verdict  shall  be  unanimous.  As  stated  by  the  Supreme  Court  of 
^Minnesota:  "The  expression  'trial  by  jury'  is  as  old  as  Magna 
Charta,  and  has  obtained  a  definite  historical  meaning  which  is  well 
understood  by  all  English-speaking  peoples ;  and,  for  that  reason, 
no  American  constitution  has  ever  assumed  to  dcfme  it.  V/e  are 
tlierefore  relegated  to  the  history  of  the  common  law  to  ascertain  its 
meaning.  The  essential  and  substantive  attributes  or  elements  of 
jury  trial  are  and  always  have  been  number,  impartiality  and  unan- 
imity. The  jury  must  consist  of  twelve;  they  must  be  impartial  and 
indifferent  between  the  parties;  and  their  verdict  must  be  unan- 
imous." Lommen  v.  Minneapolis  Gaslight  Co.,  65  ]\Iinn.  196.  An 
extended  list  of  the  cases  is  given  in  the  note  to  State  v.  Bates,  14 
Utah  293,  43  L.  R.  A.  48.^^ 

It  is  unquestioned  also  that  at  the  adoption  of  the  constitution 
tlie  right  existed  in  Wyoming  as  at  common  law ;  that  is,  in  felonies 
and  in  all  common  law  cases  in  the  district  court,  our  court  of  gen- 
eral common-law  jurisdiction,  the  right  was  to  an  impartial  jury  of 
tvv-clve  men  and  a  unanimous  verdict.  It  is  also  conceded  that  the 
people  of  the  state  had  the  power  by  their  constitution  to  preserve 
or  abrogate  the  right,  or  make  such  modifications  of  it  and  establish 
such  modes  of  trial  as  might  be  deemed  expedient.  These  general 
propositions  being  settled,  the  question  before  us  is  to  ascertain  to 
what  extent  the  right  of  trial  by  jury  as  above  defined,  is  preserved 
by  the  section  of  tlie  Declaration  of  Rights  above  quoted. 

As  to  the  right  in  criminal  cases,  there  is  no  room  for  construc- 
tion. The  language  is  express  that  it  shall  remain  inviolate ;  that  is, 
that  a  person  charged  with  crime  has  the  right  as  heretofore  to 
demand  a  trial  by  twelve  impartial  men  whose  verdict  must  be 
unanimous  in  order  to  support  a  judgment.  In  civil  cases  the  lan- 
guage is  also  express  as  to  the  matter  of  number,  one  of  the  three 
essentials  of  a  jury  trial  at  common  law,  and  the  legislature  is 
empowered  to  provide  by  law  for  juries  consisting  of  less  than 
twelve.  There  is  no  room  for  construction.  But  there  is  no  specific 
mention  in  the  section  or  anywhere  in  the  constitution  of  the  third 
essential  of  unanimity.   Is  it  then  to  be  deemed  a  matter  unprovided 


*'Y.  B.  41  Edw.  I.,  31;  Y.  B.  41  Ass.  li;  Tredymmock  v.  Ferryman,  Cro. 
Car.  259  (1632);  Work  V.  State,  2  Ohio  St.  296,  59  Am.  Dec.  671  (1853); 
Opinion  of  Justices,  41  N.  H.  550  (i860);  Ptimpton  v.  Sommerset,  33  Vt. 
283  (i860);  Whallon  v.  Bancroft,  4  Minn.  109  (i860);  Vaughn  v.  Scade, 
SO  Mo.  600  (i860)  ;  Recce  v.  Knott,  3  Utah  452,  24  Pac.  757  (1861)  ;  Campan 
V.  Detroit,  14  Mich.  276  (1866);  Whitelmrst  v.  Coleen,  53  111.  247  (1870); 
Lovings  v.  Norfolk  &  IV.  R.  Co.,  47  W.  Va.  582,  35  S.  E.  962  (1900).  And 
see  In  re  Pennsylvania  Hall,  5  Pa.  St.  204^  ClS74)  ;  Stillivcll  v.  Kellog,  14 
\\'is~45iTiB6iT;  Berry  v.  Chamberlain,  53  N.  J.  L.  463,  23  Atl.  115  (1891)  ; 
Skinner  V.  Allison,  127  App.  Div.  15,  in  N.  Y.  S.  264  (1908).  A  verdict 
rendered  by  thirteen  jurors  unless  by  consent  is  erroneous.  Whitehurst  v. 
Davis,  2  Hayw.  (N.  Car.)  113  (1800)  ;  Wolfe  v.  Martin,  i  Flow.  (Miss.)  30 
(1834) ;  McConnick  v.  Brook  field,  4  N.  J.  L.  69  (1818)  ;  Muirhead  v.  Evans, 
6  Exch.  447  (1851)  semble. ;  State  v.  Hndkins,  35  W.  Va.  2.17,  13  S.  E.  367 
(1801);  Contra,  Tillman  v.  Ailles,  5  S.  &  M.  (Miss.)  272)  (1845)-  And  see 
Ross  V.  Ncal,  7  T.  B.  Mon.  (Ky.),  407  (1826). 


FIRST   NAT.    BANK   OF   ROCK   SPRINGS   V.    FOSTER  34I 

for,  a  right  not  preserved,  leaving  the  legislature  at  full  liberty  to 
enact  such  law^s  upon  the  subject  as  it  may  deem  proper,  unrestrained 
by  the  constitution  ?  We  do  not  think  so. 

The  whole  section  must  be  construed  together.  The  subject  of 
it  is  the  right  of  trial  by  jury,  and  we  think  the  intention  of  the 
framers  reasonably  appears  to  have  been  to  preserve  the  right  invio- 
late in  criminal  cases,  and  to  point  out,  by  way  of  permission  to  the 
legislature,  wherein  the  common  law  might  be  invaded  by  statute  in 
civil  cases.  It  is  as  if  the  constitution  had  said :  "With  reference  to 
the  right  of  trial  by  jury,  it  is  provided  that  in  criminal  cases  it  shall 
remain  in  all  respects  as  heretofore.  In  civil  cases  it  shall  remain 
as  heretofore,  except  that  the  legislature  may  provide  for  a  number 
less  than  twelve  to  constitute  a  jury."  There  is  no  other  reasonable 
construction,  for  if  a  rule  is  to  be  applied  that  the  legislature  have 
power  to  enact  any  laws  upon  the  subject  unless  prohibited  in  express 
language,  then  they  may  entirely  abolish  the  right  and  practice  of 
trial  by  jury  in  civil  cases,  for  they  are  not  expressly  prohibited 
from  so  doing.  Yet,  there  appears  nowhere  in  the  constitution  any 
intention  to  abrogate  tlie  right  or  to  substitute  any  other  mode  of 
trial.  But  the  form  of  statement,  when  vievv-ed  in  the  light  of  tlie 
surroundings,  makes  it  manifest  that  the  intention  was  to  preserve 
the  right.  The  provision  in  regard  to  number  is  by  way  of  permis- 
sion, indicating  clearly  that,  in  the  judgment  of  the  framers  of  the 
constitution,  permission  was  necessary.  It  is  also  stated  as  an  excep- 
tion, the  word  "but"  being  used  in  its  very  customary  meaning  of 
"except."  That  it  is  stated  as  an  exception  is  also  shov/n  by  the  use 
of  the  word  "jury"  itself.  It  can  not  be  supposed  that  the  convention 
were  ignorant  of  the  legal  meaning  of  tlie  word,  but  they  must  be 
presumed  to  have  used  it  in  its  correct  legal  sense  of  a  body  of  twelve 
impartial  men  whose  verdict  must  be  unanimous.  And  it  is  evident 
they  did  so  use  it.  It  is  so  used  in  the  first  clause  securing  the  right 
inviolate  in  criminal  cases.  The  provision  that  the  number  may  be 
less  than  twelve  is  clear  evidence  that  the  word  as  used  referred  to 
the  body  universally  known  to  be  composed  of  twelve  men.  It  is 
permission  to  the  legislature  to  make  a  designated  change  in  the 
common  law  jury,  to  reduce  the  common-law  number,  twelve.  It  is 
not  essential  that  a  prohibition  upon  the  legislature  should  be  in 
express  terms.  It  may  be  by  implication.  Page  v.  Allen,  58  Pa.  St. 
345.  It  will  scarcely  be  contended  that  an  act  would  be  valid  provid- 
ing for  the  trial  of  causes  by  a  jury  chosen  by  the  plaintiff,  or  by  the 
party  by  whom  the  jury  was  first  demanded,  thus  disregarding  the 
element  of  impartiality.  Yet  by  the  argument  of  counsel  there  is  no 
prohibition  upon  such  legislation.  And  it  is  indeed  no  more  pro- 
hibited than  a  disregard  of  the  element  of  unanimity  is  prohibited. 
Neither  is  prohibited  except  by  the  use  of  the  word  "jury,"  the 
plainly  implied  provision  for  "trial  by  jury,"  which,  as  matter  of 
definition,  necessarily  involve  and  include  both  impartiality  and 
unanimity  of  verdict.    *    *    * 

In  order  to  sustain  the  constitutionality  of  this  section  of  the 
statute,  it  is  necessary  for  this  court  to  say  that  there  is  no  right  of 
trial  by  jury  in  civil  cases  under  the  constitution  in  this  state,  but 


34-J  TRIAL 

that  each  succeeding  session  of  tlie  legislature  may  invent  and  estab- 
lisii  any  mode  of  trial  that  the  whim  of  the  hour  or  any  supposed 
cxij;oncics  of  convenience  or  economy  might  dictate.  Under  such 
a  ruling  it  would  be  competent  for  the  legislature  to  provide  that 
the  judge  of  the  district  should  call  into  court  the  partisan  board  of 
county  connnissioncrs  and  submit  to  them  for  decision  by  a  majority 
vote  all  civil  causes  pending  in  any  county.  It  is  perfectly  clear  that 
no  such  revolutionary  destruction  of  ancient  landmarks  was  ever  con- 
templated. The  whole  tenor  of  tlie  instrument  makes  it  plain  that  the 
ancient  metliod  of  trial  by  jury  was  not  to  be  abandoned,  but  was  to 
be  retained  and  preserved  except  as  designated  in  the  constitution 
itself,  and  what  the  essentials  of  that  method  are,  is  not  a  matter  of 
construction  or  conjecture.  We  tliink  the  statute  is  clearly  uncon- 
stitutional. 
Reversed. ^^ 


SECTION  2.     THE  JURY. 

(a)  Jury  Process. 
3  Blackstone's  Commentaries  352. 

When  an  issue  is  joined,  by  these  words,  "and  this  the  said  A 
prays  may  be  inquired  of  by  the  country,"  or,  "and  of  this  he  puts 
himself  upon  the  country — and  the  said  B  does  the  like,"  the  court 
awards  a  writ  of  venire  facias  upon  the  roll  or  record,  commanding 
the  sheriff  "that  he  cause  to  come  here,  on  such  a  day,  twelve  free 
and  lawful  men,  lihcros  et  legales  homines,  of  the  body  of  his 
county,  by  whom  the  truth  of  the  matter  may  be  better  known,  and 
who  are  neither  of  kin  to  the  aforesaid  A  nor  the  aforesaid  B,  to 
recognize  the  truth  of  the  issue  between  the  said  parties."  And  such 
writ  was  accordingly  issued  to  the  sheriff. 

Thus  the  cause  stands  ready  for  a  trial  at  the  bar  of  the  court 
itself;  for  all  trials  were  there  anciently  had,  in  actions  which  were 
there  first  commenced;  which  then  never  happened  but  in  matters 
of  weight  and  consequence,  all  trifling  suits  being  ended  in  the  court- 

**Accord :  Denver  v.  Hyatt,  28  Colo.  129,  63  Pac.  403  ( 1900) .  Uhanimity 
is  an  essential  feature  of  a  jur\'  trial  at  common  law.  A  statute  which  de- 
stroys this  feature  abridges  the  right  to  a  jury  trial.  American  Pub.  Co.  v. 
Fisher,  166  U.  S.  464,  41  L.  ed.  1079,  17  Sup.  Ct.  618  (1896)  ;  Kleinschmidt 
V.  Dunphy,  i  Mont.  118  (1869)  ;  Cloud  v.  Morgan,  7  Kans.  App.  213,  52  Pac. 
896  (1898)  ;  May  v.  M.  &  M.  R.  Co.,  3  Wis.  197  (1854).  In  civil  cases  the 
right  to  a  trial  by  a  jury  of  twelve  may  be  v/aived  by  consent.  Roach  v. 
Biakey,  89  Va.  767,  17  S.  E.  228  (1893);  Gillespie  v.  Benson,  18  Cal.  409 
(1861)  ;  Raleigh  &  G.  R.  Co.  v.  Bradshaw,  113  Ga.  862,  39  S.  E.  555  (1901)  ; 
Krunh  v.  Lycojmnjj_E^nA^Co..  77  Pa.  St.  1=^  (1874)  ;  Miller  v.  Cambria  Co., 
25  Pa.  Super.  "Ct.  591  (1^*04)  ;  Kanorowski  v.  People,  113  111  App.  468  T1904)  ; 
TJmfed  States  v.  Ramsey,  158  Fed.  488  (1907)-  Under  the  constitution  of 
Missouri  as  amended,  a  law  authorizing  a  verdict  by  nine  or  more  of  a  jury 
of  twelve  is  valid.  Gabbert  v.  Chicago  R.  I.  &  P.  R.  Co.,  171  Mo.  84,  70  S.  W. 
891  (igo2)  ;  Taussig  v.  St.  Louis  &  K.  R.  Co.,  186  Mo.  296,  85  S.  W.  378 
(1904). 


THE  JURY  343 

baron,  hundred,  or  county  courts :  and  indeed  all  causes  of  great  im- 
portance or  difficulty  are  still  usually  retained  upon  motion,  to  be 
tried  at  the  bar  in  the  superior  courts.  But  when  the  usage  began  to 
bring  actions  of  any  trilling  value  in  the  courts  of  Westminster  Hall, 
it  was  found  to  be  an  intolerable  burden  to  compel  the  parties,  wit- 
nesses and  jurors  to  come  from  Westmoreland  perhaps  or  Cornwall, 
to  try  an  action  of  assault  at  Westminster.  A  practice  therefore  very 
early  obtained,  of  continuing  the  cause  from  term  to  term,  in  the 
court  above,  provided  the  justices  in  eyre  did  not  previously  come 
into  the  county  where  the  cause  of  action  arose ;  and  if  it  happened 
that  they  arrived  there  within  that  interval,  then  the  cause  was 
removed  from  the  jurisdiction  of  the  justices  at  Westminster  to  that 
of  the  justices  in  eyre.  Afterwards,  when  the  justices  in  eyre  were 
superseded  by  the  modern  justices  of  assize  (who  came  twice  or 
thrice  in  the  year  into  the  several  counties,  ad  capiendas  assisas,  to 
take  or  try  writs  of  assize,  of  morf  d'ancestor,  novel  disseisin,  nui- 
sance and  the  like),  a  power  was  superadded  by  statute  Westm.  2, 
13  Edw.  I,  ch.  30,  to  these  justices  of  assize  to  try  common  issues  in 
trespass,  and  other  less  important  suits,  with  direction  to  return 
theni  (when  tried)  into  the  court  above,  where  alone  the  judgm.ent 
should  be  given.  And  as  only  the  trial,  and  not  the  determination, 
of  the  cause,  was  now  intended  to  be  had  in  the  court  below,  tliere- 
fore  the  clause,  of  nisi  priiis  was  left  out  of  the  conditional  contin- 
uances before  mentioned,  and  was  directed  by  the  statute  to  be 
inserted  in  the  writs  of  venire  facias;  that  is,  "that  the  sheriff  should 
cause  the  jurors  to  come  to  Westminster  (or  wherever  the  king's 
court  should  be  held)  on  such  a  day  in  Easter  and  Michaelmas 
terms;  nisi  prius,  unless  before  that  day  the  justices  assigned  to  take 
assizes  shall  come  into  his  said  county."  By  virtue  of  which  the 
sheriff  returned  his  jurors  to  the  court  of  the  justices  of  assize, 
v/hich  was  sure  to  be  held  in  the  vacation  before  Easter  and  Michael- 
mas terms;  and  there  the  trial  was  had. 

An  inconvenience  attended  this  provision:  principally  because, 
as  the  sheriff  made  no  return  of  the  jury  to  the  court  of  Westmin- 
ster, the  parties  were  ignorant  who  tliey  were  till  they  came  upon 
the  trial,  and  therefore  were  not  ready  with  their  challenges  or  ex- 
ceptions. For  this  reason,  by  the  statute,  42  Edw.  Ill,  ch.  11,  the 
method  of  trials  by  nisi  prius  was  altered ;  and  it  was  enacted  that 
no  inquests  (except  of  assize  and  gaol-delivery)  should  be  taken  by 
writ  of  nisi  prius,  till  after  tlie  sheriff  had  returned  the  names  of  the 
jurors  to  the  court  above.  So  that  now  in  almost  every  civil  cause 
the  clause  of  nisi  prius  is  left  out  of  the  writ  of  venire  facias,  which 
is  the  sheriff's  warrant  to  warn  the  jury;  and  is  inserted  in  another 
part  of  the  proceedings,  as  we  shall  see  presently. 

For  now  the  course  is,  to  make  the  sheriff's  venire  returnable 
on  the  last  return  of  the  same  term  wherein  issue  is  joined,  viz., 
Hilary  or  Trinity  terms;  which,  from  the  making  up  of  the  issues 
therein,  are  usually  called  issuable  terms.  And  he  returns  the  names 
of  the  jurors  in  a  panel  (a  little  pane,  or  oblong  piece  of  parchment) 
annexed  to  the  writ.  This  jury  is  not  summoned,  and  therefore,  not 
appearing  at  tlie  day,  must  unavoidably  make  default.    For  which 


3+4  TRIAL 

reason  a  compulsive  process  is  now  awarded  against  the  jurors, 
called  in  the  common  pleas  a  writ  of  lialu^as  corpora  jnratorum, 
and  in  tlic  king's  bench  a  distringas,  commanding  the  sheriff  to  have 
their  bodies  or  to  distrain  them  by  their  lands  and  goods,  that  they 
may  appear  upon  the  day  appointed.  The  entry  therefore  on  the  roll 
or  record  is,  "that  the  jury  is  respited,  through  defect  of  the  jurors, 
till  the  first  day  of  the  next  term,  then  to  appear  at  W'cstminstcr, 
unless  before  that  time,  viz.,  on  Wednesday  the  fourth  of  March, 
the  justices  of  our  lord  the  king,  appointed  to  take  assizes  in  that 
county,  shall  have  come  to  Oxford,  that  is,  to  the  place  assigned  for 
holding  the  assizes."  And  thereupon  the  writ  commands  tlie  sheriff 
to  have  their  bodies  at  Westminster  on  the  said  first  day  of  next 
term,  or  before  the  said  justices  of  assize,  if  before  that  time  they 
come  to  Oxford;  viz.,  on  the  fourth  of  Alarch  aforesaid.  And,  as 
the  judges  are  sure  to  come  and  open  the  circuit  commissions  on  the 
day  mentioned  in  the  writ,  the  slieriff  returns  and  summons  the  jury 
to  appear  at  the  assizes,  and  there  the  trial  is  had  before  the  justices 
of  assize  and  nisi  prius:  amon^  Avhom  (as  hath  been  said)  are 
usually  two  of  the  judges  of  the  courts  of  Westminster,  the  whole 
kingdom  being  divided  into  six  circuits  for  this  purpose.  And  tlius 
we  may  observe  that  the  trial  of  common  issues,  at  nisi  prius,  which 
was  in  its  original  only  a  collateral  incident  to  the  original  business 
of  the  justices  of  assize,  is  now,  by  the  various  revolutions  of  prac- 
tice, become  their  principal  civil  employment:  hardly  any  thing 
remaining  in  use  of  the  real  assizes  but  the  name. 

If  the  sheriff  be  not  an  indifferent  person ;  as  if  he  be  a  party  in 
tlie  suit,  or  be  related  by  either  blood  or  affinity  to  either  of  the 
parties,  he  is  not  tlien  trusted  to  return  the  jury,  but  the  venire 
shall  be  directed  to  the  coroners,  who  in  this,  as  in  many  other  in- 
stances, are  the  substitutes  of  the  sheriff',  to  execute  process  when 
he  is  deemed  an  improper  person.  If  any  exception  lies  to  the 
coroners,  the  venire  shall  be  directed  to  two  clerks  of  the  court,  or 
two  persons  of  the  county  named  by  the  court,  and  sworn.  And  these 
two,  who  are  called  elisors,  or  electors,  shall  indifferently  name  the 
jury,  and  their  return  is  final;  no  challenge  being  allowed  to  their 
array.^® 


"See  also  Bacon's  Abridgement,  tit.  Juries.  In  England  the  ancient 
method  of  selecting  and  summoning  jurors  has  been  superseded  by  modern 
acts  which  confide  the  preparation  of  the  jury  Hst  to  designated  officials. 
Jurors  are  summoned  by  the  sheriff  in  obedience  to  precepts  directed  to 
him  issued  by  the  judges  or  other  officials  charged  with  that  duty.  See  8 
Halsbury's  Laws  226.  In  America  common  law  writs  for  procuring  the  attend- 
ance of  jurors  have  long  since  fallen  into  disuse  and  the  procedure  is  largely 
statutory-.  24  Cyc.  222,  12  Enc.  PI.  &  Pr.  318.  "Our  system  of  summoning 
jurors  bears  little  resemblance  to  that  practiced  under  the  common  law.    In 


Maine,  New  Hampshire,  Vermont,  Massachusetts,  Pennsylv^mia^  and  \V 
Virginia,  a  writ  of  venire  facias,  expressly  so  calle3,  issues  by  order  of  the 
court  before  each  drawing,  but  this  is  the  only  process.  In  all  other  states 
it  is  believed  that  the  drawing  takes  place  as  a  matter  of  course  upon  a 
certain  date,  and  the  venire  issues  only  after  the  drawing  is  finished  and  the 
list  of  jurors  ready  to  be  summoned.  Some  states  continue  to  designate  this 
process  as  a  venire;  in  others  it  is  known  as  an  "order,"  "precept,"  "sum- 
mons" or  simply  "process."    In  many  of  the  statutes  no  mention  is  m.ade  of 


JONES   V.    WOODWARTH  345 

(b)  Challenges. 

3  Blackstone's  Commentaries  363. 

Jurors  may  be  challenged  propter  affectum  for  suspicion  of  bias 
or  partiality.  This  may  be  either  a  principal  challenge,  or  to  the 
favor.  A  principal  challenge  is  such  where  the  cause  assigned  carries 
with  it  prima  facie  evident  marks  of  suspicion  either  of  malice  or 
favor;  as,  that  a  juror  is  of  kin  to  either  party  within  the  ninth 
degree ;  that  he  has  been  arbitrator  on  either  side ;  that  he  has  an 
interest  in  the  cause ;  that  there  is  an  action  depending  between  him 
and  the  party ;  that  he  has  taken  money  for  his  verdict ;  that  he  has 
formerly  been  a  juror  in  the  same  cause;  that  he  is  the  party's 
master,  servant,  counsellor,  steward  or  attorney,  or  of  the  same 
society  or  corporation  with  him;  all  these  are  principal  causes  of 
challenge,  which,  if  true,  can  not  be  overruled,  for  jurors  must  be 
omni  exceptions  majores.  Challenges  to  the  favor  are  w^iere  the 
party  hath  no  principal  challenge,  but  objects  only  to  some  probable 
circumstances  of  suspicion,  as  acquaintance  and  the  like ;  tlie  validity 
of  which  must  be  left  to  the  determination  of  triers,  whose  office  is 
to  decide  whether  the  juror  be  favorable  or  unfavorable.  The  triers, 
in  case  the  first  man  called  be  challenged,  are  two  indifferent  persons 
named  by  the  court ;  and  if  they  try  one  man  and  find  him  indifferent, 
he  shall  be  sworn ;  and  then  he  and  the  two  triers  shall  try  the  next ; 
and  when  another  is  found  indifferent  and  sworn,  the  two  triers 
shall  be  superseded,  and  the  two  first  sworn  on  the  jury  shall  try  tlie 
rest.2" 


X.       JONES  V.  WOODWARTH.  ^      -       ^  , 

Supreme  Court  of  South  Dakota,  1910.  '  .  ^ 

24  S.  Dak.  583. 

Corson,  J. :  This  is  an  appeal  by  the  defendant  from  a  judgment 
rendered  in  favor  of  the  plaintiff,  and  from  the  order  denying  a  new 
trial.    The  action  was  instituted  by  the  plaintiff  to  recover  of  the 

the  process.  When  the  drawing  is  conduded,  the  clerk  makes  a  copy  of  the 
names  of  the  jurors  drawn,  which  he  delivers  to  the  sheriff,  which  per  se 
constitutes  the  order  and  authority  to  the  sheriff  to  summon."  Thompson  and 
Merriam  on  Juries,  §  69  (1882). 

^Brooke's  Abridgment,  "Challenge";  Coke  on  Littleton,  155b,  ef  seq.; 
34  Lib.  Ass.  6;  Berry  v.  Wallen,  i  Overt.  (Tenn.)  186  (1804)  ;  McCormick  v. 
Brook  field,  4  N.  J.  L.  69  (1818)  ;  Mechanics  &  F.  B.  v.  Smith,  19  Johns.  (N. 
Y.)  115  (1821)  ;  People  v.  Reyes,  5  Cal.  347  (1855)  ;  Flemming  v.  State,  11 
Ind.  234  (1858). 

"Challenges  to  the  array  are  at  once  an  exception  to  the  whole  panel, 
in  which  the  jury  are  arrayed  or  set  in  order  by  the  sheriff  in  his  return; 
and  they  may  be  made  on  account  of  partiality  or  some  default  in  the  sheriff 
or  his  undcr-officer  who  arrayed  the  panel."  Ill  Bl.  Comm.  358.  "Challenges 
to  the  polls,  in  capita,  are  exceptions  to  particular  jurors,  and  seem  to  answer 
the  rescusatio  judicis  in  the  civil  and  cannon  laws.  .  .  .  Challenges  to  the 
polls  of  the  jury  (who  are  judges  of  fact)  are  reduced  to  four  heads  by  Sir 
Edward  Coke:  Propter  honoris  respectum;  propter  defectum;  proper 
affectum;  and  propter  delictum."   Ill  Bl.  Comm.  361 ;  I  Co.  Lit.  156. 


346  TRIAL 

defendant  dcimng[cs  for  an  alleged  breach  of  a  contract  entered  into 
by  the  dcicndant  with  the  plaintiff  for  the  purchase  of  100  head  of 
steers,  which  the  defendant  refused  to  accept.'^ 

It  is  disclosed  by  the  record  that  upon  tlie  case  being  called  for 
trial,  and  before  the  drawing  of  the  trial  jury,  the  defendant  inter- 
posed a  challenge  to  the  array  of  jurors  sumnioncd  and  returned  to 
try  said  cause,  supported  by  affidavit,  on  the  ground  tliat  the  plain- 
tiff in  the  said  action  was  the  sheriff  of  said  county  at  the  time  of  the 
drawing  of  the  jury  for  said  term  of  court,  and  participated  in  the 
drawing  of  the  same,  and  that  he,  as  such  sheriff,  summoned  and 
caused  to  be  summoned  said  jury.  This  challenge  was  denied  by  the 
court,  and  the  defendant  duly  excei)tcd.  Thereupon  a  jury  was 
called  to  the  box  for  examination,  and  the  defendant  interposed  a 
challenge  to  the  array  on  the  same  grounds  previously  interposed  to 
the  panel.  This  challenge  was  also  denied,  and  the  defendant  ex- 
cepted. Thereupon  the  jury  was  examined  as  to  their  qualifications, 
and  the  defendant,  after  having  exhausted  his  challenges,  renewed 
his  challenge  to  the  array.  This  challenge  w^as  also  denied,  and  the 
defendant  excepted.  It  is  assigned  as  error,  among  others,  that  the 
court  erred  in  denying  these  challenges,  and  it  is  contended  on  the 
part  of  the  appellant  that  for  this  error  the  case  should  be  reversed. 

It  is  contended  by  the  respondent  in  support  of  the  ruling  of  the 
trial  judge  that  in  civil  cases  a  challenge  to  the  panel  or  to  the  array 
is  not  provided  for — the  only  challenge  allowed  being  the  challenge 
to  individual  jurors — and  hence  that  the  trial  court  was  right  in 
denying  appellant's  challenges.  The  law  in  relation  to  the  formation 
of  the  trial  jury  in  a  civil  case  is  provided  for  by  section  249  of  the 
Code  of  Civil  Procedure,  and  following  sections:  By  section  251  is 
provided:  "Either  party  may  challenge  the  jurors."  By  section  252, 
as  amended  by  chapter  171,  Laws  1903,  the  grounds  of  the  challenge 
are  specified.  It  wall  be  noticed  by  an  examination  of  these  sections 
of  the  Code  of  Civil  Procedure  that  no  provision  is  made  for  a  chal- 
lenge to  the  panel  or  to  the  array.  The  learned  counsel  for  the 
respondent  calls  our  attention  to  section  3  of  the  Code  of  Civil  Pro- 
cedure, which  provides,  "The  code  establishes  the  law  of  this  state 
respecting  the  subjects  to  which  it  relates,  *  *  *"  and  also  to 
section  9,  which  provides,  "*  *  *  But  in  all  cases  provided  for 
by  this  code,  all  statutes,  laws  and  rules  heretofore  in  force  in  this 
state,  whether  consistent  or  not  wuth  the  provisions  of  this  code, 
unless  expressly  continued  in  force  by  it,  are  repealed  and  abro- 
gated *  *  *";  and  insists  that  under  these  provisions  of  the  Code 
of  Civil  Procedure  no  challenge  to  the  panel  or  array  can  be  allowed 
in  a  civil  action,  as  no  provisions  have  been  made  in  the  Code  of 
Civil  Procedure  authorizing  such  a  challenge  to  the  panel  or  array. 
Prior  to  the  adoption  of  the  Revised  Codes  of  1903,  there  would 
have  been  great  force  in  the  contention  of  the  respondent,  but  by 
that  revision  an  important  change  was  made  in  respect  to  the  com- 
mon lav/  being  in  force  in  this  state.  Prior  to  the  revision  of  1903 


**Parts  of  the  opinion  of  the  court  an^l  the  concurring  opinion  of  McCoy, 
J.,  in  which  Whiting,  P.  J.,  joined  are  omitted.    Haney,  J.,  dissented. 


JONES   V.    WOODWARTH  347 

'by  section  2505,  Comp.  Laws,  it  is  provided,  "In  this  state  there  is 
no  common  law  in  any  case  where  the  law  is  declared  by  the  codes," 
but  by  the  revision  of  1903  section  6  of  the  Civil  Code  was  substi- 
tuted for  tliis  section,  which  reads  as  follow:  "In  this  state  the 
common  law  is  in  force  except  w^iere  it  conflicts  with  the  codes  or 
the  constitution."  It  will  be  noticed  that  the  language  of  this  section 
is  broad  and  comprehensive,  and  that  it  applies  to  all  the  codes,  and 
that  now  "the  common  law  is  in  force  in  this  state  except  where  it 
conflicts  wdth  the  codes  or  the  constitution."  It  will  also  be  noticed 
that  the  word  "codes"  is  used  in  the  plural. 

It  seems  to  be  the  settled  practice  at  common  law  to  allow  chal- 
lenges to  tlie  panel  or  array,  both  in  civil  and  criminal  cases. 
3  Blackstone  by  Cooley  359;  17  A.  &  E.  Encyc.  of  Law  iiii;  24 
Cyc.  328;  Cowgillv.  Wooden,  2  Blackf.  (Ind.)  332;  Woods  v.  Rozv- 
man,  5  Johns.  (N.  Y.)  133;  GoUohitsch  v.  Rainbow,  84  Iowa  567; 
Mvjskov'"'-  ^'  Pnttnn^  TO  S erg.  8c  R.  (F2i^  334;  j^O^U.V  V.  Wells, 
4Yeates  (Pa.)  43 ;  Ullman  v.  State,  124  Wis.  602 ;  People  v.  Fellows, 
122  Cal.  22>3;  iVliite  v.  State,  45  Tex.  Cr.  597.  The  Code  of  Civil 
Procedure  having  made  no  provision  for  a  challenge  to  the  array 
or  panel,  and  there  being  no  provision  in  the  constitution  in  conflict 
with  the  common  law  upon  this  subject,  it  would  seem  quite  clear 
that  under  the  law  as  it  now  exists  the  rule  of  the  common  law 
authorizing  such  a  challenge  to  the  panel  or  array  should  be  allowed, 
notwithstanding  the  provisions  of  the  Code  of  Civil  Procedure 
which  have  been  heretofore  quoted.  The  Code  of  Civil  Procedure 
having  provided  for  challenges  to  individual  jurors,  those  provisions 
of  the  code  supersede  the  common  law,  but,  the  Code  of  Civil  Pro- 
cedure not  having  provided  in  any  manner  for  the  challenge  to  the 
panel  or  the  array  in  civil  cases,  the  common  law  applicable  to  such 
challenge  remains  in  force,  and  the  court  therefore  erred  in  denying 
the  challenge  to  the  array  or  the  panel,  as  the  facts  stated  in  the 
affidavit  of  the  clerk  as  to  the  participation  of  the  sheriff  in  the 
drawing  and  summoning  of  the  jury  at  that  term  is  undisputed. 

It  is  provided  in  section  716,  Pol.  Code,  that:  "In  case  tlie  sheriff 
shall  be  disqualified  by  reason  of  being  a  party  to  any  suit  pending  in 
said  circuit  court,  or  suspension  from  office,  the  coroner  shall  serve 
wath  the  said  officers  in  place  of  the  sheriff,"  and  by  section  717  it  is 
provided  specifically  the  manner  in  which  the  jury  shall  be  drawn  by 
the  officers  designated.  In  our  opinion  these  provisions  in  regard  to 
the  drawing  of  the  jury  are  mandatory,  and  it  must  be  presumed, 
we  think,  that  the  sheriff  knew  that,  as  a  party  to  the  action  to  be 
tried  at  that  term,  he  was  disqualified  from  participating  in  any 
manner  in  the  drawing  or  summoning  of  the  jury.  In  such  case  it 
was  the  duty  of  the  sheriff  to  notify  the  other  members  of  the  board 
designated  to  draw  the  jury  that  he  was  disqualified  andthat  tlie 
coroner  should  be  called  in  to  act  in  his  place.  While  no  improper 
motive  may  have  actuated  the  plaintiff  in  failing  to  so  witlidraw 
from  the  board,  still  it  is  the  design  of  the  law  to  remove  all  tempta- 
tion from  the  officer  so  situated  in  using  any  improper  influence  by 


348  TRIAL 

participating  in  the  drawing  of  the  jury  and  to  carry  into  full  effect 
tlic  intention  of  the  provisions  of  the  constitution  (sec.  6,  art.  6) 
which  provides:  "The  ris^ht  of  trial  by  jury  shall  remain  inviolate." 
Foruia  v.  P racer,  140  Mich.  631  ;  Covington  Bridge  Co.  v.  Smith, 
118  Ky.  74;  -S\  Cov.  Ry.  v.  SchiUing  (Ky.)>  ^o  S.  W.  510;  Drogdcn 
V.  State.  47  Tex.  Cr.  121 ;  State  v.  Austin,  183  ]\Io.  478,  In  the  case 
of  Fornia  v.  Fracer,  supra,  the  learned  Su[)rcme  Court  of  JNIichigan, 
in  discussing  a  similar  question,  says :  "The  statute  leaves  no  discre- 
tion as  to  the  officer  who  shall  perform  the  act  of  drawing  the  jury. 
The  clerk,  and  no  other  officer,  must  draw  the  names  from  the  box. 
This  court  in  People  v.  Labadic,  66  ]\Iich.  702,  *  *  *  said :  'The 
statutes  which  establish  the  rule  for  the  drawing  of  jurors  leave  no 
discretion  in  the  officers  designated  to  conduct  such  drawing  but 
plainly  indicate  how  the  proceedings  shall  be  conducted.'  " 

The  summoning  of  the  jury  by  the  sheriff  was  equally  irregular 
and  in  violation  of  the  common  law,  as  was  his  participation  in  the 
drawing  of  the  same.  To  permit  the  sheriff  under  such  circum- 
stances to  summon  the  jury  where  he  is  a  party  to  an  action  to  be 
tried  by  tliem  affords  him  opportunity  to  exercise  an  improper  in- 
fluence over  them.  Woods  v.  Rozvan,  5  Johns.  (N.  Y.)  133  ;  Leqaux^ 
V.  Wells,  4  Yeates^{^Pa.)  43;  Cozvgill  v.  Wooden,  2  I31ackf.  (Ind.) 
332;  Gollobitsch  V.  Rainbozu,  8z|  Iowa  567;  Munshower  v.  Patton, 
loSerg.  &.  R.  (Pa.)  334.  In  tlie  case  of  JVoods  v.  Rowan,  supra, 
the  Supreme~CouTt  of  Judicature  for  the  state  of  New  York,  in  dis- 
cussing this  question,  says:  "The  reason  given  for  not  permitting 
the  sheriff  to  summon  a  jury,  in  his  own  cause  is  because  he  is  not 
to  be  trusted  to  return  the  jury  (3  Bl.  Comm.  354)  ;  and  so  scrupu- 
lous is  the  law  on  this  subject  that  it  is  a  good  reason  for  quashing 
the  array  when  made  by  a  person  or  officer  of  whose  partiality  there 
is  any  reasonable  ground  of  suspicion.  3  Bl.  Comm.  59.  Under  our 
act,  the  opportunity  offered  the  sheriff  of  selecting  the  jury  is  much 
more  circumscribed  than  it  was  before;  but  to  a  certain  extent  he 
has  still  the  power  of  choosing  the  triors  of  the  cause.  He  has  an 
advantage  which  the  other  party  has  not,  and  hov.'ever  remote  or 
unimportant  that  advantage  may  be,  if  it  exists  at  all,  the  law  does 
not  allow  him  an  opportunity  of  availing  himself  of  it.  It  is  for  this 
reason,  among  others,  that  the  sheriff  is  not  competent  to  summon 
a  jury  in  the  great  variety  of  cases  mentioned  by  Lord  Coke.  Co. 
Litt.  156a,  It  is  true  that  the  sheriff  no  longer  selects  the  whole 
panel,  and  that  it  now  is  his  duty  to  summon  all  such  persons  as 
shall  have  been  previously  balloted  by  the  clerk;  and  hence  it  is 
argued  that  the  challenge  to  the  array  in  this  case  was  properly  over- 
ruled. I  can  not  accede  to  this  conclusion.  The  sheriff  certainly  may 
select  such  of  them  as  he  may  suppose  will  best  subserve  his  pur- 
pose, and  by  summoning  them,  and  omitting  to  summon  the  rest, 
he  may  in  many  cases  as  effectually  pack  a  jury  as  if  he  had  the 
pov/er  of  selecting  the  whole  panel.  The  impartial  and  equal  admin- 
istration of  justice  renders  it  dangerous  to  trust  the  sheriff  with 
such  a  power.  It  is  no  answer  to  this  objection  to  say  that  it  is  not 
to  be  presumed  the  sheriff  will  prostitute  his  office  to  such  purposes. 
It  is  because  he  may  do  it  that  the  law  interposes ;  and,  if  he  may. 


DOWNEY   v.    FINUCANE  349 

that  is  decisive  of  the  question.  I  have  taken  some  pains  to  ascertain 
whether  in  England  it  has  ever  been  considered  that  it  was  not  a 
good  ground  of  challenge  to  the  array  where  the  sheriff  has  sum- 
moned a  special  jury;  he  being  a  party  or  otherwise  disqualified. 
As  far  as  my  researches  have  extended,  I  do  not  discover  that  there 
is  any  distinction.  The  rule  appears  to  be  universal ;  and  yet,  where 
a  special  jury  is  to  try  the  cause,  the  sheriff  has  no  more  power  of 
selecting  the  jury  than  he  has  under  our  statute.  I  am  satisfied  that 
it  is  safest  to  adhere  to  the  rule  as  we  find  it  settled,  a  rule  wisely 
introduced  for  the  purpose  of  guarding  against  partiality  and  cor- 
ruption in  trials  by  jury.  The  court  are  of  the  opinion  that  the 
challenge  to  the  array  upon  the  trial  ought  to  have  been  allowed; 
and  that  there  must,  therefore,  be  a  new  trial  witli  costs  to  abide  the 
event  of  the  suit."  This  opinion,  delivered  over  a  century  ago,  so 
clearly  and  so  fully  states  the  law  applicable  to  the  case  at  bar  that 
we  do  not  deem  a  further  discussion  of  the  question  necessary.  For 
the  error  committed  by  the  court  in  denying  the  challenge  to  the 
array  of  the  jury,  the  judgment  of  the  court  below  must  be  reversed.^^ 
Judgment  reversed.     Haney,  J.,  dissents. 


^ 


FRANK  H.  DOWNEY  v.  THOMAS  W.  FINUCANE. 
Court  of  Appeals  of  New  York,  191 2. 

205  A^.  Y.  251. 


WiLLARD  Bartlett,  J. :  This  is  a  civil  action  to  recover  damages 
for  fraud  and  deceit.^^ 

The  basis  of  the  action  is  tlie  alleged  falsity  of  a  prospectus  pub- 
lished to  promote  the  sale  of  the  securities  of  the  United  States 
Independent  Telephone  Company.  This  prospectus  was  not  pre- 
pared or  signed  by  any  of  the  appellants.  The  sole  signature  to  the 
prospectus  is  that  of  Albert  O.  Fenn,  care  AlHance  Bank,  Rochester, 


'^"The  challenge  to  the  array  must  be  certain  and  specific,  3  Burr.  140; 
and  is  an  objection  to  all  the  jurors  returned  by  the  sheriff,  collectively,  3 
Bl.  Comm.  358;  Co.  Litt.  156,  158;  and  is  founded  on  some  partiality  or 
default  in  the  sheriff  or  his  under-officer,  or  the  clerk  who  arrayed  the  panel, 
3  BI.  Comm.  359;  i  Archb.  Pr.  204."  Conkey  v.  Northern  Bank,  6  Wis.  447 
(1858)  ;  Gardner  v.  Turner,  9  Johns.  (N.  Y.)  260  (1812)  ;  Pringle  v.  Huse, 
I  Cow.  (N.  Y.)  432  (1823)  ;  Munshower  v_^Pattxm,  10  S.  &  R.  (Pa.)  334,  13 
Am.  Dec.  678  (1823)  ;  Quinebang  Bank  v.  Tarbox,  20  Conn.  510  (1850) ;  Clin- 
ton V.  Englebrecht,  13  Wall.  (U.  S.)  434.  20  L.  ed.  659  (1871)  ;  St.  Louis  &  S. 
E.  R.  Co.  v.  Wheelis,  72  111.  538  (1874)  ;  United  States  v.  Loughery,  Fed.  Cas. 
No.  15631,  13  Blatch.  (U.  S.)  267  (1876)  ;  Commonwealth  v.  Walsh,  124  Mass. 
32  (1878)  ;  Boyer  v.  Tcaaue,  106  N.  Car.  576,  11  S.  E.  665,  19  Am.  St.  547 
(1890)  ;  Riley  v.  Chicago,  M.  &  St.  P.  R.  Co.,  67  Minn._i63,  69  N.  W.  718 
(1897)  ;  such  a  challenge  must  be  made  promptly.  Brunskill  v.  Giles,  9  Eingh. 
13  (1832)  ;  Clears  v.- Stanley,  34  111.  App.  338  (1889)  ;  Klemmer  v.  Mount  Penn. 
G_JR  Cp  t6^  Pa.  St.  q2ij  30  Atl.  274  (1894)  ;  Wallace  v.  Jameson,  itq  Pa.  5t. 
98736  Atl.  142  ( 1897)  ;  Evansville  &  S.  I.  Tr.  Co.v.  Joluison  (Ind.  App.),  97 
N.  E.  176  (1912). 

^^Only  so  much  of  the  opinion  as  relates  to  the  right  to  challenge  is 
printed. 


350  TRIAL 

N.  Y.  The  plaintiff's  right  to  recover,  therefore,  rests  upon  the 
agency  of  Fonn  to  act  In  their  behalf  in  endeavoring  to  procure  sub- 
scriptions by  means  of  tlie  prospectus. 

The  appellants,  however,  contend  that  Fenn,  instead  of  acting 
for  the  individual  members  of  the  syndicate,  was  solely  the  agent 
of  the  United  States  Independent  Telephone  Company,  and  this  be- 
ing so  that  they  can  not  be  held  liable  for  his  fraudulent  misrepre- 
sentations inasmuch  as  they  were  merely  directors  of  that  corpora- 
tion. 

The  five  defendants  claimed  to  be  entitled  to  six  peremptory 
challenges  each,  but  the  court  allowed  only  six  peremptory  chal- 
lenges in  all,  treating  the  defendants  collectively  as  but  one  party, 
within  tlie  meaning  of  section  1176  of  the  Code  of  Civil  Procedure, 
which  provides  that  upon  a  trial  of  an  issue  of  fact  joined  in  a  civil 
action  in  a  court  of  record  each  party  may  peremptorily  challenge 
not  more  than  six.-*  The  question  docs  not  appear  to  have  been  con- 
sidered in  any  reported  case  in  this  state.  Numerous  authorities 
from  other  states  are  cited  in  the  briefs  of  counsel,  but  they  are  only 
relevant  where  statutes  exist  similar  in  phraseology  to  our  own,  that 
is  to  say,  where  a  given  number  of  peremptory  challenges  is  allowed 
to  each  part}\  Such  is  the  statute  in  Illinois  in  force  since  the  year 
1827,  and  "during  that  time  it  has  been  general  practice  and  so 
understood  by  tlie  entire  profession  that  each  side  to  the  case  with- 
out reference  to  the  number  of  persons  in  each  in  all  civil  cases  have 
but  three  peremptory  challenges."  Schmidt  v.  C.  &  N.  W.  R.  Co., 
83  111.  405.  The  appellants  rely  upon  Himdhaitsen  v.  Atkins,  36  Wis. 
518,  where  the  court  was  called  upon  to  construe  a  statute  regulat- 
ing peremptory  challenges  which  provided  that  in  civil  causes  each 
party  should  be  entitled  to  three.  The  defendants  had  appeared  by 
different  attorneys  and  severed  their  defenses,  and  the  court  held 
that  inasmuch  as  their  defenses  were  essentially  different  and  each 
had  a  distinct  issue  to  maintain,  each  w-as  to  be  considered  a  party 
witliin  the  meaning  of  the  statute.  The  court,  however,  added  this 
qualification:  "Undoubtedly  when  several  defendants  in  a  civil 
action  join  in  their  defense,  or  severing  in  tlieir  answers  set  out  but 
one  defense  common  to  them  all,  they  constitute  one  party  limited 
to  the  statutory  number  of  challenges  given  to  a  party  as  ruled  in 
this  case  in  the  court  below.  In  such  a  case  they  might  and  perhaps 
ought  to  join  in  one  answer  setting  up  a  common  defense;  and  they 
should  not  be  permitted  to  gain  additional  challenges  by  the  mere  act 
of  severing  in  their  pleadings,.  They  have  a  community  of  interests 
and  should  be  left  to  a  community  of  challenges."   Such  is  the  case 


**In  England  peremptory  challenges  without  cause  exist  only,  as  a  matter 
of  ripht,  in  cases  of  treason  and  felony.  18  Halsbury's  Laws,  249.  If  allowed 
in  civil  cases  it  is  as  a  matter  of  curtesy.  Creed  v.  Fisher,  9  Exch.  472  (1854). 
In  the  United  States,  a  limited  number  of  peremptory  challenges  are  gen- 
erally authorized  by  statute  in  civil  as  well  as  criminal  cases,  but  the  right 
is  purely  statutory.  Gordon  v.  Chicago,  20X  111.  623,  66  N.  E.  823  (1903)  ;  12 
Ency.  PI.  &  Pr.  475 ;  O'Neil  v.  Lake  Superior  Co.,  67  Mich.  560,  35  N.  W.  162 
(1887)  ;  Bruce  v.  Beall,  100  Tenn.  573,  47  S.  W.  204  (1898)  ;  Stevens  v.  Union 
R.  Co.,  26  R.  I.  90,  58  Atl.  492,  66  L.  R.  A.  465  (1904). 


TEGARDEN    V.    PHILLIPS  35 1 

here.  The  defendants  had  a  common  interest;  their  answers  were 
substantially  identical;  and  the  defense  was  conducted  in  the  com- 
mon interest  of  all.  Under  the  circumstances,  whatever  might  be 
the  rule  if  different  defenses,  possibly  antagonistic  to  one  another, 
had  been  interposed,  the  defendants  were  properly  treated  as  only  one 
party  within  the  meaning  of  section  1176  of  the  code. 
The  judgment  should  be  affirmed,  with  costs.^^ 


V   TEGARDEN  v.  PHILLIPS. 

Appellate  Court  of  Indiana,  1895. 
14  Ind.  App.  27."' 

LoTZ,  J. :  The  appellant,  George  W.  Tegarden,  as  administrator 
de  bonis  non  of  the  estate  of  John  Phillips,  deceased,  brought  this 
action  against  the  appellee,  Thomas  L.  Phillips,  to  recover  the  sum 
of  $3,000,  alleged  to  be  due  and  owing  from  the  latter  to  the  estate. 
After  issue  joined,  there  was  a  trial  by  jury,  and  a  verdict  returned 
for  the  appellee,  upon  which  the  court,  after  overruling  appellant's 
motion  for  a  new  trial,  rendered  judgment.  The  appellee  was  a  son 
and  heir  at  law  of  appellant's  decedent.  The  only  error  assigned  is 
the  overruling  of  the  motion  for  a  new  trial.  One  of  the  causes  for 
a  new  trial  v/as  the  alleged  incompetency  of  one  of  the  jurors, 
Thonias  J.  Grigsby.  It  appears  from  the  affidavits  filed  in  support 
of  this  cause  that  the  juror,  on  his  voir  dire,  was  asked  whether  or 
not  he  was  related  by  blood  or  marriage  to  either  of  the  parties  to 
tlie  action,  and  that  in  answer  to  such  question  the  juror  stated  that 
he  was  not.  It  is  also  made  to  appear  that  this  juror's  wife  and  the 
appellee's  wife  are  related  by  consanguinity  within  the  fifth  degree, 
the  juror's  wife  and  the  appellee's  wife's  mother  having  been  first 
cousins.  It  is  also  shown  by  the  affidavits  of  the  appellant  and  his, 
counsel  that  they  had  no  knowledge  of  such  relationship  when  they 
juror  was  accepted.  ( 

^'Accord:  Sodoiisky  v.  McGee,  4  J.  J.  Marsh.  (Ky.)  267  (1830)  ;  Bihh  v. 
Reid,  3  Ala.  88  (1841)  ;  Snodgrass  v.  Hunt,  15  Ind.  274  (i860);  Stone  v. 
Segur,  93  Mass.  568  (1866);  Bryan  v.  Harrison,  76  N.  Car.  360  (1877); 
McClay  v.  Worrall,  18  Nebr.  44,  24  N.  W.  429  (1885);  United  States  v. 
Alexander,  2  Idaho  354  (1888)  ;  Hargrove  v.  Vaughn,  S2  Tex.  347,  18  S.  W. 
695  (1891);  Illinois,  lozva  and  Minnesota  R.  Co.  v.  Freeman,  210  111.  270 
(1904)  ;  Waters-Pierce  Oil  Co.  v.  Bitrrozi-s,  77  Ark.  74  (1905)  ;  Clark  v.  St. 
L.  &  S.  R.  Co.,  234  Mo.  396,  137  S.  W.  583  (1911)  ;  Galveston  H.  &  S.  A.  R. 
Co.  V.  Saunders,  (Tex.  Civ.  App.)  141  S.  W.  829  (1911)  ;  Schwing  v.  Dimlap, 
130  La.  498,  58  So.  162  (1912)  ;  Crandall  v.  Pnget  Sound  Tract.  &c.  Co., 
77  Wash.  37,  137  Pac.  319  (1913).  Compare  Stroke  v.  Henchman,  2,7  Mich.  490 
(1877)  ;  Mutual  Life  Ins.  Co.  v.  Hillmon,  14s  U.  S.  285,  36  L.  ed.  706,  12  Sup 
Ct.  909  (1891)  ;  Texas  &  P.  R.  Co.  v.  Stell,  (Tex.)  61  S.  W.  980  (1901)  ;  Wag- 
goner V.  Dodson,  96  Tex.  6,  68  S.  W.  813,  69  S.  W.  993  (1904)  ;  Cornell-An- 
drew Smelting  Co.  v.  Boston  &  P.  R.  Co.,  202  Mass.  585,  89  N.  E.  118  (1900)  • 
Hannay  v.  Harmon,  (Tex.  Civ.  App.)   137  S.  W.  406  (1911). 

V  N.  E.  549  on  rehearing  of  39  N.  E.  212.   A  part  only  of  the  opinion. 
IS   given. 


o5-  TRIAL 

At  coniniCMi  law,  relationship  by  consanguinity  or  affinity  within 
the  ninth  degree,  computed  according  to  the  rules  of  the  civil  law,  is 
good  grounds  for  challenge.-^  And  it  seems  that  this  relationship 
could  not  be  waived.  Oakley  v.  .Ispimvcll,  3  N.  Y.  550;  Edzvards  v. 
Russell,  21  Wend.  (N.  Y.)  63.  These  rules  have  been  changed  in  this 
state  by  statute.  The  fact  that  a  juror  is  related  to  one  of  the  parties 
within  the  inhibited  degrees  does  not  absolutely  disqualify  him  from 
serving.  The  eleventh  subdivision  of  section  240,  Rev.  Stat.  1894 
(sec.  240,  Rev.  Stat.  1881),  provides  that  "when  a  person  is  required 
to  be  distinterested  or  indifferent  in  acting  on  any  question  or  matter 
affecting  other  parties,  consanguinity  or  affinity  within  the  sixth 
degree  inclusive  by  tlie  civil  law  rules,  or  within  the  degree  of  sec- 
ond cousin  inclusive,  shall  be  deemed  to  disqualify  such  person  from 
acting  except  by  consent  of  the  parties."  It  has  been  held  that  this 
statute  applies  to  jurors.  Dearmond  v.  Dcannond,  10  Ind.  191  ; 
Huds petit  V.  Herston,  64  Ind.  133.  It  will  be  seen  from  tliis  statute 
that  tlie  relationship  may  be  waived,  and  the  juror  permitted  to 


serve. 


*    *    * 


But,  aside  from  the  question  of  waiver,  were  the  juror  and  the 
appellee  related,  it  is  clear  that  they  were  not  related  by  consanguin- 
ity. If  related  at  all,  it  was  by  affinity.  Appellant's  contention  is  that 
they  were  related  by  affinity,  while  appellee  insists  that  no  relation- 
ship exists  between  them  by  affinity.  Affinity  is  an  artificial  relation- 
ship. Bouv.  Law  Diet,  defines  it  thus :  "Tlie  connection  existing  in 
consequence  of  marriage  between  each  of  the  married  persons  and 
the  kindred  of  the  other.  It  is  distinguished  from  consanguinity, 
which  denotes  relationship  by  blood.  Affinity  is  the  tie  whish  exists 
between  one  of  the  spouses  with  the  kindred  of  the  other.  Thus,  the 
relations  of  my  wife — her  brothers,  her  sisters,  her  uncles — are 
allied  to  me  by  affinity;  and  my  brothers,  sisters,  etc.,  are  allied  in 
the  same  way  to  my  wife.  But  my  brother  and  the  sister  of  my  wife 
are  not  allied  by  the  ties  of  affinity."-^ 

The  degrees  of  relationship  by  consanguinity  of  a  husband  or 
wife  to  a  third  person  is  determined  by  counting  up  to  the  common 
ancestor,  and  down  to  the  related  party ;  and  the  degree  of  relation- 
ship by  affinity  is  found  by  counting  up  to  the  common  ancestor,  and 
then  counting  dov.-n.  The  juror  complained  of  was  related  to  appel- 
lee's wife  by  affinity  only.  This  did  not  relate  the  juror  and  appellee 
by  affinity.  The  husbands  of  second  cousins  could  not  possibly  fall 
within  the  line  of  computation.  The  juror  can  not  be  related  to  the 
appellee  without  departing  from  the  principle  upon  which  relation- 
ship by  affinity  is  determined.    It  is  sometimes  said  that  there  is  a 


''Accordincr  to  Coke  if  a  juror  was  of  kin  to  cither  party  in  any  dejrree 
he  was  disqiiahfied.  Co.  Litt  157a.  But  later  practice  exchided  only  those 
related  within  the  ninth  degree,  3  Bl.  Comm.  363 ;  Tidds  Pr.  853.  Such  is 
the  rule  in  a  number  of  states  while  in  others  the  statutes  prescribe  a  nearer 
degree  of  relationship  for  absolute  disqualification. 

^If  either  party  to  the  marriage  be  dead  and  no  issue  living,  the  disquali- 
fication ceases.  Cain  v.  Ingham,  7  Cow.  (N.  Y.)  478  (1827)  ;  and  note  V an- 
noy V.  Givens,  23  N.  J.  L.  201  (1851)  ;  Bigelow  v.  Sprague,  140  Mass.  425, 
5  N.  E.  144  (1885). 


TEGARDEN    V.    PHILLIPS  353 

connection  between  parties,  arising  from  marriage,  which  is  neither 
consanguinity  nor  affinity.    It  is  called  "afjlnitas  affinitatis."    Bouv. 
Law  Diet. ;  Ersk.  Inst.  p.  678.     It  is  sometimes  confused  with  and 
called  "affinity."   As  a  general  rule,  however,  this  connection  is  too 
vague  and  shadowy  for  judicial  cognizance.    In  any  event,  it  is  not 
recognized  by  our  statute.    Section  240,  Rev.  Stat.  1894;  sec.  240, 
Rev.  Stat.  188 1.  It  is  true  that  in  some  cases  this  relationship  or  con- 
nection has  been  recognized  by  the  courts.    Thus,  in  Markham  v. 
Lee,  22  Edw.  IV,  p.  2,  cited  in  Mounson  v.  West,  i  Leon.  89,  the 
defendant's  challenge  to  the  array  was  sustained  because  the  sheriff's 
wife  was  a  sister  to  the  plaintiff's  wife.  And  in  15  Hen.  VII,  ch.  9, 
cited  in  i  Leon.  89,  the  challenge  was  sustained  because  the  brother 
of  the  wife  of  the  defendant  had  married  the  daughter  of  the  sheriff. 
In  Foot  V.  Morgan,  i  Hill  (N.  Y.)  654,  it  was  held  that  a  justice  of 
the  peace  who  had  married  the  sister  of  the  plaintiff'  was  incompe- 
tent to  try  the  case.  And  in  Railroad  Co.  v.  Schuyler,  28  How.  Prac. 
(N.  Y.)   187,  it  was  held  that  a  judge  who  had  married  the  first 
cousin  of  one  of  the  defendants  was  incompetent  to  sit.   These  are 
the  only  cases  which  have  come  under  our  observation  which  directly 
support  appellant's  contention.   The  appellant  cites  and  relies  upon 
the  case  of  Paddock  v.  Wells,  2  Barb.  Ch.  (N.  Y.)  231.   It  is  there 
said:   "Relationship  by  affinity  may  also  exist  between  the  husband 
and  one  who  is  connected  by  marriage  with  a  blood  relative  of  the 
wife.    Thus,  where  two  men  marry  sisters,  they  become  related  to 
each  other  in  the  second  degree  of  affinity,  as  their  wives  are  related 
in  the  second  degree  of  consanguinity,"  This  latter  statement  is  mere 
dicta,  for  there  was  no  such  question  before  the  court.  The  question 
there  before  the  court  was  whether  or  not  the  vice  chancellor  was 
competent  to  sit,  he  being  a  first  cousin  of  a  former  husband  of  tlie 
defendant,  there  being  issue  living  of  the  first  marriage.   We  believe 
the  weight  of  authority,  as  well  as  reason  and  logic,  is  opposed  to 
appellant's  contention.   In  Co.  Litt.  527,  it  is  laid  down  that  the  mar- 
riage of  the  juror's  son  with  the  daughter  of  the  plaintiff  is  not  a 
principal  cause  of  challenge,  as  it  would  be  if  the  juror  himself 
had  married  the  daughter  of  the  plaintiff.    In  2  Steph.  Comm.,  it  is 
said :  "The  consanguinei  of  the  wafe  are  the  affines  of  the  husband, 
and  vice  versa;  but  the  affines  of  the  wife  are  not  those  of  the 
husband,  nor  are  the  affines  of  the  husband  those  of  the  wife."   In 
Waterhouse  v.  Martin,  Peck  (Tenn.)  374,  it  is  held  that  there  is  no 
relation  by  affinity  between  a  party  to  the  suit  and  the  judge,  whose 
son's  wife  is  an  aunt  of  such  party.    In  Hume  v.  Bank,   10  Lea 
(Tenn.)  i,  it  is  held  that  a  judge  is  not  incompetent  to  sit  in  a  cause 
in  which  the  husband  of  his  wife's  sister  is  a  party.    In  Poydras  v. 
Livingston,  2  Mart.   (N.  S.  482)    (La.)   293,  it  was  decided  that, 
although  the  wives  of  the  judge  and  the  defendant  were  related  by 
consanguinity  in  the  fourth  degree,  the  husbands  were  not  related  by 
affinity,  and  that  the  judge  was  not  disqualified.   In  Chinn  v.  State, 
47  Ohio  Stat.  575,  it  was  held,  in  a  criminal  case,  that  a  defendant 
was  not  related  by  either  consanguinity  or  affinity  to  his  wife's  broth- 
er's wife.   See,  also,  Coop.  Just.  422;  Tayl.  Civ.  Law,  339;  i  Bish. 
Mar.  &  Div.  314;  Just.  Inst,  i,  10,  6;  i  Chit.  Bl.  435,  note  5.    The 
23 — Civ.  Pkoc. 


354 


TRIAL 


17 


juror  was  not  incompetent.  Under  this  rule  above  stated,  it  is  true 
that,  if  two  men  should  marry  sisters,  one  would  not  be  disqualified 
by  this  fact  alone  from  serving  on  a  jury  where  the  other  is  a  party. 
But  there  are  many  other  grounds  for  clvallenging  a  juror  than  those 
enumerated  in  the  statute.  A  juror  must  be  disinterested,  impartial, 
free  from  bias  and  prejudice.  If,  by  reason  of  his  relationship,  or 
by  reason  of  his  association  with  a  party,  he  has  become  biased  or 
prejudiced,  or  rendered  partial,  he  may  be  challenged  for  such 
cause.  -'-•  Thornt.  Juries  &  Inst.,  p.  79. 
Judgment  affirmed. 


THOMPSON  V.  DOUGLASS. 

Supreme  Court  of  Appeals  of  West  Virginia,  1891. 

35  W.  Va.  337. 

Branxon,  J. :  Thompson  &  Jackson  brought  an  action  of 
assumpsit  against  S.  C.  Douglass  &  Co.  in  the  Circuit  Court  of  Bar- 
bour county,  and  recovered  judgment;  and  tlie  defendants  brought 
tlie  case  to  this  court.^° 

The  first  point  of  error  made  against  the  judgment  is  that  the 
court  excluded  five  persons  from  tlie  jury  because  they  were  in- 
debted to  one  of  the  defendant  firm.  Challenges  of  jurors,  called 
challenges  to  the  polls,  are  of  two  kinds — peremptory  and  for  cause. 
Lord  Coke  said,  as  we  can  say  to-day,  that  peremptory  challenges 
were  allowed  the  party  "upon  his  own  dislike,  without  showing  any 
cause."^^  Our  law  allows  each  party  in  civil  cases  four  such  chal- 
lenges and  in  felony  cases,  to  the  state  two,  and  the  accused  six. 
Challenges  for  cause  are  divided  by  the  common  law  into  challenges 
for  principal  cause  and  challenges  to  the  favor — the  former  being 
where  the  cause  assigned  positively  disqualified ;  the  latter  being 
causes  w^hich,  though  not  conclusively  disqualifying,  yet  threw  sus- 


"Accord:  Chase  v.  Jennings,  38  Maine  44  (1854)  ;  North  Ark.  &  W.  R. 
Co.  v.  Cole,  71  Ark.  38,  70  S.  VV.  312  (1902);  Louisville  &  N.  R.  Co.  v. 
Holland,  173  Ala.  675,  55  So.  looi  (1911).  Compare  Den  v.  Clark,  i  N.  J.  L. 
446  (1794).  And  see  generally  as  to  incompetency  through  relationship, 
Y.  B.  23  Ass.  11;  Y.  B.  21  Edw.  IV.,  20;  Hartford  Bank  v.  Hart,  3  Day 
(Conn.)  491,  3  Am.  Dec.  274  (1807);  Daily  v.  Gaines,  i  Dana  (Ky.)  529 
(1833)  ;  Churchill  v.  Churchill,  12  Vt.  661  (1839)  ;  Armstrong  v.  Timmons,  3 
Har.  (Del.)  342  (1841)  ;  Paddock  v.  Wells,  2  Barb.  Ch.  (N.  Y.)  331  (1847)  ; 
Hardy  v.  Sprowle,  32  Maine  310  (1850)  ;  and  note  Triillinger  v.  Webb,  3  Ind. 
198  (1851)  ;  Balshau2hjLFaJj:£r,J.3  Pa^St.__95_(i852)  ;  Morrison  v.  McKinnon, 
12  Fla.  552  (W6ST;  Rust  v.  ShackleJorJ,  47  Ga.  538  (1873)  ;  Lynds  v.  Hoar, 
10  Nova  Scotia  327  (1875)  ;  Wirchach  v^  First  Nat.  Bank,  97  Pa.  Sl  543,  39 
Am.  Rep.  821  (1881)  ;  People  v.  Clark,  62  Hun  (N.  YTS^ifirNTY.  S.  473, 
695,  41  N.  Y.  St.  448  (1891)  ;  Texas  &  P.  R.  Co.  v.  Elliott,  22  Tex.  Civ.  App. 

31,  54  s.  w.  410  (1899);  CM^iildLy^Jlpw£lL_^^..;Ps^^\s>t.R^37  (1907); 

Pemiscot  L.  &c.  Co.  v.  Davis,  147  Mo.  App.  194,  I25^.  W.  218  (1909)  ; 
Walsingham  v.  State,  61  Fla.  67,  56  So.  195  {1911);  Dalton  v.  Humphries. 
139  Ga.  556,  77  S.  E.  790  (1912). 

"A  part  of  the  opinion  of  the  court  is  omitted. 

"Co.  Litt.  156b. 


THOMPSON    V.    DOUGLASS  355 

piclon  of  bias  on  the  juror.  Principal  challenges  were  tried  by  the 
court,  challenges  to  the  favor  by  three  triers;  and,  while  these  dif- 
ferent modes  of  trial  of  challenges  existed,  it  was  very  important  to 
preserve  this  distinction  in  order  to  determine  in  which  class  the 
challenges  would  fall,  in  view  of  the  different  methods  of  trial  of 
each.  But  our  statute  law  requires  challenges  to  be  tried  by  the 
court,  and  thus  the  distinction  between  principal  cause  of  challenge 
and  challenge  to  the  favor  has  become  unimportant,  and  we  com- 
monly call  all  challenges  challenges  for  cause.^^  What  Lord  Coke  said 
centuries  ago  may  be  said  now :  "The  causes  of  favor  are  infinite." 
No  enumeration  was  ever  attempted  of  what  causes  might  be  alleged 
as  grounds  of  challenges  to  the  favor.  It  would  be  impossible  to 
specify  all  that  should  be  allowed  in  advance  by  a  statute,  for  they 
depend  upon  each  particular  case,  and  the  circumstances  and  parties 
to  it.  All  concede  that  statutory  disqualifications  are  not  the  only 
ones.^^ 

The  cause  assigned  for  the  challenge  of  these  jurors  would  fall 
under  the  head  of  challenge  to  the  favor.  But  is  the  fact  that  a 
man  is  indebted  to  another  good  cause  of  challenge  to  exclude  the 
indebted  party  from  sitting  as  a  juror  in  a  case  wherein  the  creditor 
is  a  party?  Would  a  feeling  of  favor  or  fear  move  him,  in  the  eye 
of  the  lav/,  to  render  a  false  verdict?  Practically,  there  is  some 
force  to  say  that  where  a  party  is  greatly  favored  by  a  creditor,  by 
indulgence,  he  would  feel  a  favor  towards  his  friend;  and,  with  per- 
haps more  force,  that  one  largely  indebted  to  another,  so  much  in- 
debted as  to  be  at  his  mercy  for  his  solvency,  and  even  his  home, 
might  from  fear  fail  to  render  a  just  verdict  adverse  to  his  creditor. 
On  the  other  hand,  it  would  be  going  quite  far  to  say  that  simply 
the  fact  that  one  man  is  indebted  to  another  would  disqualify ;  that 
if  he  owes  only  a  small  sum,  which  he  is  able  to  pay  at  any  time,  or 
is  a  man  of  large  means,  or  had  more  means  than  has  his  creditor, 
he  should  be  rejected.   I  do  not  say  that  no  case  of  indebtedness — 


°"The  tendency  of  modem  legislation  is  to  relegate  the  trial  of  all  chal- 
lenges to  the  court.  Thompson  and  Merriam  on  Juries,  §  172;  Proffatt  on 
Trial  by  Jury,  §  167;  New  York  Code  Civ.  Proc,  §  1180 ;  Pennsylyaniaact^ 
of  June^S,  1883,  P.  L.  79,  §  i,  P.  &  L.  Dig.  4260;  Compiled~Statutes"o f~Ts'  ew" 
J erseyTTOmr^prSpTS ;  Rev.  L.  Mass.  (1902)  ch.  176,  §  28;  O' Fallon  Coal 
Co.  V.  Laquet,  198  111.  125,  64  N.  E.  767  (1902). 

^'Churchill  V.  Churchill,  12  Vt.  661  (1839)  ;  Paddock  v.  Wells,  2  Barb.  Ch. 
(N.  Y.)  331  (1847)  ;  Bailey  v.  Macaulay,  13  Ad.  &  El.  (N.  S.)  815  (1849)  ; 
Hudspeth  v.  Herston,  64  Ind.  133  (1878);  Mich.  A.  L.  R.  Co.,  v.  Barnes, 
40  Mich.  383  (1879)  ;  Kohler  v.  West  Side  R.  Co.,  99  Wis.  33,  74  N.  W.  568 
(1898)  ;  Medlock  v.  Commrs.,  115  Ga.  237,  4i  S.  E.  579  (1902)  ;  Grant  v. 
Nat.  R.  Spring  Co.,  100  App.  Div.  234,  91  N.  Y.  S.  805  (1905).  A  juror 
is  not  incompetent  because  he  is  a  member  of  the  same  religious  denomina- 
tion or  fraternal  order  as  one  of  the  parties  to  the  suit,  unless  the  interests 
of  the  particular  congregation  or  lodge  to  which  he  belongs  are  involved. 
Purple  v.  Morton,  13  Wend.  (N.  Y.)  9,  27  Am.  Dec.  167  (1832) ;  Biirdine 
V.  Grand  Lodge,  37  Ala.  478  (1861)  ;  Clcage  v.  Hyden,  6  Heisk.  (Tenn.)  73 
(1871)  ;  Delazvare  Lodge  v.  Allmon,  1  Pennew.  (Del.)  160  (1897)  ;  Reed  v. 
Peacock,  123  Mich.  2^4,  82  N.  W.  53,  4  L.  R.  A.  423,  81  Am.  St.  194  (1900)  ; 
Smith  v.  Sisters  of  the  Good  Shepherd,  27  Ky.  L.  I107,  87  S.  W.  1083  (1905)  ; 
Searle  v.  Bishop  of  Springfield,  203  Mass.  493  (1909)  ;  Sehring  v.  Weaver, 
42  Pa.  Super.  Ct.  588  (1910). 


356  TRIAL 

one  siiowlnj::  the  debtor  to  be  at  the  mercy  and  in  the  power  of  his 
creditor — might  not  exchide.  I  have,  however,  met  wiUi  no  case 
exckiding,  or  of  attenijit  to  exckide,  a  juror  for  such  cause,  except 
one  cited  by  counsel,  Jhi)ih  v.  Siiiit/i,  19  Jolms.  (N.  Y.)  115,  where, 
because  the  juror  was  an  indorser  on  a  note  held  by  a  bank,  he  was 
held  disqualified  by  the  triers,  not  by  the  court — the  court  having  al- 
lowed the  fact  to  go  before  the  triers  as  an  item  of  evidence  to  show 
bias;  and,  as  the  court  above  said,  it  was  a  decision  on  the  admissi- 
bility, not  on  the  sufticicncy,  of  the  evidence  to  show  bias;. and  the 
judge  in  the  opinion  pointedly  said  that  he  would  not  undertake  to 
say  that  the  single  circumstance  that  one  was  indorser  on  a  note 
to  the  bank  would  of  itself  support  a  challenge  to  the  favor,  yet  it 
was  easy  to  imagine  that  an  indorser  might  have  bias,  as  in  case  the 
maker  was  insolvent,  and  the  indorser  in  great  danger  at  the  hands 
of  the  bank.  Xo  other  case  is  cited. 

In  this  present  case  simply  the  fact  of  indebtedness  is  shown 
witliout  any  appearance  of  amounts  or  the  relative  pecuniary  stand- 
ing of  the  parties.  We  therefore  think  the  jurors  were  improperly 
excluded.^* 

What  then?  Is  it  reversible  error,  or  harmless  error?  Where 
a  disqualified  juror  is  put  on  the  jury,  it  is  of  course  error;  but 
where  a  qualified  juror  is  improperly  rejected,  it  is  a  wholly  differ- 
ent thing.  In  such  case  the  man  taking  his  place  is  qualified  and  un- 
exceptionable. Is  he  not  as  good  a  juror  as  the  excluded  one?  Has 
not  the  party  had  what  the  law  designs — a  trial  by  an  impartial  jury  ? 
If  you  set  aside  the  verdict,  upon  a  new  trial  he  can  not  get  that 
rejected  man.  Is  that  man  better  than  all  the  balance  of  the  citizens 
of  the  state  qualified  for  jury  service?  Shall  a  long  costly  trial  be 
upturned  for  such  cause  only  to  give  the  party  what  he  has  already 
had — a  fair  jury?  Is  the  administration  of  justice  to  bear  the  odium 
of  such  technicality? 

Snow  V.  Weeks,  75  Maine  105,  holds  that  the  exclusion  of  a 
qualified  juror  is  not  reviewable;  that  the  judge  "may  put  a  legal 
juror  off,  but  can  not  allow  an  illegal  juror  to  go  on."   In  Sutton  v. 


"One  who  stands  in  a  business  relation  to  a  party  to  the  suit  which  is 
cakulated  to  influence  his  verdict  will  not  be  permitted  to  serve  as  a  juror. 
Y.  B.  ID  Edw.  I\',  12;  Anonymous,  2  Dyer  176a  (1559);  Harrishiirg_MJh^ 
V.  For.yf rr^  JA'atts  (Pa.)  304  (1839);  Goodrich  v.  BitrdiclT^  2^  Mich..  39 
~(iS72)  -y'Stumm  v.  TtTTuniiel,  39  Iowa  478  (1874)  ;  Hubbard  v.  Rutlidge,  57 
!NIiss.  7  (1879)  ;  Cent.  R.  R.  Co.  v.  Mitchell,  63  Ga.  173  (1879)  ;  Catasanqua 
Mfg.  Co_,^,^ot>kins,  141  Pa.  St.  30.  .21  Atl.  638  (1891)  ;  Iroquois  Furnace 
Co.  V.  McCrea,  igi  111.  340,  61  N.  E?  79  ( 1901 )  ;  McCorkle  v.  Mallory,  30 
Wash.  632,  71  Pac.  186  (1902);  Blair  v.  McCormack  Const.  Co.,  123  App. 
Div.  30,  107  N.  Y.  S.  750  (1907)  ;  Pearce  v.  Quincy  Min.  Co.,  149  Mich. 
112,  112  N.  W.  739,  12  Ann.  Cas.  304  and  note  (1907);  Hall  v.  Chattin, 
17  Idaho  664,  106  Pac.  1132  (1910);  Hufnanlc  v.  Del.  &  H^  Co.,  227  Pa. 
476j  76  Atl.  205  (1910J.  But  otherwise  if  the  relationship  is  not  calculated 
to  influence  tlie  verdict.  Marsh  V.  Coppock,  g  Car.  &.  P.  480  (1840);  Cu^ii: 
intngsy^Cann,  F,2  Pa.  SjL484_  (1866)  ;  Richardson  v.  Planters'  Bk.,  94  \'a. 
130,  26^  E.  413  (i896yT~FaH  Strike  v.  Potter,  53  Nebr.  28,  7i  N.  W.  295 
(1897);  Arnold  v.  Producers'  Fruit  Co.,  141  Cal.  738,  75  Pac.  326  (1904)  ; 
Dimmack  v.  Wheeling  Trac.  Co.,  58  W.  Va.  226,  52  S.  E.  loi  (1905)  ;  Joyce 
V.  Metropolitan  S.  R.  Co.,  219  Mo.  344,  118  S.  W.  21  (1908)  ;  Border  v. 
Carrabine,  30  Okla.  740,  120  Pac.  1087  (1912). 


THOMPSON    V.    DOUGLASS  357 

Fox,  55  Wis.  531,  is  a  quaere  whether  the  rejection  of  a  competent 
juror  would  be  error;  but  the  opinion  strongly  maintains  that  it  is 
not.  In  Tatiim  v.  Young,  i  Port.  (Ala.)  298,  it  was  held  that  "when 
a  cause  has  been  tried  by  a  legally  impartial  jury,  though  the  judge, 
on  the  application  of  the  plaintiff,  against  the  consent  of  the  defend- 
ant, may  have  rejected  a  juror  for  a  cause  somewhat  questionable  as 
to  its  sufficiency,  such  rejection  of  the  juror  is  not  available  in  error." 
This  opinion  draws  the  line  between  the  erroneous  rejection  and  ad- 
mission of  a  juror,  and  says,  where  the  trial  has  been  by  a  fair  jury, 
there  can  be  no  prejudice,  and  quotes  with  approval  what  Judge 
Story  said  in  U.  S.  v.  Cornell,  2  ]\Iason  (U.  S.)  91 :  "Even  if  a  juror 
liad  been  set  aside  by  the  court  for  an  insufficient  cause,  I  do  not 
know  that  it  is  a  matter  of  error,  if  the  trial  has  been  by  a  jury  duly 
sworn  and  impaneled,  and  above  all  exceptions.  Neither  the  pris- 
oner nor  the  government  in  such  a  case  have  suffered  any  injury." 

In  O'Brien  v.  Iron  IVorks,  7  ]\Io.  App.  257,  it  vras  held  that 
"the  improper  exclusion  of  a  juror  upon  a  challenge  is  not  sufficient 
ground  for  reversal,  where  it  does  not  appear  that  the  party  was 
prejudiced  thereby."  In  Maner  v.  State,  8  Tex.  App.  361,  held  that 
excusing  juror  for  insufficient  cause  was  no  material  error,  when  it 
is  not  shown  that  the  defendant  was  prejudiced.  See  Dodge  v. 
People,  4  Nebr.  220;  John  D.  C.  v.  State,  16  Fla.  554;  Railroad  Co. 
V.  Franklin,  23  Kans.  74 ;  State  v.  Ward,  39  Vt.  225  ;  Watson  v.  State, 
63  Ind.  548. 

There  are  some  authorities  on  the  other  side.    I  notice  that  a 
very  limited  number  cited  by  prisoner's  counsel  in  Montague's  Case, 
10  Grat.  (Va.)  767,  sustain  the  contrary;  perhaps  only  two  of  the 
American  cases.    An  abuse  of  discretion  by  the  court,  or  where  it 
appears  that  prejudice  in  the  particular  case  resulted  from  the  ex- 
clusion, would  be  subject  to  review.    Nothing  of  this  kind  appears  ) 
here,  and  we  are  of  opinion  that  the  exclusion  of  these  jurors,  / 
though  on  insufficient  ground,  is  not  reversible  error."-* 
^//<9^- 

'"While  the  disallowance  of  a  good  cause  of  challenge  may  result  in  a  /^  /C*^ 
reversal  of  judgment,  the  erroneous  allowance  of  a  challenge  will  not,  in  the  [  ■. 

absence  of  abuse  of  discretion,  necessarily  have  that  effect.    A  party  is  en-     ^  ^y^A 
titled  to  an  impartial  jun,-,  but  he  is  not,  as  a  matter  of  right,  entitled  to  any  ,  /  J/'^^ 
particular  juror  called  who  happens  to  be  qualified.  Phelps  v.  Hall,  2  Tvler  ^"^^y 
(Vt.)  401   (1803);  Silvis  v.  £/v,  3  Watt5.  &  3.   (Pa.)  420  (1842);  Bibb  v.  u  r Lom) 
Re'xd,  3  Ala.  88  (1841)  ;  Mansell  v.  The  Queen,  S  El.  '&  B.  54  (1857)  ;  Smith 
V.  Clayton,  29 _N.  J.  L.  357  (1862)  ;  People  v.  Arcco,  32  Cal.  40  (1867)  ;  Grand 
Rapids  Booming  Co.  v.  Jarvis,  30  Mich.  308  (1874)  ;  Citizens'  Bk.  v.  Strauss, 
26  La.  Ann.  736  (1874)  ;  Coryell  v.  Stone,  62  Ind.  307   (1878)  ;  O'Brien  v. 
Vulcan  Iron  Works,  7  AIo.  App.  257  (1879)  ;  Commonzi'ealth  v.  Hosier,  135 
Pa.  St.  221,  19  Atl.  943  (1890)  ;  Rhea  v.  State,  63  Nebr.  461,  88  N.  W.  789 
(1902);    Glasgow  v.  Metropolitan  St.  R.   Co.,  191    Mo.  347,  89   S.  W.  915 
(1905);   International  &  G.  N.  R.   Co.  v.   Owens,    (Tex.)    124   S.   \V.  210 
(1910);    Comjih.  \.   Henderson,  24.2   Pa.   372.   89   Atl.   567    (1913).    Contra: 
Boles  V.  3Va/<?,  13  bm.  &  M.   (Miss.)   398  (1850);   V^an  Blaricum  v.  People, 
16  111.  364,  63  Am.  Dec.  316  (1855)  ;  Scranton  v.  Gore.  124  Pa.  c;q-^  t?  Atl. 
144   (1889),  and  compare  Comfort  v.  Mosser.  121   Pa.   St.  4=;:::.   t^  At!.  612 
(1888)  ;  Clay  y.  Western  M'.  R.  to.,  221  Pa   4.^9.  70  Atl.  807  (IQ08)  ;  Searle 
V.  Roman~Cathohc  J^isiiop,  203  Mass.  493   (1909).    It  is  generally  held  that 
the  findings  of  the  court  upon  questions  of  fact  involved  in  a  challenge  are 
conclusive,  but  the  findings  upon  questions  of  law  are  reviewable  on  error. 


358  TRIAL 

WOOD  z:  STODDARD  (uil  tarn,  &c. 

Supreme  Court  of  New  York,  1807. 

2  Johns.  (N.  Y.)  194 


A 


In  error  on  certiorari.  The  plaintiff  below  brought  an  action  to 
recover  of  the  defendant  below  a  sum,  received  by  him  for  exces- 
sive interest,  under  the  act  for  preventing  usury,  one  moiety  of  which 
is  directed  to  go  to  tlie  use  of  the  town  where  the  offense  is  commit- 
ted, and  the  other  moiety  to  the  person  prosecuting.  The  cause  was 
tried  in  the  tov/n  of  Scipio,  where  the  usurious  sum  was  received. 
The  constable  and  jury  were  inhabitants  of  tlie  same  town.  The  de- 
fendant below  challenged  all  tlie  jurors  as  being  interested.  The 
justice  before  whom  the  cause  was  tried  overruled  the  exception, 
and  a  verdict  was  found  for  the  plaintiff. 

Per  Curiam  :  The  relaxation  of  the  rule,  as  to  questions  of 
interest,  has  never  been  extended  to  jurors.  They  must  be  omni 
exceptione  majores,  free  from  every  objection,  and  wholly  disinter- 
ested.  The  judgment  below  must  be  reversed. 

Judgment  reversed.^® 

March  v.  Portsmouth  &  C.  R.  Co.,  19  N.  H.  372  (1849)  ;  Dew  v.  McDivitt, 
31  Ohio  St.  139  (1876);   \Virehaxh  v^_FirstI^t^^  9ZP?'--S43>  39  ■'*^"^- 

Rep.  821  (1881)  ;  CatasaitqucTMJg^  Co.  v.  HopHtns,  141  WTTTzo,  21  Atl.  638 
(1891)  ;  Johnson  v.  State,  59  N.  J.  L.  271,  35  Atl.  787  (1896)  ;  Ruschenberg 
V.  Southern  El.  R.  Co.,  161  I^Io.  70,  61  S.  W.  626  (1900)  ;  State  v.  Register,  133 
N.  Car.  746,  46  S.  E.  21  (1903)  ;  Grayhill  v.  DeYoitng,  146  Cal.  421,  80  Pac. 
618  (1905);  Sansouver  v.  Glenlyon  Dye  Works,  28  R.  I.  539,  68  Atl.  545 
(1908)  ;  Hinton  v.  Atchison  &  N.  R.  Co.,  83  Nebr.  835,  120  N.  W.  431  (1909)- 
Other  courts  hold  that  the  decision  of  the  trial  court  is  reviewable  whether 
the  challensje  is  for  principal  cause  or  to  the  favor.  Winnesheik  Ins.  Co.  v. 
Schucller,  60  111.  465  (1871)  ;  Bnlbo  v.  People,  80  N.  Y.  484  (1880)  ;  O' Fallon 
Coal  Co.,  v.  Laquet,  198  111.  125,  64  K.  E.  767  (1902). 

"Accord:  17  Lib.  Ass.  15;  28  Lib.  Ass.  18;  Day  v.  Savadge,  Hob.  85,  87; 
Anonymous,  I  Salk.  153  (1688)  ;  Queen  v.  Wilts  County,  6  Mod.  307  (1704)  ; 
Hesketh  v.  Braddock,  3  Burr.  1847  (1766);  Alexandria  v.  Brockett,  i  Cr. 
C.  C.  505  (1808)  ;  Boston  v.  Tileston,  11  Mass.  468  (1814)  ;  Russell  v.  Hamil- 
ton, 3  III.  56  (1839)  ;  Columbus  v.  Goetchius,  7  Ga.  139  (1849)  ;  Fine  v.  St. 
Louis  Public  Schools,  30  Mo.  166  (i860);  Hazves  v.  Gustin,  84  Mass.  402 
(1861);  Bailey  v.  Trumbull,  31  Conn.  581  (1863);  Garrison  v.  Portland,  2 
Ore.  123  (1865)  ;  Johnson  v.  Americus,  46  Ga.  80  (1872)  ;  Diveny  v.  Elmira, 
51  N.  Y.  506  (1873)  ;  Watson  v.  Tripp,  11  R.  I.  98,  33  Am.  Rep.  420  (1874)  ; 
Gibson  V.  Wyandotte,  20  Kans.  156  (1878);  Goshen  v.  England,  119  Ind. 
368,  21  N.  E.  977,  5  L.  R.  A.  253  (1889)  ;  Robinson  v.  Wilmington,  8  Houst. 
(Del.)  409  (1889);  Cason  v.  Ottumwa,  102  Iowa  99,  71  N.  W.  192  (1897); 
Davey  v.  Jamesville,  in  Wis.  628,  87  N.  W.  813  (1901)  ;  Multnomah  County 
V.  Willamette  Towing  Co.,  89  Ore.  204,  89  Pac.  389  (1907)  ;  Anderson  v. 
Wilmington,  6  Pennew.  (Del.)  485,  70  Atl.  204  (1907)  ;  Broadway  Mfg.  Co., 
V.  Leavenworth  Terminal  R.  Co.,  81  Kans.  616,  106  Pac.  1034  (1910). 
Contra:  Middleton  V.  Ames,  7  Vt.  166  (1835)  ;  Omaha  v.  Olmstead,  5  Nebr, 
446  (1877);  Kemper  v.  Louisville,  14  Bush  (Ky.)  87  (1878);  Jackson  v. 
Pool,  91  Tenn.  448,  19  S.  W.  324  (1892)  ;  Marshall  v.  McAllister,  18  Tex.  Civ. 
App.  159,  43  S.  W.  1043  (1898)  ;  Detroit  v.  Detroit  Ry.,  134  Mich.  11,  95  N. 
W.  992,  99  N.  W.  411,  104  Am.  St.  600  (1903).  The  principle  has  been 
applied  to  taxpayers  of  counties.  Peck  v.  Essex,  21  N.  J.  L.  656  (1847); 
Elliott  V.  Wallozha  County,  57  Ore.  236,  109  Pac.  130  (1910).  Contra:  RaUi- 
b-.'.n  v.  Thurston  Co.,  8  Wash.  238,  35  Pac.  1132  (1S94)  ;  Eastman  v    Burke, 


^ 


PAGE  V.    CONTOOCOOK   VAL.    RAILROAD  359 

PAGE  V.  THE  CONTOOCOOK  VALLEY  RAILROAD. 

Superior  Court  of  Judicature  of  New  Hampshire,  1850. 

21  A^.  H.  438. 


Appeal  from  the  decision  of  commissioners  and  selectmen, 
awarding  damages  to  the  appellant  for  laying  out  the  Contoocook 
Valley  Railroad,  across  his  land. 

On  the  20th  of  June,  1850,  the  Contoocook  Valley  Railroad  and 
the  Concord  and  Claremont  Railroad  entered  into  a  contract  by  in- 
denture, which  contract  was  in  force  at  the  time  of  the  trial  of  this 
cause,  in  October,  1850.  By  this  contract,  it  was  agreed  that  the 
Concord  and  Claremont  Railroad  should  run  and  manage  both  roads, 
and  tliat  the  joint  net  income  of  both  roads  should  be  divided  be- 
tween them  in  proportion  to  the  sums  expended  in  constructing  and 
completing  each. 

After  the  trial  of  this  cause  by  the  jury,  it  was  discovered  that 
one  of  the  jurors  owned  eleven  shares  in  tlie  capital  stock  of  the 
Concord  and  Claremont  Railroad ;  and,  on  this  ground,  the  appellant 
moved  to  set  aside  the  verdict. 

Perley,  J. :  By  the  contract  between  the  two  roads  the  net  in- 
come of  both  was  to  be  divided  in  proportion  to  the  cost  of  each. 
The  sums  paid  to  land-owners  would  be  part  of  the  expense  of  con- 
structing and  completing  the  roads.  Under  this  bargain,  stockholders 
in  the  Concord  and  Claremont  road  would  be  interested  to  keep  the 
land-damages  paid  by  the  other  road,  as  low  as  possible,  because,  on 
a  division  of  profits,  the  lower  the  land-damages  paid  by  the  Con- 
toocook Valley  road,  the  smaller  would  be  the  amount  taken  by  that 
road  from  the  common  fund,  out  of  which  dividends  would  be  made 
to  the  stockholders  of  the  two  roads. 

The  juror,  who  owned  stock  in  the  Concord  and  Claremont  road, 
was,  therefore,  by  virtue  of  this  contract,  directly  interested  in  the 
result  of  the  cause,  which  he  assisted  to  try.'^  His  interest  was  prob- 


119  N.  Car.  505,  26  S.  E.  39  (1896)  ;  Martin  v.  Somervell  Co.,  21  Tex.  Civ. 
App.  308,  52  S.  W.  556  (1899)  ;  Pool  V.  Warren  Co.,  123  Ga.  205,  51  S.  E. 
328  (1905)  ;  Big  Sandy  R.  Co.,  v.  Floyd  Co.,  31  Ky.  L.  17  (1907)  ;  Wilson  v. 
Wapello,  129  Iowa  77,  105  N.  W.  363  (1905).  In  a  number  of  states  it  is 
provided  by  statute  that  the  fact  that  a  juror  is  a  resident  or  taxpayer  of 
a  city,  town  or  county  is  not  a  good  cause  of  challenge.  New  York  Code 
of  Civil  Procedure,  §  1170:  Pennsylvania,  act  of  April  ^6;_i84.o.  P.  L.  410, 
§  6,  P.  &  L.  Dig.  4260;  S_crqntbn  y  Gore,  124^ a.  St.  59^^x7  A!Tri44  (1889)  ; 
Rev.  Laws  Minn.  1905,  §  4i3T~l^ew  Jersey^^vT  Stat  1877,  p.  530,  §  39; 
W.  Va.  Code  1906,  §  3717;  Rev.  Laws  Mass.  (1902)  pp.  1492,  1591.  In 
Boston  v.  Baldwin,  139  Mass.  315,  i  N.  E.  417  (1888)  a  member  of  common 
council  of  the  city  of  Boston  was  held  not  competent  to  sit  as  a  juror  in 
a  case  to  which  the  city  was  a  partj^ 

^'But  compare  Augusta  S.  R.  Co.  v.  McDadc,  105  Ga.  134,  31  S.  E.  420 
(1898).  Generally,  stockholders  are  not  competent  as  jurors  in  actions  to 
which  their  corporation  is  a  party.  Y.  B.  21  Edw.  IV,  11,  20,  31,  63;  Respublica 
V.  Richards,  i  Yeates  (Pa.)  480  { 17 9S)  ; ^SjMs  v.  Ely,  3  Watts  &  IS.  (Fa?)^ 
420  (,1^42;  ;  tieesorTv.  Savage  Silver  Min.  Co.,  3  JNev.  157"  (1867);  Fenin- 
sular  R.  Co.  v.  Hozivrd,  20  Mich.  18  (1870)  ;  Butler  v.  Glens  Falls  &c.  R.  Co., 
121  N.  Y.  112,  24  N.  E.  187  (1890).    See  N.  Y.  Code  Civ.  Proc,  §   1180; 


360  TRIAL 

ably  vcrv  trinins:^  in  amount,  and  may  not  have  influenced  his  judg- 
ment at  all  on  the  ([ucstion  of  damages.  r>ut  the  principle  is  extremely 
well  settled,  that  any,  even  the  smallest,  degree  of  interest  in  the 
i]uestion  pending,  is  a  decisive  objection  to  a  juror.  HeskctJi  v. 
Braddock.  3  Burrows,  1856;  Hatvkcs  v.  Kcnnchcck,  7  Mass.  464; 
Wood  V.  Stoddard,  2  Johns.  (N.  Y.)  194. 

As  this  objection  was  not  known  to  the  appellant  until  after  the 
verdict  was  returned,  it  was  not  waived  by  proceeding  to  trial  with- 
out challenge. 

The  verdict  must  be  set  aside,  and  a  new  trial  granted. 


FERDINAND  GIRARD  v.  THE  GROSVENORDALE 
•\  COMPANY. 

i 

Supreme  Court  of  Errors  of  Connecticut,  1909, 

82  Conn.  271. 

Action  by  a  servant  to  recover  damages  for  personal  injuries 
alleged  to  have  been  caused  by  the  defendants'  negligence.  There 
was  a  verdict  and  judgment  for  the  plaintiff  and  appeal  by  the  de- 
fendant.^® 

Thayer,  J. :  Before  the  jury  was  impaneled  counsel  for  the 
plaintiff,  in  the  absence  of  the  jurors  and  in  the  presence  of  counsel 
for  the  defendant,  informed  the  court  that  the  defendant  was  in- 
sured against  liability  for  damage  to  the  plaintiff  through  negligence, 
by  an  insurance  company,  and  that  the  insurance  company  was  in- 
terested and  conducting  the  defense.  Counsel  for  the  defendant 
admitted  the  fact  of  the  insurance.  The  plaintiff's  counsel  claimed 
the  right  to  inquire  of  the  jurors  whether  any  of  them  were  stock- 
holders, officers,  agents,  or  employes  of  the  insurance  company,  as 
affecting  the  qualification  of  the  jurors.  The  defendant  objected  to 
this,  but  the  court  permitted  it  to  be  done,  and  in  impaneling  the 
jury  such  questions  were  asked  of  them  by  the  plaintiff's  counsel. 
Exception  was  taken  to  this,  and  it  is  assigned  as  error. 

So  far  as  appears,  the  inquiries  were  made  in  good  faith,  for  the 
genuine  purpose  of  learning  w-hether  any  of  the  jurors  were  dis- 
qualified by  interest,  and  not  for  the  purpose  of  getting  before  the 
jurors  a  fact  not  in  issue  in  the  case  for  the  purpose  of  prejudicing 
them.  The  facts  were  not  called  to  the  jury's  attention  until  per- 
mission had  first  been  obtained  from  the  court  in  their  absence.    It 


McLaughlin  v.  Louisville  Electric  Light  Co.,  100  Ky.  173,  37  S.  W.  851,  18 
Ky.  L.  693,  34  L.  R.  A.  812  (1896)  ;  Martin  v.  Farmers  Mut.  Fire  Ins.  Co., 
139  Mich.  148,  102  N.  W.  656  (1905)  ;  Murchison  Nat.  Bank  v.  Dunn  Oil  Mills 
Co.,  150  N.  Car.  683,  64  S.  E.  883  (1909).  Compare  ll'illiaws  v.  Great  IVcit. 
R.  Co.,  3  H.  &  N.  869  (1858)  ;  Rogers  Grain  Co.  v.  Tanton,  136  111.  App.  533 
C1907)  ;  Stone  v.  Monticello  Const.  Co.,  135  Ky.  659,  117  S.  W.  369  (1909)  ; 
Walter  v.  Louisville  R.   Co.,  150  Ky.  652,   150  S.  W.  824   (1912). 

"A  part  only  of  the  opinion  is  given.    For  an  error  in  the  charge  a  new 
trial  was  ordered. 


GIRARD  V.    GROSVENOKDALE    CO.  361 

was  within  the  discretion  of  the  court  to  grant  this  permission  if, 
upon  the  statements  of  counsel,  there  was  any  reason  to  beheve  that 
any  of  the  jurors  would  be  interested,  as  stockholders  or  otherwise 
in  the  insurance  company,  in  the  result  of  the  action.  Ordinarily 
such  interest  on  the  part  of  jurors  in  this  state  in  a  foreign  insur- 
ance company  would  hardly  be  presumed.  But  it  is  possible  tliat  the 
agent  of  the  company  who  placed  the  insurance,  or  claim  agent  or 
adjuster  who  had  been  employed  in  attempting  to  settle  the  claim, 
might  be  among  the  jurors  summoned.  It  can  not,  therefore,  be  said 
that  in  all  cases  it  is  improper  to  permit  counsel  to  ask  such  questions 
as  were  permitted  in  this  case  to  determine  whether  jurors  are  dis- 
qualified. Cases  are  cited  from  other  states  holding  that  it  is  error 
to  permit  the  fact  of  the  insurance  to  be  brought  to  the  jury's  atten- 
tion by  questions  asked  in  the  examination  of  witnesses,  by  remarks 
of  counsel  in  argument,  or  by  questions  asked  of  jurors  while  they 
are  being  impaneled.  For  the  reason  stated,  we  think  cases  may 
exist  in  which  such  questions  may  properly  be  permitted  in  deter- 
mining the  qualifications  of  the  jurors,  and  that  in  the  present  case 
it  does  not  appear  that  the  court's  discretion  was  improperly  exer- 
cised.^^ 


'^Compare  Meyer  v.  Gimdloch-Nelson  Mfg.  Co.,  67  Mo.  App.  389 
(1896)  ;  Spoonick  v.  Backus-Brooks  Co.,  89  Minn.  354  (1903)  ;  Foley  v. 
Cudahy  Packing  Co.,  119  Iowa  246,  93  N.  W.  284  (1903)  ;  Swift  v.  Platte, 
68  Kans.  i,  ^2  Pac.  276,  74  Pac.  635  (1903);  Grant  v.  National  R.  Spring 
Co.,  100  App.  Div.  234,  91  N.  Y.  S.  805  (1905)  ;  Faber  v.  Reiss  Coal  Co., 
124  Wis.  554,  102  N.  W.  1049  (1905)  ;  Vindicator  Consol.  Gold  Min.  Co.  v. 
Firstbrook,  36  Colo.  498,  86  Pac.  313  (1906)  ;  Granrus  v.  Croxton  Min.  Co., 
102  Minn.  325,  113  N.  W.  693  (1907)  ;  Brtisseau  v.  Lover  Brick  Co.,  133  Iowa 
24s,  no  N.  W.  577  (1907)  ;  Blair  v.  McCormack  Const.  Co.,  123  App.  Div. 
30,  107  N.  Y.  S.  750  (1907)  Aff.  193  N.  Y.  520;  Rinklin  v.  Acker,  125  N.  Y. 
App.  Div.  244,  109  N.  Y.  S.  125  ( 1908)  ;  Sailer  v.  Friedman  Bro.  Shoe  Co., 
130  Mo.  App.  712,  109  S.  W.  794  (1907)  ;  Beeler  v.  Butte  &  London  Copper 
Development  Co.,  41  Mont.  465,  no  Pac.  528  (1910)  ;  Heydman  v.  Red  Wing 
Brick  Co.,  112  Minn.  158,  127  N.  W.  561  (1910)  ;  Kenny  v.  Marquette  Cement 
Co.,  243  III.  396,  90  N.  E.  724  (1910);  Odell  v.  Genessee  Const.  Co.,  145 
App.  Div.  125,  129  N.  Y.  S.  122  (1911);  Pckin  Stove  &  Mfg.  Co.  v. 
Ramey,  104  Ark.  i,  147  S.  W.  83  (1912)  ;  Featherstone  v.  Lowell  Cotton 
Mills,  159  N.  Car.  429,  74  S.  E.  918  (1912)  ;  Citizens  Light,  Heat  &  Power 
Co.,  V.  Lee,  182  Ala.  561,  62  So.  199  (1913)  ;  Walters  v.  Durham  Lumber  Co., 
165  N.  Car.  388,  81  S.  E.  388  (1914)  ;  Egner  v.  Cxirtis  T.  &  P.  Co.,  96  Nebr. 
18,  146  N.  W.  1032  (1914)  ;  Inland  Steel  Co.  v.  Gillespie,  181  Ind.  633,  104  N.  E. 
76  (1914)  with  Lipschuts  v.  Ross,  84  N.  Y.  S.  632  (1903)  ;  Stratton  v.  Nichols 
Lumber  Co.,  39  Wash.  323,  81  Pac.  831  (1905)  ;  Harry  Bros.  Co.  v.  Brady 
(Tex.  Civ.  App.)  86  S.  W.  615  (1905)  ;  Howard  v.  Beldenville  L.  Co.,  129 
Wis.  98,  108  N.  W.  48  (1906)  ;  Chybowski  v.  Bucyrus  Co.,  127  Wis.  332,  106 
N.  W.  833  (1906)  ;  Hoyt  v.  Davis  Mfg.  Co.,  112  App.  Div.  755,  98  N.  Y.  S. 
1031  (1906)  ;  Actitus  v.  Spring  Valley  Coal  Co.,  246  111.  32,  92  N.  E.  579 
(1910)  ;  Pierce  v.  United  Gas  &  E.  Co.,  161  Cal.  176,  n8  Pac.  700  (1911)  ; 
Armstrong  v.  Yakima  Hotel  Co.,  75  Wash.  477,  135  Pac.  233  (1913)  ;  Mithen 
V.  Jeffrey,  259  111.  2,72,  102  N.  E.  778  (1913)  ;  Houston  Car  Wheel  &  Machine 
Co.  V.  Smith,  (Tex.  Civ.  App.)  160  S.  W.  435  (1913)  ;  Putnam  v.  Pacific 
Monthly  Co.,  68  Ore.  36,  130  Pac.  986,  136  Pac.  835  (1913)  ;  Rothenberg 
v.  Collins,  161  App.  Div.  387,  146  N.  Y.  S.  762  (1914)  ;  Duncan  Coal  Co. 
V.  Thompson,  137  Ky.  304,  162  S.  W.  n39  (1914)-  See  also.  Hollis  v.  United 
^MesGlas£_£Q^^j22QjE^:_jQj_6QAtl.  55  (1908);  Simpson  v.  Foundation  'Co., 
201  N.  Yr479,  95  N.  E.  10  (igH) ;  Curran  v.  Larch,  243  Pa.  247,  90  Atl. 
62  (1914). 


2,62  TRIAL 

MOORE  V.  CASS. 

Supreme  Court  of  Kansas,  1872. 

10  Kans.  288. 


A 


Action  by  Cass  to  recover  from  Moore  the  value  of  a  horse 
hired  by  him  and  claimed  by  plaint! iT  to  have  died  in  consequence 
of  Moore's  negligence.  Verdict  and  judgment  for  plaintiff.  Defend- 
ant brings  error.^° 

Kingman,  C.  J. :  The  remaining  error  urged  arose  on  this  state 
of  facts:  John  Donnelley,  one  of  the  jurors  who  tried  the  case, 
upon  his  examination  under  oath  as  to  his  qualifications  as  a  jury- 
man, stated  tliat  he  was  acquainted  with  the  plaintiff,  but  not  inti- 
mately acquainted  with  him ;  that  he  knew  nothing  about  the  case 
and  had  not  formed  or  expressed  an  opinion  as  to  it.  After  the  trial 
five  affidavits  were  read  showing  the  acquaintance  between  the 
plaintiff  and  tlie  juror,  and  which  the  plaintiff  in  error  claims 
show  an  intimate  acquaintance.  Neither  an  acquaintance  nor  an 
intimate  acquaintance  with  a  party  to  a  suit  renders  a  juror  incom- 
petent. It  does  not  necessarily  show  that  the  juror  would  not  be 
impartial.  It  would  depend  on  tlie  moral  character  of  the  man,  and 
his  mental  organization,  what  effect  his  intimacy  might  have  on  his 
judgment,  even  if  this  intimacy  is  caused  by  strong  friendship,  which 
is  not  always  the  case.  Intimacy  frequently  grows  out  of  business 
relations,  and  is  strengthened  by  habit,  and  may  exist  with  envy  and 
dislike.  This  may  not  be  a  very  amiable  feature,  but  it  is  true.  The 
fact  of  intimacy  does  not  of  itself  disqualify  a  man  as  a  juror,  though 
in  most  cases  it  would  cause  a  peremptory  challenge  of  such  a  man. 
The  most  that  can  be  claimed,  then,  is  that  the  answers  of  the  juror 
misled  the  counsel  by  their  falsehood.  It  is  not  necessary  to  inquire 
whether  tliat  would  be  a  good  cause  for  a  new  trial,  because  we 
are  not  convinced  that  the  facts  stated  show  even  an  intimate 
acquaintance  with  the  plaintiff  on  the  part  of  the  juror.  It  is  shown 
tliat  he  frequented  the  saloon  of  the  plaintiff  as  often  as  once  a 
week ;  had  been  seen  to  drink  there,  and  with  the  plaintiff,  and  had 
played  cards  in  the  same  company,  and  these  acts  had  continued  for 
a  year  or  more  before  the  trial.  Now  all  these  facts  hardly  show  an 
intimate  acquaintance.  Certainly  the  facts  may  exist  without  any 
intimacy.  Again,  what  constitutes  intimate  acquaintance  is  not  so 
cleary  defined  in  men's  minds  that  the  juror  might  not  truthfully 
say  that  he  had  no  intimate  acquaintance  with  the  plaintiff,  even  if 
counsel  should  think  otherwise  on  the  same  facts.  We  can  not  say 
from  the  record  that  the  juror  answered  untruthfully,  and  so  all 
semblance  of  error  on  this  point  vanishes.  The  motion  for  a  new 
trial  was  properly  overruled.*^ 

Judgment  affirmed. 


^'The  statement  of  facts  is  abridged  and  the  argument  and  part  of  the 
opinion  of  the  court  are  omitted. 

""Mere  acquaintance  of  the  jurors  with  a  Htigant  does  not  imply  hi;iS 
by  them  in  his  favor  any  more  than  it  raises  a  presumption  of  prejudice." 
Perkins  v.  Sunset  Tel.  &  T.  Co.,  155  Cal.  713,  103  Pac.  190  (1909).   Accord: 


f 


GARTHWAITE,    GRIFFIN    &    CO.  'v.    TATUM  363 

GARTHWAITE,  GRIFFIN  &  CO.  v.  TATUM. 

Supreme  Court  of  Arkansas,  i860.  rlA>|LAA.>^ 

21  Ark.  336.  Vi 


Fairchild,  J. :  This  case  was  brought  here  by  appeal  from  a 
judgment  for  the  defendant  below,  the  appellee  here.  It  is  like  the 
case  of  Gould  v.  Tafum,^^  just  decided,  being  an  action  of  debt 
upon  a  note  executed  at  the  same  time  with  the  note  in  that  case, 
in  which  the  issues  were  tlie  same.  The  same  testimony  of  Wliitt 
and  Lee  was  given  in  this  case,  as  in  the  other,  and  under  like  cir- 
cumstances. A  similar  motion  for  a  new  trial  similarly  met,  and  with 
like  result,  as  shown  in  the  transcript.  There  was  no  such  evidence 
as  that  of  the  endorsement  on  the  note,  and  the  reading  of  the  declar- 
ation in  the  other  case. 

The  case  of  Gould  v.  Tatum  was  first  tried;  upon  tlie  next  day 
this  case  was  called,  and  the  same  jurors  that  tried  that  case  were, 
brought  to  try  this  case.    It  was  admitted  by  the  parties  that  the) 
issues  were  the  same  as  in  that  case,  and  that  the  evidence  would  be; 
the  same,  except  the  note  sued  on,  and  the  plaintiffs  objected  to  the 
proposed  jurors  as  disqualified  from  sitting  as  a  jury  in  this  case. 
The  court  overruled  the  objection. 
y^C      By  their  verdict  in  the  other  case,  the  jurors  had  formed  and 
(    \  expressed  their  opinion  upon  this  case.   And  tlie  fact  that  this  was 
done  on  oath,  after  hearing  all  the  facts  and  after  full  deliberation 
thereon,  amid  the  solemnities  and  under  the  direction  of  judicial 
proceedings,  could  have  no  other  effect  than  to  incline  them  to  ren- 
der such  verdict  as  they  had  rendered  the  day  before.    The  law  | 
presumes  them  to  have  been  under  a  disqualifying  bias,  and  the  ob- 
jection  of  the  plaintiff  should  have  been  sustained.*^  i 

Judgment  reversed. 

McFaddcn  v.  Wallace,  38  Cal.  51  (1869)  ;  Lavender  v.  Hudgens,  32  Ark. 
763  (1878)  ;  Chesapeake  &  O.  R.  Co.  v.  Smith,  103  Va.  326,  49  S.  E.  487 
(1905);  Decker  v.  Laws,  74  Ark  286,  85  S.  W.  425  (1905).  But  a  juror 
should  be  excluded  where  it  appears  that  his  friendship  or  enmity  for  a 
party  would  weigh  in  the  determination  of  the  case.  March  v.  Portsmonth 
&  C.  R.,  19  N.  H.  372  (1849)  ;  McLaren  v.  Birdsong,  24  Ga.  265  (1858)  ; 
Biiddee  v.  Spongier,  12  Colo.  216,  20  Pac.  760  (1888)  ;  C ommonweaUh^v . 
Mosier.  135  Pa.  St.  221.  iq  Atl.  943  (1890)  ;  Stinson  v.  Sachs,  a  vVasH^  391, 
30  Pac.  287  (1894)  ;  Omaha  &  R.  V.  R.  Co.  v.  Cook,  2,7  Nebr.  435,  55  N.  W. 
943  (1893) ;  Omaha  St.  R.  Co.  v.  Craig,  39  Nebr.  601,  58  N.  W.  209  (1894)  ; 
Texas  Cent.  R.  Co.  v.  Blanton,  36  Tex.  Civ.  App.  307,  81  S.  W.  537  (1904)  ; 
State  V.  Caron,  118  La.  349,  42  So.  960  (1907)  ;  Grand  Lodge  v.  Taylor,  44 
Colo.  373  (1908).  Compare  Onions  v.  Nash,  7  Price  205  (1819).  As  to 
bias  see  Chicago  &  A.  R.  Co.  v.  Adler,  56  111.  344  (1870)  ;  IVinnesheik  Ins. 
Co.  V.  Schneller,  60  111.  465  (1871)  ;  Richmond  v.  Roberts,  98  111.  472  (1881)  ; 
U.  S.  Rolling  Stock  Co.  v.  Weir,  96  Ala.  396,  11  So.  436  (1891)  ;  People 
V.  Star  Co.,  135  App.  Div.  517,  120  N.  Y.  S.  498  (1909). 

"-21  Ark.  239   (i860). 

"At  common  law  the  fact  that  a  juror  had  rendered  a  verdict  on  a 
previous  trial  of  the  same  case  was  ground  for  principal  challenge.  Y.  B. 
33  Hen.  VI.,  i ;  Long's  Case,  Cro,  Eliz.  33  (1583)  ;  Argent  v.  Darrell,  2  Saik. 


364 


TRIAL 


^"  GOTTLIEB  SCILAIIDT  t:  NEW  YORK  MUTUAL  FIRE 
r  INSURANCE  CO. 

Supreme  Judicial  Court  of  Massachusetts,  1854. 

67  Ahiss.   529. 

Action  of  contract  on  a  policy  of  insurance  on  the  plaintiff's 
tl\vellin£i:  house,  barn,  etc.,  against  loss  by  fire.  The  defense  was 
that  plaintiff  purposely  set  fire  to  the  property  insured.  Counsel  for 
the  plaintiff  in  his  closing  argument  having  stated  his  belief  that  some 
of  the  jury  knew  personally  that  two  of  the  defendant's  witnesses 
were  not  worthy  of  belief, 'the  court  instructed  the  jury  that  they 
could  take  into  consideration  all  the  evidence  they  had  heard  as  to 
the  character  and  standing  of  any  of  the  witnesses;  but  that  any 
particular  knowledge  of  any  facts,  such  as  the  generally  infamous 
character  of  any  of  the  defendant's  witnesses,  not  testified  to,  or 
otherwise  appearing  in  the  cause,  not  within  the  common  knowledge 
of  all  tlie  jurors,  not  being  open  to  comment  on  the  part  of  the  de- 
fendant's counsel,  or  to  instruction  on  the  part  of  the  court,  but 
which  was  in  possession  merely  of  some  one  or  more,  but  not  the 
whole  of  the  jury,  could  not  fairly  be  taken  into  view  by  the  jury, 

648  (1699);  Herndon  v.  Bradshaw,  4  Bibb  (Ky.)  45  (1815)  ;  J^loyd  v. 
Xourse.  2  Ijaade  (Pa.)  49  (1829)  ;  Weeks  v.  Mcdlcr,  20  Kans.  57  (1878)  ; 
Dothard  vTDcnson,  72  Ala.  S41  (1882);  Ihint  V.  Columbia  City,  122  Mo. 
App.  31,  97  S.  W.  955  (1906)  ;  Cliarlestoti  &  W.  C.  R.  Co.  v.  Atiaii-ay,  7 
Ga  App  231  66  S.  E.  548  (1909),  so  also  where  the  former  trial  resulted 
in  a  disapreement.   Scott  v.  McDonald,  83  Ga.  28,  9  S.  E.  770  (1889)  ;  Hester 

V  Chambers,  84  Mich.  "^62,  48  N.  W.  152  (1891).  Contra:  JFIiitticr  v.  Ham- 
lin, 12  Fla.  18  (1867)  ;  Atkinson  v.  Allen,  12  Vt.  619,  36  Am.  Dec.  361  (1839). 
So  one  who  had  served  as  a  grand  juror  on  the  finding  of  an  mdictment 
is  disqualified  from  sending  as  a  juror  on  the  trial  for  the  offense  or  the 
trial  of  a  civil  action  arising  out  of  the  offense.    Y.  B.  7  Edw.  IV.,  4;  Roy 

V  Godfry,  l  Sid.  243  (1676);  Rogers  v.  Lamb,  3  Blackf.  (Ind.)  155  (1832)  ; 
Spear  v  'Spencer,  i  Greene,  Iowa  534  (1848)  ;  McGehee  v.  Shafer,  9  Tex.  20 
(1852)  ;  Hail-kins  v.  Andrczvs,  39  Ga.  118  (1869)  ;  Mcdlock  v.  Commissioners. 
115  Ga.  337,  41  S.  E.  579  (1902);  Ryan  v.  State,  10  Ohio  C.  C.  (N.  S.) 
497   (1908).  .... 

Where  two  cases  arise  out  of  the  same  transaction,  mvolve  the  same 
issues  and  are  to  be  decided  upon  the  same  evidence,  a  juror  who  has  tried 
the  first  case  may  be  challenged  in  the  second.  Grady  v.  Early,  18  Cal.  108 
(1861)  ;  Baker  v.  Harris,  i  Winst.  (N.  Car.)  277  (1864)  ;  Swarnes  v.  Sition, 
S8  III  155  (1871);  Apperson  v.  Longivood,  12  Heisk.  (Tenn.)  262  (1873); 
\mith  V.  State,  55  Ala.  i  (1876)  ;  IVeeks  v.  Lyndon,  54  Yt.  638  (iSSi) ;  Ste- 
phens V.  State,  53  N.  J.  L.  245,  21  Atl.  1038  (1891)  ;  Railway  Co.  v.  Smith,  60 
Ark.  221  (1895)^,  and  see  Schallman  v.  Royal  Ins.  Co.,  94  111.  App.  364  (1901). 
But  a  juror  is  not  rendered  incompetent  to  sit  in  a  case  merely  because  he  has 
previously  sat  in  a  case  for  a  similar  cause  of  action  and  depending  upon  the 
same  general  considerations.  Algier  v.  Steamer  Marie,  14  Cal.  167  (1859)  ; 
Nugent  v.  Trepagnier,  2  Martin  (La.)  (O.  S.)  205  (1812)  ;  Sjmth  y  Jlagen- 
^ellcr  21  Pa.  St.  491(1853)  ;  Dew  v.  McDivitt,  31  Ohio  St.  139  (1876)  ;  thari- 
ton  Plow  Co'^nJImFK^ti  Nebr.  384.  20  N.  W.  268  (1884)  ■,Comm.  y.  Toth, 
145  Pa.  308,  22  Atl.  157  (1891)  ;  Central  R.  &  B.  Co.  v.  Oglctrce,  97  <ja.  325, 
2^^  \Lrwnri^^Tr Jennings  v.  Heinroth,  71  111.  App.  664  (1897)  ;  Doyle  v. 
Offut,  135 'Ky.  296  (1909)  ;  Manhattan  Bldg.  Co.  v.  Seattle,  52  Wash  226,  100 
Pac.  330  (1909)  ;  Commonwealth  v.  IVasson,  42  Super.  Ct.  38  (1910)- 


SCHMIDT   V.    NEW   YORK    MUT.    F.    INS.    CO.  365 

and  should  have  no  influence  on  their  minds  in  making  up  their 
verdict.    Verdict  for  defendants.    Plaintiff  excepts.^* 

Dewey,  J. :  It  was  undoubtedly  the  ancient  doctrine  that  jurors 
were  to  render  their  verdict  as  Vv^ell  upon  facts  within  their  personal 
knov/ledge,  as  upon  those  derived  from  the  testimony  of  the  wit- 
nesses duly  sworn  and  testifying  in  the  case.  3  Bl.  Comm.  374,  The 
practice  of  taking  jurors  from  the  vicinage  seems  to  have  been 
adopted  under  tlie  notion  that  they  might  thus  be  the  better  qualified 
from  their  personal  acquaintance  with  the  facts,  the  parties  and  their 
v»'itnesses,  to  decide  the  cases  that  might  be  brought  them.  But  at 
the  present  day  it  is  thought  a  greater  object,  and  more  likely  to  se- 
cure the  due  administration  of  justice,  to  submit  cases  to  impartial 
and  unbiased  jurors ;  and  that  those  are  less  likely  to  be  so  who  have 
come  from  the  immediate  neighborhood  of  the  parties,  and  have 
been  either  eye  witnesses  to  the  facts,  or  have  had  their  minds  im- 
bued with  the  popular  feeling  as  to  the  merits  of  the  controversy. 

With  this  change  as  to  the  proper  qualifications  of  a  juror,  it 
has  very  naturally  come  to  be  well  settled  that  a  juror  can  not  give 
a  verdict  founded  on  facts  in  his  own  private  knowledge.  If  the 
juror  knows  any  particular  fact  material  to  the  proper  decision  of 
the  case,  he  ought  to  be  sworn  as  a  witness  in  open  court,  and  be 
publicly  examined,  so  that  his  evidence,  like  that  of  other  v/itnesses, 
may  first  be  scrutinized  as  to  its  competency  and  bearing  upon  the 
issue,  and  for  the  further  reason  that  the  court  and  the  parties  may 
know  upon  what  evidence  the  verdict  was  rendered,  i  Stark.  Ev. 
499  is  direct  to  this  point.  The  views  of  this  court  in  the  cases  of 
Parks  V.  Boston,  15  Pick.  (Mass.)  209,  210;  Patterson  v.  Boston, 
20  Pick.  (Mass.)  166,  and  Murdoch  v.  Sumner,  2.2  Pick.  (Mass.) 
156,  in  all  which  the  subject  was  somewhat  considered  fully  accord 
witli  the  principle  above  stated.  A  distinction  was  taken  in  those 
cases  as  to  the  juror's  applying  his  own  general  knowledge  and  ex- 
perience to  the  examination  of  the  case,  in  estimating  the  weight  of 
the  evidence  and  in  assessing  damages.  While  to  this  extent  the 
juror  may  properly  call  to  his  aid  his  personal  knowledge,  learning 
and  experience,  as  was  properly  held  in  those  cases,  yet  no  sanction 
was  given  to  his  acting  upon  his  knowledge  of  a  particular  fact, 
knovv-n  only  to  himself,  and  not  a  matter  of  common  observation  or 
general  knowledge.*^ 

Exceptions  overruled. 


"  The  statement  o£  facts  is  abridged  and  the  argument  of  counsel  and 
part  of  the  opinion  of  the  court  are  omitted. 

"Accord:  Bennct  v.  Hartford  Hundred,  Style,  223  (1650);  Wright  v. 
Crump,  7  Mod.  I  (i702'>  :  Briinxnn  v.  Graham.  2  Yeates  (Pa.)  166  (1796); 
Ottovja  Gas  Light  &  Coke  ~Co.  v.  Graham,  28  111.  73,  81  Am.  Dec.  263  (1862)  ; 
SimMpn  \'-  Kent,  gPhWajF'd.)  30  (1871)  ;  Griffin  v.  Ilarriman,  74  Iowa  436, 
38  NrW.  139  (i«88)  ;  IVinslow  v.  Morrill,  68  Maine  362  (1878)  ;  Garside  v. 
Ladd  Watch  Case  Co.,  17  R.  I.  691,  24  Atl.  470  (1892).  Compare  Kitsinger  v. 
.Sanborn,  70  111.  146  (1873)  ;  State  v.  Maine  Cent.  R.  Co.,  86  Maine  ^09,  29  Atl. 
1086  (1894). 

_  "A  juror  having  knowledge  of  incidental  facts,  or  those  collateral  to  the 
main  issue  of  the  case,  is  not  thereby  rendered  incompetent  to  rJt  in  that 
case.    But,   where  tlie  juror  has  such  knowledge  of  material   facts  as  will 


366  TRIAL 


r 


ARCHIMEDES  SMITH  v.  TIMOTHY  D.  EAMES. 

Supreme  Court  of  Illinois,  1841. 

4  ///.  76. 


Breese,  J.:  This  was  an  action  of  assumpsit,  brought  in  the 
Morgan  Circuit  Court,  by  Eames  against  Smith,  in  which  a  judg- 
ment was  rendered  for  the  plaintiff,  from  which  an  appeal  was  taken 
to  this  court.**' 

As  to  the  first  point,  the  bill  of  exceptions  taken  in  the  cause, 
states,  tliat  upon  calling  a  jury,  after  the  defendant  had  exhausted 
his  peremptory  challenges,  Joseph  T.  Taggart  was  called  as  a  juror, 
and  upon  being  questioned  by  defendant's  attorney,  whether  he  had 
formed  and  expressed  an  opinion  in  relation  to  the  right  of  the  plain- 
tiff to  recover,  answered  that  he  had  both  formed  and  expressed  an 
opinion.  Upon  being  asked,  by  plaintiff's  counsel,  whether  he  had 
formed  his  opinion  from  conversing  with  the  witnesses,  or  from  his 
own  knowledge  of  the  facts,  or  from  information  derived  from  the 
parties,  or  from  rumor,  he  answered,  from  rumor.  Upon  being 
asked,  by  defendant's  attorney,  whether  he  knew  who  the  witnesses 
were,  he  said  he  did  not.  Upon  being  asked,  by  the  defendant's 
counsel,  whether  he  still  entertained  the  opinion  he  had  heretofore 
formed,  as  to  which  party  ought  to  succeed  in  the  matter,  he  an- 
swered, he  did,  if  what  he  had  heard  was  true.  The  juryman  was 
not  interrogated  as  to  his  belief  of  the  truth  of  the  rumors  to  which 
he  referred,  as  the  bill  of  exceptions  states.  The  defendant's  at-j 
torney  challenged  him  for  cause,  which  the  court  disallowed,  andi 
he  was  sworn  as  a  juror. 

In  support  of  the  challenge,  the  appellant's  counsel  has  referred 
to  Co.  Litt.  157  a.  b. ;  2  Peter's  Cond.  R.  499-5oo;  2  Johns.  (N.  Y.) 
194;  7  Cow.  (N.  Y.)  122 ;  Buller's  N.  P.  307;  i  Johns.  (N.  Y.)  316; 
I  Cow.  (N.  Y.)  432;  I  Swift's  Dig.  737;  i  Burr's  Trial  41,  43,  370, 
419;  4  Wend.  (N.  Y.)  238,  241 ;  9  Pick.  (Mass.)  496;  Breese  (111.) 
29;  Hilliard's  Dig.  182. 

The  counsel  for  the  appellee,  to  sustain  the  decision  of  the  circuit 

tend  to  bias  his  opinion,  he  is  incompetent  to  sit  in  that  case.  This  rule  has 
been  asserted  even  \shere  the  juror  swears  that  he  is  unbiased.  In  the  appli- 
cation of  this  rule  it  seems,  therefore,  to  be  a  question  addressed  to  the 
sound  discretion  of  the  court,  and  if  the  inference  is  strong,  or  the  pre- 
sumption great,  that  the  knowledge  on  the  part  of  the  juror  is  such  as  will 
affect  the  verdict,  a  challenge  for  cause  should  be  sustained."  63  L.  R.  A.  812, 
note  to  State  v.  Stcntz,  30  Wash.  134,  70  Pac.  241,  63  L.  R.  A.  807  (1902). 
Compare  Blake  v.  MUlspaugh,  i  Johns.  (N.  Y.)  316  (1806)  ;  Laverty  v.  Gray, 
3  Mart.  (La.)  (O.  S.)  617  (18x5)  ;  Lord  v.  Brou.'n,  5  Den.  (N.  Y.)  345  (1848)  ; 
Trout  V  IVilliams,  29  Ind.  18  (1867)  ;  Buddee  v.  Spongier,  12  Colo.  216,  20  Pac. 
760  (1888)  ;  Harris  v.  State,  24  Nebr.  803,  40  N.  W.  317  (1888)  ;  Johnson  v. 
Park  City  27  Utah  420,  76  Pac.  216  (1904),  with  Diirell  v.  Mosher,  8  Johns.  445 
(1811)  •  Harjer  v.  Kean.  n  Serg.  &  R.  (Pa.)  280  (1824)  ;  Royston  v.  Royston. 
21  Ga  161  (1857)  ;  Burlington  &  M.  K.  Co.  v.  Beehe,  14  Nebr.  463  (1883)  ; 
Cradle  v.  Hoffman,  105  111.  (1882)  ;  Deldaney  v.  Salina,  34  Kans.  532,  9  Pac. 
271    (1886).  .  .      , 

"  Part  of  the  opinion  upon  another  pomt  is  omitted. 


SMITH    V.    EAMES  367 

court,  relies  upon  the  case  of  Durrell  v.  Mosher,  8  Johns.  445,  3rd 
ed. ;  6  Cow.  (N.  Y.)  564;  7  Cow.  (N.  Y.)  122,  123;  i  Burr's  Trial 
369,  370,  380.  38 1 »  408  (note),  418;  I  Cow.  (N.  Y.)  438. 

We  have  carefully  examined  all  the  cases  referred  to,  with  a 
desire  to  arrive  at  some  rule  Vv^hich  shall  be  suited  to  our  condition, 
which  can  be  practically  enforced,  and  which  shall  do  no  violence  to 
the  right  of  every  person  to  a  fair  and  impartial  trial  by  jury.  There 
is  not  a  perfect  coincidence  of  views  in  the  several  cases  referred  to, 
nor  entire  harmony  of  opinion.  The  old  rule  was,  that  the  more  a 
person  knev/  of  the  facts,  of  his  own  knowledge,  the  better  qualified 
v/as  he  to  perform  the  functions  of  a  juror.  The  doctrine  now  is, 
in  England,  that  if  a  juror  has  declared  that  the  prisoner  is  guilty,  or 
will  be  hanged,  or  the  like,  if  made  out  of  ill  will  to  him,  it  is  good 
cause  of  challenge ;  but  if  it  was  made  from  personal  knowledge  of 
the  facts  in  the  cause,  it  is  no  ground  of  challenge. 

The  leading  case  in  this  country  upon  tliis  subject,  is  that  of 
Burr,  indicted  for  treason.  The  opinions  and  resolutions  of  Chief 
Justice  Marshall,  who  tried  the  case,  upon  the  various  objections 
made  to  jurors,  as  they  were  called,  have  been  received  favorably 
by  all  the  courts  of  the  several  states,  and  it  will  not  be  difficult, 
aided  by  the  light  which  his  brilliant  mind  has  shed  upon  the  sub- 
ject, to  come  to  a  conclusion,  correct  in  principle,  and  calculated  to 
promote  justice.  For  this  purpose,  it  will  be  unnecessary  to  enter 
into  an  elaborate  review  of  all  the  cases  cited,  but  to  state  simply  the 
general  conclusions  to  which  they  all  tend,  and  that  is,  that  a  juror 
is  disqualified,  if  he  has  expressed  a  decided  opinion  upon  the 
merits  of  the  case.  If,  without  any  qualifications  whatever,  a  juror 
says  the  defendant  is  guilty,  or  the  like,  or  that  the  plaintiff  ought  to 
recover  in  the  action,  or  that  the  verdict  ought  to  be  against  the 
plaintiff,  he  would  be  disqualified,  as  not  standing  impartial  betweenj 
the  parties. 

If,  on  the  contrary,  a  juror  says  that  he  has  no  prejudice  or  bias'^^ 
of  any  kind  for  or  against  either  party ;  that  he  has  heard  rumors  in( 
relation  to  the  case,  but  has  no  personal  knowledge  of  the  facts ;  and, ' 
from  the  rumors,  has  formed  and  expressed  an  opinion  in  a  particu- 
lar way,  if  they  are  true,  without  expressing  any  belief  in  their) 
truth,  we  should  think  he  would  not  be  disqualified.  By  hearing  re- 
ports of  a  case,  not  from  the  witnesses,  nor  from  the  parties,  but 
from  common  fame,  and  making  up  an  opinion  on  them,  the  juror 
has  not  prejudged  the  case,  unless  the  case  should  turn  out  to  be 
precisely  as  the  rumors  were,  a  thing  very  improbable;  he  has  ad- 
judged only  the  rumors,  varying  in  their  hue  and  color  as  they 
circulate  through  the  country.  The  human  mind  is  so  constituted, 
that  it  is  almost  impossible,  on  hearing  a  report  freely  circulated  in  a 
county  or  neighborhood,  to  prevent  it  from  coming  to  some  conclu- 
sion on  the  subject;  and  this  will  always  be  the  case  while  the  mind 
continues  to  be  susceptible  of  Impressions.  If  such  impressions  be- 
come fixed,  and  ripen  into  decided  opinions,  they  will  influence  a 
man's  conduct,  and  will  create,  necessarily,  a  prejudice  for  or  against 
the  party  towards  whom  they  are  directed,  and  should  disqualify  him 
as  a  juror. 


368  TRIAL 

Opinions  arc  formed  in  different  ways:  with  some,  their  pre- 
conceived prejudices  arc  their  opinions;  with  others,  a  current 
rumor  fixes  their  hchcf ;  with  another  class,  the  most  idle  gossipinsf 
is  received  as  truth  itself;  while  others  hesitate  long,  and  demand 
testimony,  before  they  will  assent  or  dissent.  Taking  mankind  as  we 
lind  them  it  may  not  be  unreasonable  to  believe,  that  by  far  the 
greater  part  come  to  no  certain  conclusion  on  a  statement  of  facts, 
until  they  have  evidence  of  their  existence,  though  they  may  have 
impressions  in  regard  to  them,  which,  if  not  carefully  examined, 
might  seem  to  be  fixed  opinions,  and  when  called  on,  it  would  be  so 
stated.  A  distinction  must  be  made  between  such  impressions  and 
opinions,  and  in  this  consists  the  rule. 

In  the  case  of  TJie  People  v.  Mather,^''  the  court  says,  "There  is 
no  difference  between  an  opinion  formed  by  being  an  eye-witness  of 
a  transaction,  or  by  hearing  the  testimony  of  those  who  were  such 
witnesses,  and  an  opinion  founded  upon  rumors  and  newspaper  pub- 
lications." This  is  true  if  a  decided  opinion  is  formed,  for  it  matters 
not  how,  or  upon  what  it  is  formed,  whether  upon  rumors  or  per- 
sonal knowledge,  so  that  it  is  an  opinion.  But  there  are  grades  of 
opinion.  That  which  the  public  instinctively  forms,  upon  the  hap- 
pening of  any  striking  occurrence,  or  of  those  matters  which  are 
current  topics  of  remark,  should  be  distinguished  from  those  delib- 
erate convictions  of  the  mind  which  are  produced  by  maturely  con- 
sidering the  f-acts  and  circumstances  of  a  case,  and  which  regulate 
a  man's  conduct,  or  prompt  him  to  action.  If  a  person,  without  any 
knowledge  of  the  facts,  upon  the  faith  of  rumor  alone,  forms  a  de- 
liberate opinion,  and  is  convinced,  without  any  evidence,  he  is  not 
fit  to  judge  his  fellows. 

But  if,  in  obedience  to  the  laws  of  his  organization,  his  mind  re- 
ceives impressions  from  the  reports  he  hears,  which  have  not  become 
fixed  and  decided,  though  they  may  seem  to  be  at  first,  he  would  not 
be  disqualified,  and  this  is  in  accordance  with  the  views  expressed  by 
Chief  Justice  jMarshall  in  Burr's  case.  He  says,  "Light  impressions, 
which  may  be  supposed  to  yield  to  the  testimony  that  may  be  offered, 
Nvhich  may  leave  the  mind  open  to  a  fair  consideration  of  that  testi- 
jrnony,  constitute  no  sufficient  objection  to  a  juror;  but  that  those 
strong  and  deep  impressions  which  will  close  the  mind  against  the 
testimony  that  may  be  offered  in  opposition  to  them,  which  will 
combat  that  testimony  and  resist  its  force,  do  constitute  a  sufficient 
objection  to  him."*^ 

We  take  it,  then,  as  settled,  that  the  opinion  which  is_to  dis- 
qualify, must  be  a  decided  one,  not  an  impression  merely/wHich 
rumor  may  have  produced,  and  which  another  report  may  dissipate. 
The  opinion  must,  also,  be  a  positive  one,  not  depending  upon  any 
contingency,  not  hypothetical.  All  the  cases  referred  to,  recognize 
this  distinction.  In  Diirrell  v.  Mosher,*^  it  w'as  held,  that  where  a 
juror,  on  being  called  up,  said  he  had  no  personal  knowledge  of  the 
matters  in  dispute,  but  that  if  the  report  of  the  neighbors  was  cor- 

*'  4  Wend.  (N.  Y.)  241  (1830). 

"i  Burr's  Trial  416. 

*'8  Johns.  (X.  Y.)  445   (1811). 


SMITH   V.    EAMES  369 

rect,  the  defendant  was  wrong,  and  the  plaintiff  was  right,  was  quah- 
tied ;  for  the  reason  that  the  opinion  was  not  a  fixed  and  positive 
one,  that  it  depended  on  the  hypothesis  of  the  truth  of  the  reports. 
This  case  has  never  been  overruled,  and  is  approved  by  all  the  sub- 
sequent cases.  It  establishes  the  principle,  and  for  good  reasons,  that 
there  must  be  a  decided  conviction  of  the  mind,  on  the  facts,  before 
the  juror  can  be  considered  as  having  formed  an  opinion  which  will 
disqualify.  Here  the  juror  showed  which  way  his  opinion  was,  if 
the  reports  were  true,  that  he  was  against  the  defendant,  who  had 
challenged  him.  In  the  case  before  the  court,  this  does  not  appear. 
It  is  not  shown  by  the  record,  how  the  opinion  of  the  juror  was, 
whether  for  or  against  the  party  challenging  him ;  and  it  can  not  be 
known  whether  the  party  challenging  was  prejudiced  by  his  being 
sworn.  In  most  of  the  cases  cited,  the  opinion  of  the  juror  was  made 
known,  as  in  the  case  in  7  Cow.  (N.  Y.)  381.  There  the  juror  had 
heard  the  witnesses  in  a  former  trial  of  the  same  cause,  and  had 
made  up  his  mind  conclusively,  that  the  defendants  were  guilty;  and 
he  had  freely  expressed  this  opinion.  It  is,  however,  the  opinion  of 
the  majority  of  the  court,  that  this  circumstance  should  make  no 
difference  in  the  principle.  A  party  ought  not  be  compelled  to  abide 
the  risk  of  the  opinion  which  may  be  formed,  being  adverse  to  him,  it 
being  considered  sufficient  that  he  has  formed  and  expressed  an 
opinion. 

It  is  not  perceived  that  the  case  at  the  bar,  differs  in  any  essential 
particulars  from  the  case  of  Durrell  v.  Mosher.  Taking  the  whole 
statement  of  the  juror  in  connection,  he  said  he  had  formed  and  ex- 
pressed an  opinion  from  rumor  as  to  who  ought  to  recover,  and  that 
he  was  still  of  the  same  opinion,  if  the  rumors  were  true,  placing  his 
opinion  entirely  upon  the  hypothesis  of  the  truth  of  the  rumors.  He 
had  an  opinion  from  rumor,  if  the  rumors  were  true,  leaving  it 
clearly  inferible,  that  if  they  were  not  true  he  had  no  opinion.  At 
most,  then,  he  showed  that  he  entertained  not  a  fixed,  decided,  posi- 
'five  opinion,  upon  the  merits  of  tlie  case,  but  had  formed  just  such 
an  one  as  all  persons  instinctively  form,  when  they  hear  a  narrative 
of  any  occurrence,  or  the  history  of  any  transaction.  He  showed 
that  he  had  come  to  no  certain  conclusion  upon  the  facts,  tliat  his 
mind  was  in  such  a  condition  as  to  be  open  to  the  testimony  that 
might  be  offered,  and  prepared  to  yield  to  its  force. 

On  Burr's  trial,  Hamilton  Morrison  was  called  as  a  juror,  and  he) 
stated  that  he  had  frequently  declared,  that  if  the  allegations  againstf* 
the  prisoner  were  true,  he  was  guilty;  and  he  was  decided  to  be  an) 
impartial  juror.  In  the  same  case,  Mr.  Parker  was  called  as  a  juror, 
and  being  examined  by  the  court,  said  he  had  formed  no  opinion  of 
the  truth  of  the  depositions,  but  if  they  were  true.  Burr's  designs 
were  treasonable ;  and  he  was  retained  as  a  juror.  Opinions  of  tliis 
character,  which  are  hypothetical,  do  not  disqualify. 

We  then  lay  down  this  rule,  that  if  a  juror  has  made  up  a  decided) 
opinion  on  the  merits  of  the  case,  either  from  a  personal  knowledge  . 
of  the  facts,  from  the  statements  of  witnesses,  from  the  relations  of  ■ 
the  parties,  or  either  of  them,  or  from  rumor,  and  that  opinion  is 

24 — Civ.  Proc. 


370  TRIAL 

positive,  and  not  hypothetical,  and  such  as  will  probably  prevent  him 
from  giving  an  impartial  verdict,  the  challenge  should  be  allowed. 

If  the  opinion  be  merely  of  a  light  and  transient  character,  such 
as  is  usually  formed  by  persons  in  every  community,  upon  hearing 
a  current  report,  and  which  may  be  changed  by  the  relation  of  the 
next  person  met  with,  and  which  does  not  show  a  conviction  of  the 
mind,  and  a  fixed  conclusion  thereon,  or  if  it  be  hypothetical,  the 
challenge  ought  not  to  be  allowed ;  and  to  ascertain  the  state  of  mind 
of  a  juror,  a  full  examination,  if  deemed  necessary,  may  be  allowed. 

Testing  this  case  by  this  rule,  we  think  the  juror  was  properly 
received.^*' 

Judgment  affirmed. 

Scates,  J.,  dissented  on  tlie  application  of  the  law  to  the  facts. 


SECTION  3.     PROCESS  FOR  WITNESSES. 

St.  5  Elis.  Ch.  9,  Sec.  12 

If  any  person  or  persons,  upon  whom  any  process  out  of  any 
of  tlie  courts  of  record  within  this  realm  or  Wales  shall  be  served  to 
testify  or  depose  concerning  any  cause  or  matter  depending  in  any 
of  the  same  courts,  and  having  tendered  unto  him  or  them,  accord- 
ing to  his  or  their  countenance  or  calling,  such  reasonable  sums  of 
money  for  his  or  their  costs  and  charges,  as  having  regard  to  the 
distance  of  the  places  is  necessary  to  be  allowed  in  that  behalf,  do 
not  appear  according  to  the  tenor  of  the  said  process,  having  not  a 
lawful  and  reasonable  let  or  impediment  to  the  contrary;  that  then 
the  party  making  default,  to  lose  and  forfeit  for  every  such  offense 
ten  pounds,  and  to  yield  such  other  recompense  to  the  party  ag- 
grieved, as  by  the  discretion  of  the  judge  of  the  court,  out  of  which 
the  said  process  shall  be  awarded,  according  to  the  loss  and  hindrence 
that  the  party  which  procured  the  said  process  shall  sustain,  by  rea- 
son of  the  non-appearance  of  the  said  witness  or  witnesses ;  the  said 
several  sums  to  be  recovered  by  the  party  so  grieved  against  the 
offender  or  offenders,  by  action  of  debt,  bill,  plaint  or  information, 


"Accord:  Mann  v.  Glover,  14  N.  J.  L.  195  (1833)  :  Irvine  v.  Tifmhprnmn'M 
Bank.  2  Watts  &  S.  (Pa.)  190  (1841)  ;  Thompson  v.  Updegraff,  3  \V.  Va.  629 
(1869)  ;  Collins  v.  Burns,  16  Colo.  7,  26  Pac.  145  (1891)  ;  Kumli  v.  Southern 
Pac.  Co.,  21  Ore.  505,  28  Pac.  637  (1892)  ;  Coghill  v.  Kennedy,  119  Ala.  641, 
24  So.  459  (1898);  Pine  v.  Callahan,  8  Idaho  684,  71  Pac.  473  (1902)  ;  5"/. 
Louis,  I.  M.  &  S.  R.  Co.  V.  Stamps,  84  Ark.  241,  104  S.  W.  1114  (1907)  ;  Fur- 
long V.  American  Central  Fire  Ins.  Co.,  136  Iowa  499,  113  N.  W.  1087  (1907)  ; 
Smith  v.  Chicago  B.  &  O.  R.  Co.,  81  Nebr.  186,  115  N.  W.  755  (190S)  ;  Noo- 
nan  v.  Luther,  128  App.  Div.  673,  112  N.  Y.  S.  898  (1908)  semble;  In  re  Hanna- 
hcr's  Will,  155  Iowa  73,  135  N.  W.  34  (1912).  Compare  Blake  v.  Millspaugh, 
I  Johns.  (N.  Y.)  316  (1806)  ;  Theobald  v.  St.  Louis  Tr.  Co.,  191  Mo.  395,  90 
S.  W.  3S4  (1905)  ;  Shane  v.  Butte  FJec.  R.  Co.,  37  Mont.  599,  97  Pac.  958 
(1908)  ;  Devlin  v.  Devlin,  89  S.  Car.  268,  71  S.  E.  966  (1911)- 


COURTNEY   V.    BAKER  37I 


in  any  of  the  Queen's  Majesty's  courts  of  record,  in  which  no  wager 
of  law,  essoin  or  protection  to  be  allowed. ^^ 


X^COURTNEY  V.  BAKER.  ^ 

Supreme  Court  of  New  York,  1846. 

3  Denlo  (N.  Y.)  27 

Error  to  the  mayor's  court  of  the  city  of  Albany.  The  cause 
came  into  the  mayor's  court  upon  appeal  from  a  judgment  rendered 
by  a  justice  of  the  peace.  The  action  was  brought  by  Baker  against 
Courtney  and  wife,  to  recover  the  penalty  of  fifty  dollars  alleged  to 
have  been  forfeited  to  the  plaintiff  by  the  statute  (2  R.  S.  400,  sec. 
43),^^  for  the  failure  of  the  defendant,  Mrs.  Courtney,  to  attend 
court  as  a  witness,  pursuant  to  a  subpoena  served  upon  her  in  a  suit 
in  this  court  in  which  Baker  was  tlie  plaintiff  and  one  Wilkins  was 


"  "A  writ  of  subpcena  ad  testificandum  is  a  process  issued  by  legal  author- 
ity to  summon  witnesses  under  penalty  to  appear  at  the  time  commanded  and 
the  place  therein  designated,  before  some  officer,  body  or  court,  to  give  evi- 
dence upon  the  matter  pending."  Per  Shull,  J.,  iri_//o7i'<??-  v.  Lnn7.'cr,  i^  Pa. 
•Dist.  R.  745  (1904).  The  writ  is  directed  to  the  person  who  is  commanded  to 
appear  and  testify;  consequently  it  may  be  served  by  a  constable,  sheriff  or 
any  private  person  who  is  capable  of  proving  the  service,  vmless  otherwise 
provided  by  statute.  RespublicQ  y.  St,  CinW^  -z  Pall  (Pa,)  loi  (1877)  ;  Smith 
V.  Wilbur,  35  Vt.  133  (1862). 

At  the  early  common  law,  one  who,  without  interest  in  the  cause,  ap- 
peared voluntarily  as  a  witness  on  behalf  of  another  was  liable  to  be  sued 
for  maintenance  bj-  the  adverse  partv.  Thaver  on  Evidence.  12^  to  120 ;  Y.  B. 
II  Hen.  VI,  41;  Y.  B.  21  Hen.  VI,  15;  Y.  B.  Hen.  VI,  6.  In  chancery,  "Per- 
sons whose  vvitnesses  were  frightened  by  the  prospect  of  proceedings  for 
maintenance  applied  to  the  chancellor  for  a  subpoena  directed  to  the  v/itnesses. 
The  witnesses,  being  thus  compelled  to  testify,  ran  no  risk  of  proceedings 
being  taken  against  them."  Holdsworth  Hist.  Eng.  Lavi-,  vol.  Ill,  p.  4^. 
Wigmore  on  Evidence,  vol.  III.,  §  2190.  The  statute  of  Elizabeth,  supra 
(1562),  provided  for  the  issuing  of  process  to  compel  the  attendance  of  wit- 
nesses, but  at  first  it  was  not  the  practice  to  issue  an  attachmicnt  against  a 
witness  for  disobedience  of  a  subpoena;  the  injured  party  was  left  to  his 
remedy  by  action  at  law.  Havithbury  v.  Harvey,  Cro.  Eliz.  131  (1588)  ;  Good- 
win v.  Jl'cst,  Cro.  Car.  522,  540  (1639)  ;.  Proceedings  by  attachment  were 
first  taken  in  the  Kings  Bench.  Hammond  v.  Stezvart,  1  Str.  510  (1721); 
Wyatt  v.  IVinkzvorth,  2  Str.  810  (1729);  Wyatt  V.  IVingford,  2  Ld.  Raym. 
1528;  Small  V.  Whitmill,  2  Str.  1054  (1737)  ;  Chapman  v.  Poinion,  2  Str.  1150 
(1741),  and  the  practice  was  subsequently  followed  by  the  Common  Bench. 
Compare  Stephenson  v.  Brookes,  Barnes,  2>3  (i74o)  with  Brodie  v.  Tickett, 
Barnes  35  (1750).  In  Bowles  v.  Johnson,  i  W.  Bl.  36  (1748),  Lee,  C.  J.,  is 
reported  as  saying :  "Attachments  are  a  new  practice.  I  remem.ber  the  first ' 
motion  for  them.  It  was  then  agreed  that  the  same  restrictions  should  be 
used  in  attachments  as  in  actions  on  the  5  Eliz.,  one  of  which  is  that  a  tender 
of  expenses  should  be  made  at  the  service  of  tlie  subpoena."  Hallet  v.  Hears, 
13  East  15  (1810)  and  note;  Milsom  v.  Day,  3  Afoore  2>33  (1829)  ;  Barrow  v. 
Humphreys,  3  B.  &  Aid.  598  (1820).  For  the  modern  English  practice  .see 
rules  of  the  supreme  court,  order  XXXVII,  rules  20,  26  to  34.  In  re  Batson, 
70  L.  T.,  N.  S.,  382  (1894);  Raymond  v.  Tapson,  L.  R.  22  Ch.  Div.  430 
(18S2). 

"X.  Y.  Code  of  Civil  Procedure,  §§  853,  855. 


0/  - 


TRIAL 


(lofeiulant.  which  was  noticed  for  trial  at  the  Albany  circuit  in  April, 
1S45.  The  pica  was  the  .q:cncral  issue.  The  plaintiff  proved  that 
!Mrs.  C,  who  resided  in  Albany,  was  served  with  a  subpoena  in  tliat 
cause  to  appear  at  the  circut  on  the  fifteenth  day  of  April,  1845; 
tliat  the  cause  was  tried  on  the  twenty-third  day  of  the  same  month, 
tlic  witness  not  being  present,  and  the  plaintiff  was  nonsuited.  Mrs. 
C.  was  called  as  a  witness  on  that  day,  but  not  appearing,  her  default 
was  entered.  At  the  time  of  serving  the  subpoena,  which  was  on  the 
nintli  day  of  April,  the  plaintiff  paid  Mrs.  C.  fifty  cents  as  witness 
fees,  which  she  received,  but  intimated  that  she  should  not  attend. 

The  defendant's  counsel  offered  to  prove  that  Mrs.  C.  attended 
tlie  court  on  the  fifteenth  day  of  April,  and  for  three  or  four  days 
thereafter ;  that  her  husband  then  requested  the  plaintiff  to  pay  her 
fees,  adding  that  if  he  did  not  do  so  she  would  not  attend  further; 
but  he  refused  to  make  any  further  payment.  He  also  offered  to 
show  tliat  when  the  plaintiff  subpoenaed  Mrs.  C.  she  told  him  she 
knew  nothing  about  the  matter,  and  that  the  plaintiff  replied,  "I 
know  that,  but  you  hzve  been  talking  about  me  and  shall  attend 
court."  The  whole  of  the  evidence  so  offered  was  objected  to  by 
tlie  plaintiff's  counsel  and  excluded  by  the  court  and  tlie  defendant's 
/Counsel  excepted.  The  court  directed  the  jury,  if  they  believed  the 
/evidence,  to  find  a  verdict  for  the  plaintiff  for  the  penalty  of  fifty 
I  dollars,  and  the  jury  found  accordingly,  and  judgment  was  there- 
upon rendered  for  the  plaintiff. 

Beardsley,  J. :  By  the  act  of  1840  the  fees  of  a  witness  are 
"fifty  cents  for  each  day  while  attending  any  court  or  officer;  and 
if  the  witness  resides  more  than  three  miles  from  the  place  of  at- 
tendance, travelling  fees  at  the  rate  of  four  cents  per  mile,  going  and 
returning."  Laws,  1840,  p.  331,  sec.  8.^^  A  witness  is  not  bound  in 
any  case  to  attend  unless  duly  subpoenaed,  for  which  purpose  the 
statute  declares,  amongst  other  things,  that  "the  fees  allowed  by  law 
to  such  witness  for  travelling  to  and  returning  from  the  place  where 
he  is  required  to  attend,  and  the  fees  allowed  for  one  day's  attend- 
ance shall  be  paid  or  tendered  to  such  witness."  2  R.  S.  400,  sec. 
42,  sub.  3.°*  If  the  witness,  when  duly  subpoenaed  refuse  or  neglect 
to  attend,  he  is  responsible  to  the  aggrieved  party  for  all  damages, 
and  may  be  proceeded  against  in  various  ways. 

I.  By  action  on  the  case  at  common  law.  It  is  the  duty  of  the 
witness  to  obey  the  subpoena,  and  in  this  action,  the  injured  party 
may  recover  such  damages  as  result  from  the  violation  of  duty  by 
the  witness,  i  Ch.  PI.  159,  7th  Am.  ed. ;  i  Stark.  Ev.  80,  Phil.  ed. 
1842;  I  Phil.  Ev.  7;  Hasbrouck  v.  Baker,  10  John.  248;  Pierson  v. 
lies,  Doug.  561.  This  remedy  is  recognized  by  the  statute,  which,  so 

"N.  Y.  Code  of  Civil  Procedure,  §  3318;  O'Rourke  V.  Degnon  Realty  Co., 
139  App.  Div.  695,  124  N.  Y.  S.  364  (1910). 

"X.  Y.  Code  of  Civil  Procedure,  §  852.  In  Pennsylvania  the  act_o£-Fgb- 
ruary23,  1889,  P.  L.  8,  §  i,  P.  &  L.  Dip.  (2d*ed.)  7593,  allows  witnesses  one 
dollar  fOT^aclr  day's  attendance  at  court  and  three  cents  for  each  mile  travel- 
inj?  to  and  from  court.  Higher  fees  are,  however,  given  by  local  statutes.  In 
Philadelphia  the  witness  fee  is  $1.50  per  diem.  See  also  New  Jersey  Comp. 
Stats.  (1910),  p.  2288,  §  2;  Mass.  Rev.  Laws  (1902),  vol.  II,  p.  1733. 


COURTNEY   V.    BAKER  373 

far,  is  in  affirmance  of  the  common  law.   2  R.  S.  400,  sec.  43.    See 
also  5  Eliz.,  ch.  9,  sec.  12,  in  Doug.  556,  and  i  Phil.  Ev.  3.^^ 

2.  By  attachment,  and  this  at  common  law  as  well  as  by  the 
statutes  last  referred  to.  See  also  2  R.  S.  535;  and  540,  sec.  34; 
Pearson  v.  lies,  supra;  Amey  v.  Long,  9  East  483;  i  Phil.  Ev.  7;-- 
2  Tidd's  Pr.  8,  8tli  Phila.  ed.,'  1840.=^ 

3.  By  an  action  for  the  penalty  of  fifty  dollars.  The  revised 
statutes  declare  that  "every  person  who  shall  be  duly  subpoenaed  to 
attend  as  witness"  "shall  be  bound  to  attend,  according  to  tlie  com- 
mand of  such  subpoena,  and  for  every  failure  so  to  attend,  without 
a  reasonable  excuse,"  "shall  forfeit  to  the  aggrieved  party  the  sum 
of  fifty  dollars."  The  English  statute  of  5  Eliz.,  already  referred  to, 
is  to  the  same  effect ;  it  imposes  a  penalty  of  ten  pounds  on  any  wit- 
ness v/ho  makes  default  and  refuses  to  appear,  "having  not  a  lawful 
or  reasonable  let  or  impediment  to  the  contrary,"  the  said  penalty 
"to  be  recovered  by  the  party  so  aggrieved."^^ 

This  penalty  is  given  to  the  "aggrieved  party,"  and  the  action 
can  be  sustained  by  no  one  else.  Plence,  as  in  an  action  on  the  case 
at  common  law  for  disobeying  a  subpoena,  the  plaintiff  can  only  re- 
cover the  penalty  by  showing  he  was  damnified  by  the  laches  of  the 
witness ;  if  no  loss  followed,  the  penalty  was  not  incurred.  A  party 
"does  not  acquire  a  right  to  this  penalty  by  the  mere  refusal  of  a 
witness  to  attend  when  duly  subpoenaed.  Something  more  is  re- 
quired. It  must  be  shown  that  the  witness  was  material,  and  that 
damages  resulted  from  his  non-attendance.  In  Goodwin  v.  West, 
which  was  an  action  on  the  statute  of  5  Eliz.  to  recover  tlie  penalty 
of  ten  pounds,  it  was  moved  in  arrest  of  judgment  that  the  declara- 
tion v/as  not  good,  and  the  third  exception  taken  by  counsel  was,  that 
tlie  plaintiff  did  not  show  that  he  was  endamaged  hy  the  non-appear- 
ance of  the  witness ;  to  which  it  was  answered,  "that  the  action 
being  brought  only  for  ten  pounds  and  not  for  furthei  dam.ages,  it 
is  well  enough,  and  the  ten  pounds  is  due  for  her  non-appearance  to 
the  king  and  tlie  party.  But  all  the  justices  held  that  the  declaration 
was  ill  for  tliis  cause ;  for  there  ought  to  be  a  party  grieved  by  the 
non-appearance,  otherwise  there  is  no  cause  for  forfeiture ;  and  so 
is  the  express  scope  and  v^^ords  of  the  statute."  In  B.  R.  15  Car.  i. 


^^Masterman  v.  Jiidson,  8  Bingh.  224  (1832)  ;  Heermans  v.  Williams,  11 
Wend.  (N.  Y.)  636  (1834)  ;  Prentiss  v.  Webster,  2  Doug.  (Mich.)  5  (1845)  ; 
Hurd  V.  Swan,  4  Den.  (N.  Y.)  75  (1847)  ;  Robinson  v.  Trull,  4  Cush.  (Mass.) 
249  (1849)  ;  Connett  v.  Hamilton,  16  Mo.  442  (1852)  ;  Lane  v.  Cole,  12  Barb. 
(N.  Y.)  680  (1852)  ;  McCall  v.  Butterworth,  8  Iowa  329  (1859)  ;  Lamont  v. 
Crook,  6  M.  &  W.  615  (1840)  ;  State  v.  Lonsdale,  48  Wis.  348,  4  N.  W.  390 
(1879). 

^"Res^mb..  V  Puane.  A  Yeates  (Pa.)  347  (1807)  ;  Regina  v.  Russell,  7  Dowl. 
693  (1839)  ;  Chicago  &  A.  R.  Co.  v.  Dunning,  18  111.  494  (1857)  ;  Burns  v. 
Superior  Court,  140  Cai.  i,  y;^  Pac.  597  (1903)  ;  Fairfield  v.  U.  S.,  146  Fed.  508 
(1906)  ;  Commonwealth  v.  Klein,  40  Pa.  Super.  Ct.  ^jks  Cidoq')  ;  Leber  v.  U. 
S.,  170  Fed.  881  (1909)  i^ People  v.  Keid,  139  App.  Div.  551,  124  N.  Y.  S.  205 
(1910). 

'''McKeon  v.  Lane,  i  Hall  (N.  Y.)  319  (1828)  ;  Smith  v.  Merwin,  15 
Wend.  (N.  Y.)  184  (1836);  Nelson  v.  Eiijell,  2  Swan  (Tenn.)  271  (1852); 
Carrington  v.  Hutson,  28  Hun  (N.  Y.)  371  (1S82)  ;  Lombard  v.  Smith,  2,7  Ore. 
23,  60  Pac.  388  (1900). 


374  TRIAL 

Cro.  Car.  522,  540,  Sir  Wm.  Jones  430.  The  same  point  was  ad- 
jiuls^cd  in  the  conunon  pleas,  which  judgment  was  affirmed  on  writ 
of  error,  in  the  case  of  Madison  v.  Shore,  9  Wm.  3,  though  this  was 
admitted  to  be  "contrary  to  a  judgment  in  the  Hke  case,  anno  30  EUz., 
where  the  Hke  exception  was  taken  and  overruled."  5  Mod.  355 ;  i 
Salk.  206;  I  Comb.  449,  458.  See  also  3  Bac.  Ab.  Evidence  D ;  Pear- 
son V.  lies,  supra;  Heermans  v.  Williams,  11  Wend.  (N.  Y.)  636; 
MeKeon  v.  Lane,  i  Hall,  319;  Masterman  v.  Jndson,  8  Bing.  224. 
A  precedent  for  a  declaration  for  the  penalty  on  5  Eliz.  is  given  in 
7  \\'entworth's  PI.  243.  It  alleges  that  the  evidence  that  the  witness 
could  have  given  would  have  been  material,  and  that  it  was  nec- 
essary for  tlie  party.  The  declaration  in  Pearson  v.  lies,  supra,  con- 
tains a  similar  averment.  I  regard  the  principle  as  sound  and  en- 
tirely settled  by  authority."^ 

If  a  defaulting  witness  Avas  wholly  unable  to  give  material  evi- 
dence in  the  case,  it  is  manifest  that  no  injury  could  have  arisen  for 
his  non-attendance,  and  consequently  he  could  not  have  incurred 
tlie  penalty.  In  this  case,  the  defendants  offered  to  prove  a  direct 
and  unqualified  admission  by  the  plaintiff,  that  he  was  aware  the 
witness  knew  nothing  about  the  matter  in  question  in  tlie  cause 
wherein  she  had  been  subpoenaed,  followed  by  a  declaration  that  she 
had  been  talking  about  him,  and  therefore  should  attend  the  court. 
This  evidence  was  pertinent  to  the  issue,  and  should  not  have  been 
rejected.  It  would  have  tended  to  prove  that  the  witness  was  in  no 
way  material  to  the  plaintiff,  and  might  have  satisfied  the  jury  that 
he  had  sustained  no  injury  by  her  non-attendance.  This  was  an  es- 
sential point  in  the  case,  and  the  court  clearly  erred  in  excluding  the 
evidence.  I  will  add,  that  if,  in  truth,  the  witness  was  subpoenaed 
for  the  purpose  of  annoyance,  and  not  because  she  was  regarded  as 
material,  it  was  a  gross  abuse  of  tlie  process  of  the  court,  and  as 
such  deserved  to  be  punished  as  a  palpable  contempt  of  its  authority. 

But  this  is  not  all,  for  no  forfeiture  occurs  unless  the  fail- 
ure of  the  witness  to  attend  is  "without  reasonable  excuse."  Now 
let  it  be  granted,  which  is  all  the  plaintiff  could  claim,  that  but 
for  what  I  am  to  state,  the  witness  would  have  been  bound  to 
attend  the  court  from  the  fifteenth  of  April,  the  day  named  in  the 
subpcEna,  to  the  twenty-third,  when  the  cause  was  tried.  The  witness 
had  been  paid  for  one  day's  attendance  and  no  more,  and  it  was  of- 
fered, by  the  defendants,  to  prove  that  she  attended  on  the  fifteenth, 
as  tlie  subpcena  required,  and  for  three  or  four  days  thereafter; 
that  the  plaintiff  was  then  called  upon  to  pay  her  fees,  and  was  in- 
formed that  she  would  not  remain  at  court  unless  they  were  paid, 
and  that  he  refused  to  make  any  further  payment.  This  evidence 
the  plaintiff  objected  to,  and  it  was  excluded  by  the  court.   Upon 


'^Conling  v.  Coxe,  6  C.  B.  703  (1848)  ;  Robinson  v.  Trull,  4  Cush.  (Mass.) 
249  (1849)  ;  Carrington  v.  Hutson,  28  Hun  (N.  Y.)  371  (1882)  ;  Landenbtirg 
V.  Pennsylvania  R.  Co..  66  N.  J.  L.  187  (1901)  ;  Nolan  v.  Grider,  135  Cal.  49, 
67  Pac.  9  (1901).  Assumpsit  will  lie  to  recover  back  money  paid  for  expenses 
to  a  witness  who  has  not  attended.  Martin  v.  Andrews,  7  El.  &  Black,  i 
(1856)  ;  Please  v.  Bamford.  96  Maine  23,  51  Atl.  234  (1901).  Contra:  Letgh- 
ton  V.  TiLombly,  9  N.  H.  483  (1838). 


BARRUS   V.    PHANEUF  375 

what  principle  it  was  rejected,  I  confess  I  do  not  see.  If  such  was  \ 
the  case  the  plaintiff  alone  was  in  fault,  and  the  witness  had  a  most ' 
"reasonable  excuse"  for  leaving  the  court.  She  was  entitled  to  the 
daily  sum  of  fifty  cents,  and  it  was  the  plaintiff's  duty  to  see  it 
paid  to  her.  The  witness  was  not  bound  to  trust  the  party,  and  rely 
on  him  for  future  payment;  the  allowance  to  witnesses  is  for  their 
daily  sustenance,  and  a  refusal  to  pay  is  a  virtual  discharge  of  the 
witness,  and  a  very  sufficient  excuse  for  omitting  further  attendance 
in  the  cause.  If  this  plaintiff  was  thus  endamaged,  it  was  his  own 
fault,  and  he  must  bear  the  consequences,  whatever  they  may  be. 
No  right  of  action  could  accrue  in  his  favor  under  such  circum- 
stances, and  no  penalty  was  incurred  by  the  witness.  A  party  who 
would  seek  redress  against  a  witness,  must  see  that  he  is  not  himself 
in  fault,  and  that  everytliing  has  been  done  which  the  witness  had  a 
right  to  exact.  ^x 

The  court  erred  in  rejecting  the  evidence  offered  on  these  points,.' 
and  the  judgment  must  be  reversed.^^ 

Judgment  reversed. 


/^ 


BARRUS  V.  PHANEUF. 

Supreme  Judicial  Court  of  Massachusetts,  1896. 

166  Mass.  123 


Contract  to  recover  extra  compensation  as  an  expert.  At  the 
trial  in  the  superior  court,  before  Maynard,  J.,  the  jury  returned  a 
verdict  for  the  plaintiff;  and  the  defendant  alleged  exceptions,  the 
nature  of  which  appear  in  the  opinion. 

Allen,  J. :  The  jury  must  have  found  upon  the  evidence  that  the 
defendant  engaged  the  plaintiff  to  go  into  court  at  a  future  day,  and 


"^In  civil  cases  a  witness  is  not  bound  to  attend  court  unless  his  fees  and 
expenses  have  been  paid  or  tendered.  Chapman  v.  Pointon,  2  Str.  1150 
(1740)  ;  Bowles  v.  Johnson,  i  Wm.  Bl.  36  (1748)  ;  Fuller  v.  Prentice,  i  H.  Bl. 
49  (1788)  ;  Ashton  v.  Haigh,  2  Chit.  201  (1814)  ;  Ogden  v.  Gibbons,  5  N.  J. 
L.  SiB  (1819);  Betteley  v.  McLeod,  3  Bingh.  N.  C.  405  (1837);  Flurd  v. 
Szvan,  4  Den.  (N.  Y.)  75  (1847)  ;  Bednlieu  v.  Parsons,  2  Minn,  i  (1858); 
Bliss  v.  Brainard,  42  N.  H.  2SS  (i860)  ;  Richards  v.  Goddard,  L.  R.  17  Eq. 
Cas.  238  (1873)  ;  Trl^ihlp  V  M^lhollen.  8  Pa  Dist.  aax  (\9>qq)  ;  Hollister  V. 
People,  116  111.  App.  338  (1904)  ;  People'v.  Healey,  139  IH-  App.  363  (1908). 
Contra:  Smith  v.  Barger,  9  Yerg.  (Tenn.)  322  (1836),  and  compare  H olden  v. 
Shove,  I  R.  I.  287  (1850)  ;  N orris  v.  Hassler,  23  Fed.  581  (1885).  A  witness 
in  a  civil  case  is  not  bound  to  attend  court  after  the  time  for  which  his  fees 
have  been  paid  or  tendered.  Atzvood  v.  Scott,  99  Mass.  177  (1868)  ;  Mattocks 
v.  Wheat  on,  10  Vt.  493  (1838)  ;  Muscott  v.  Range,  27  How.  Pr.  (N.  Y.)  85 
(1863).  In  criminal  cases  the  rule,  in  the  absence  of  a  statute  to  the  contrary, 
is  that  no  tender  of  fees  is  necessary  upon  the  service  of  the  subpoena.  Rex 
v.  Cooke,  I  C.  &  P.  321  (1824)  ;  Rex  v.  Sadler,  4  C.  &  P.  218  (1830)  ;  Ex  parte 
Chamberlain,  4  Cow.  (N.  Y.)  49  (1825)  ;  Henley  v.  State,  98  Tenn.  665,  41 
S.  W.  352,  1104,  39  L.  R.  A.  126  (1897)  ;  Hancock  v.  Parker,  100  Ky.  143,  37 
S.  W.  594,  18  Ky.  L.  622  (1896)  ;  Dixon  v.  People,  168  111.  179.  48  N.  E.  108, 
39  L.  R.  A.  116,  179  and  notes  (1897)  ;  State  v.  Kaemmerling,  83  Kans.  383, 
III  Pac.  443,  31  L.  R.  A.  (N.  S.)  781  and  notes  (1910). 


376  TRIAL 

testify  for  liim  as  an  expert,  in  rcj^ard  to  a  matter  which  the  plain- 
tiff hatl  examined  as  a  civil  engineer.  From  the  dates  (?iven,  it  would 
seem  that  tliis  enc[aj:^ement  was  six  weeks  before  the  trial.  The  plain- 
tilY  agfrecd  to  do  this,  and  talked  over  the  matter,  and  went  into 
court  and  testilied,  and  during  the  process  of  the  trial  advised  the 
defendant's  attorney  in  regard  to  the  questions  to  be  asked  to  himself 
and  to  the  other  witnesses. 

At  some  time  after  he  had  so  agreed  to  appear  and  testify,  the 
plaintiff  was  regularly  summoned  by  the  defendant  as  a  witness, 
and  was  paid  the  statutory  fees,  and  made  no  objection  thereto,  and 
made  no  claim  for  extra  compensation ;  and  it  would  seem  that  dur- 
ing his  testimony  he  was  not,  in  fact,  asked  any  questions  which 
called  for  his  opinion  as  an  expert. 

The  defendant  contends  tliat,  if  there  was  an  express  promise 
to  pay  tlie  plaintiff  extra  compensation,  such  promise  was  with- 
out consideration ;  and  that  the  plaintiff  did  no  more  tlian  he  was 
legally  required  to  do  under  his  subpoena. 

In  this  commonwealth,  every  justice  of  the  peace  may  issue 
summonses  for  witnesses  in  civil  cases.  Stat.  1885,  ch.  141.  This  is 
usually  done  by  the  party's  attorney,  if  he  be  a  justice  of  the  peace, 
or  by  a  justice  upon  the  mere  request  of  a  party  or  of  his  attorney, 
v/ithout  any  consideration  of  the  materiality  of  the  evidence  or  of 
other  circumstances.  No  doubt  here,  as  in  England,  the  court  might 
interpose  to  prevent  this  privilege  from  being  used  oppressively. 
Raymond  v.  Tapson,  22  Ch.  D.  430.  But  usually  no  question  arises 
unless  a  witness  fails  to  attend,  in  which  case  the  court  may  issue  a 
warrant  to  bring  him  in.  Pub.  Stat.,  ch.  169,  sec.  6.  The  issuing  of 
this  warrant  is  a  matter  of  discretion,  and  before  issuing  it  the  court 
usually  must  be  satisfied  that  the  testimony  is  material,  and  that  the 
failure  to  attend  is  without  reasonable  excuse.  We  should  be  slow  to 
admit  that  the  court  would  be  without  power  to  require  the  attend- 
ance of  a  professional  or  skilled  witness,  upon  a  summons  duly 
served,  and  with  payment  of  the  statutory  fees,  although  he  was 
unacquainted  with  the  facts  and  could  testify  only  to  opinions;  but 
such  power  would  hardly  be  exercised  unless,  in  the  opinion  of  the 
court,  it  was  necessary  for  the  purposes  of  justice.  In  re  Roelker,  i 
Sprague,  276 ;  IV ebb.  v.  Page,  i  Car.  &  K.  23 ;  Parkinson  v.  Atkinson, 
31  L.  J.  (N.  S.),  C.  P.  199 ;  I  Whart.  Ev.,  sees.  380-383.  Even  in  such 
case  the  court  would  probably  be  without  the  power  to  compel  the 
witness  to  make  a  study  of  the  case  beforehand,  or  to  pay  attention 
to  the  body  of  the  evidence  introduced  by  the  parties  with  a  view 
to  forming  an  opinion  thereon.  It  would  seem  that  one  who  is  sum- 
moned as  an  expert  would  perform  all  that  the  court  could  require 
of  him  if  he  should  hold  himself  in  readiness  to  be  called  upon  to 
testify  to  such  opinions  as  he  might  have,  when  his  turn  should  come. 
People  V.  Montgomery,  13  Abb.  Pr.,  (N.  Y.)  (N.  S.),  207;  Flinn  v. 
Prairie  Connty,  60  Ark.  204.  If  a  party  is  content  to  rest  upon  his 
legal  rights,  and  summons  the  expert  whose  testimony  he  wishes  to 
have,  and  pays  the  statutory  fees,  without  any  previous  engagement 
or  understanding  with  him,  and  thus  takes  his  chance  of  being  able 
to  get  an  attachment  to  bring  the  witness  into  court  in  case  he  should 


BARRUS   V.    PHANEUF  377 

fail  to  appear,  and  if  he  thus  succeeds  in  getting  the  testimony  which 
he  wishes  and  afterwards  refuses  to  pay  any  special  compensation, 
the  question  might  be  directly  presented  whether  the  witness  would 
be  entitled  to  recover  anything  on  a  quantum  meruit.  That  question 
does  not  arise  here.  The  questions  here  are  whether  there  was  any 
sufficient  consideration  for  an  express  or  implied  promise  to  pay, 
and  whether  there  was  sufficient  evidence  of  an  engagement  by  him 
to' testify  as  an  expert,  upon  request,  which  might  imply  a  promise 
by  the  defendant  to  pay  him  as  an  expert. 

Several  cases  have  arisen  in  different  courts  where  a  professional 
witness  has  taken  the  stand  without  objection,  and  afterwards  has 
declined  to  give  professional  opinions  without  special  compensation, 
and  has  been  required  by  the  court  to  answer.  Such  decisions  do  not 
strictly  apply  to  the  case  before  us,  because  in  all  such  cases  the  court 
has  judicially  determined  that  the  purposes  of  justice  require  the 
testimony  of  the  witness.  Ex  parte  Dement,  53  Ala.  389;  Wright  v. 
People,  112  111.  540;  State  v.  Teipner,  36  Minn.  535.  In  Indiana, 
however,  the  court  has  refused  to  require  such  witness  to  answer 
under  such  circumstances.  Biichman  v.  State,  59  Ind.  i ;  Dills  v. 
State,  59  Ind.  15.  In  Connecticut,  in  respect  to  an  ordinary  witness, 
not  an  expert,  the  court  held  that  ordinarily  an  agreement  to  pay 
extra  fees  will  not  be  sustained,  but  that  it  might  be  valid  where  the 
witness  assumed  a  duty  which  the  law  would  not  impose  on  him ;  and 
the  court  added:  "If  a  witness  agrees  with  a  party,  that  he  will 
attend  and  testify  without  being  summoned,  and  he  is  not  summoned 
and  so  is  not  brought  under  the  order  or  censure  of  the  court,  we 
suppose  any  reasonable  promise  for  compensation  is  good  and  may 
be  enforced ;  for  the  proceeding  or  service  is  not  under  nor  in  pur- 
suance of  the  statute."  Dodge  v.  Stiles,  26  Conn.  463,  466,  467.  A 
casual  intimation  that  ordinarily  a  witness  can  recover  only  the  fees 
allowed  by  law  is  also  found  in  Pool  v.  Boston,  5  Cush.  (]\Iass.) 
219,  221.^° 

In  the  present  case,  we  are  of  opinion  that,  upon  the  facts  in 
evidence,  there  was  sufficient  consideration  to  support  a  promise  to 
pay  a  reasonable  compensation,  in  addition  to  the  statutory  fees,  and 
that  the  jury  was  warranted  in  finding  a  promise  to  that  effect,  or  a 
mutual  understanding  that  the  plaintiff  was  to  be  so  paid.  If  such 
promise  was  made,  or  such  understanding  existed,  the  plaintiff's 
right  to  recover  would  not  be  taken  away  or  lost  by  his  omission  to 
claim  or  demand  extra  compensation,  or  to  notify  the  defendant  that 
he  should  make  such  claim,  or  by  his  acceptance  of  the  statutory  fee 
without  objection,  or  by  the  omission  of  the  defendant  at  the  trial  to 
put  any  question  to  him  as  an  expert  witness,  and  the  consequent 

*°Where  an  ordinary  witness  is  within  the  jurisdiction  and  amenable 
to  process,  an  agreement  to  compensate  him  in  an  amount  in  excess  of  the 
legal  fees  for  attending  court  and  testifying  to  facts  within  his  knowledge, 
is  contrvLTy  to  public  policy  and  void.  Clifford  v.  Hughes,  139  App.  Div. 
730,  124  N.  Y.  S.  478  (igio)  ;  Collins  v.  Godefroy,  I  B.  &.  Ad.  950  (1831)  ; 
Dodge  v.  Stikes,  26  Conn.  463  (1857)  ;  Walker  v.  Cook,  2:^  HI-  App.  =;6i 
(1889) ;  Lyon  v.  Htisscy,  82  Hun  15,  31  N.  Y.  S.  281,  63  N.  Y.  St.  531  (1894)  ; 
Cowles  V.  Rochester  Folding  Box  Co.,  81  App.  Div.  414,  80  N.  Y.  S.  811 
( 1 903 ) ;  Ramschasel's  Estate,  24  Pa.  Super.  Ct.  262  (1Q04 ) . 


37S  TRIAL 

omission  of  the  plaintifT  to  testify  as  an  expert.  All  these  were  merely 
matters  lor  the  consideration  of  the  jury  in  determining  whether  any 
such  promise  was  made,  or  sucli  understanding  existed.''^  [, 

Exceptions  overruled.  ^ 


r 


BOSTON   c^  MAINE   RAILROAD  v.   STATE. 
Supreme  Court  of  New  Hampshire,  1910. 

75  A^.  H.  513 


^Motions  by  the  plaintiffs  that  two  witnesses,  duly  summoned 
under  a  caption  for  the  taking  of  depositions  to  be  used  on  the  trial 
of  the  plaintiff's  petition  for  abatement  of  taxes,  be  directed  toi 
answer  certain  inquiries  put  to  them  in  the  course  of  their  examina- 
tion and  to  produce  certain  documents  in  obedience  to  a  subpoena 
duces  tecum  served  upon  each. 

The  plaintiffs  had  filed  in  the  Supreme  Court  a  petition  for 
abatement  of  taxes  assessed  against  them  by  the  state  board  of 
equalization  for  the  year  1909,  and  referees  had  been  appointed  to 
hear  the  parties  and  report  the  facts.  It  was  alleged  that  the  plain- 
tiff's' road  and  equipment  had  been  appraised  at  a  sum  in  excess  of 
its  true  value,  and  assessed  for  purposes  of  taxation  at  a  greater 
percentage  of  its  true  value  than  all  other  taxable  property  in  the 
state.  For  the  purpose  of  showing  these  facts  the  plaintiffs  sub-  I 
poenaed  Thomas  R.  Varick,  treasurer  and  manager  of  John  B. 
Varick  Company,  and  William  B.  Burpee,  treasurer  of  the  Elliott 
]\Ianufacturing  Company.    The  subpoena  served  upon  Varick  di- 


*^\Vhile  the  earlier  cases  showed  a  disinclination  to  compel  professional 
men  to  testify  on  professional  subjects  for  the  ordinary  witness  fee,  the  result 
of  the  more' recent  decisions  is  that  the  expert  must  obey  the  subpoena  of 
the  court  and  testify  to  facts  within  his  knovvledsje.  Flinn  v.  Prairie,  60  Ark. 
204,  29  S.  W.  459,  27  L.  R.  A.  669,  46  Am.  St.  1&8  (1895)  ;  Dixon  v.  People, 
16S  111.  179,  48  N.  E.  108,  39  L.  R.  A.  116  (1897)  ;  North  Chicago  St.  R.  Co. 
V.  Zciger,  182  111.  9,  ^.%  N.  E.  1006,  74  Am.  St.  157  (1899)  ;  Bathgate  v.  Irvine, 
126  Cal.  135,  58  Pac."'442,  yy  Am.  St.  158  (1899)  ;  Maine  v.  Sherman,  74  Nebr. 
m5,  103  N.  \V.  1038  (1905)  ;  Commonwealth  w.  Cochran,  14  Pa.  Dist.  R^  805 
(1905)  ;  Butler  V.  Toronto  MiiToscope  Co.,  ii~T5htario'L.  R.  12"^ (1905)  ;  Chicago 
&  M.  E.  R.  Co.  V.  Judge,  135  111.  App.  277  (1907)  ;  State  v.  Bell,  212  Mo.  in. 
Ill  S.  W.  24  (1908)  ;  Phillcr  v.  Waukesha  Co.,  139  Wis.  1040,  120  N.  W.  829, 
25  L.  R.  A.  (N.  S.)  1040  and  note  (1909).  But  an  expert  is  not  required  to 
testify  either  to  an  opinion  or  to  any  other  fact  which  must  be  ascertained  by 
special  labor.  And  if  he  does  perform  v/ork  in  preparation  and  qualification 
to  enable  him  to  testify  at  the  request  of  any  person  an  implied  contract  for 
reasonable  compensation  or  an  express  contract  will  be  valid.  People  v.  Mont- 
gomery, 13  Abb.  Pr.  (N.  S.)  (N.  Y.)  207  (1871);  Tiffany  v.  Kellog  Iron 
Works,  =9  Misc.  113,  109  N.  Y.  S.  754  (1908)  ;  Anderson  v.  Minneapolis,  St. 
Paul  &  S.  M.  R.  Co.,  103  Minn.  184,  114  N.  W.  744  (iQoS)  ;  Scho field  v.  Little, 
2  Ga.  App.  286.  s8  S.  E.  666  (1907)  ;  Hough  v.  State,  68  Misc.  26,  124  N.  Y.  S. 
878  (1910)  ;  Gordon  v.  Conley,  107  Maine  286,  78  Atl.  365  (1910)  ;  Keller  v. 
Harrison,  i^i  Iowa  320,  128  N.  W.  851  (1910).  For  England  see  Batley  v. 
Kvnock,  L.  R.  20  Eq.  Cas.  632  (1875)  ;  Macklev  v.  Chillingworth,  L.  R.  2  C.  P. 
Div.  273  (1877)  ;  Ttirnhull  v.  Janson,  L.  R.  3  C.  P.  Div.  264  (1878). 


BOSTON  &  M.  RAILROAD  V.    STATE  379 

rected  him  to  produce  the  poHcies  of  insurance  of  the  Varick  Com- 
pany; that  upon  Burpee  to  produce  all  the  books,  papers  and  inven- 
tories tending  to  show  the  stock  in  trade  of  the  Elliott  Manufactur- 
ing Company.  ' 

Varick  appeared,  testified  that  he  could  not  give  any  estimate  of 
the  insurance  and  that  he  did  not  bring  with  him  the  policies  men- 
tioned in  the  subpoena,  because  he  considered  that  they  were  "our 
private  business,"  and  that  it  would  be  "an  injury  to  our  private 
business  to  produce  them."  He  further  testified  that  the  had  pur- 
chased a  Cgftain  interest  in  the  company,  but  declined  to  state  tlie 
price  on  the  ground  that  the  transaction  was  his  private  business. 

Burpee  stated  that  he  had  not  brought  with  him  the  books  and 
docum.cnts  enumerated  in  the  subpoena  and  should  decline  to  make 
any  disclosure  as  to  the  stock  account  and  insurance  policies  of  the 
Elliott  Company  until  he  had  consulted  the  directors  and  counsel. 

Counsel  for  plaintiffs  moved  in  the  Supreme  Court  that  each 
witness  be  ordered  to  answer  the  questions  propounded  to  him  and 
to  produce  the  documents  described.^- 

Parsons,  C.  J. :  In  this  controversy  between  the  plaintiffs  and 
the  state,  in  which  the  witnesses  are  not  immediately  interested,  the 
Vv-itnesses  complain  that  they  are  asked  to  disclose  by  oral  testimony 
and  the  production  of  written  matter  in  their  possession  details  of 
their  private  affairs  for  the  benefit  of  strangers.  The  ground  of 
their  objection  is  not  very  clearly  presented,  but  it  seems  to  be,  aside 
from  a  natural  disinclination  to  make  public  disclosure  of  their  busi- 
ness affairs,  that  such  disclosure  may  in  some  way  result  to  their 
pecuniary  disadvantage.  "No  subject  shall  *  *  *  be  compelled 
to  *  *  '^  furnish  evidence  against  himself."  Bill  of  Rights, 
article  15.  But  this  article  relates  to  criminal  proceedings  only. 
Wood  V.  Weld,  Smith  ( N.  H. )  367,  368.  It  has  not  been  suggested 
that  response  to  the  inquiries  or  the  requests  for  the  production  of 
papers  would  tend  to  incriminate  either  of  the  v/itnesses. 

There  was  at  one  time  in  England  diversity  of  opinion  whether 
a  witness  could  be  compelled  to  testify  to  facts  which  might  expose 
him  to  a  civil  suit  or  to  pecuniary  loss,  which  v/as  settled  by  a  statute  ; 
declaring  that  a  witness  can  not  by  law  refuse  to  answer  a  relevant; 
question  upon  the  ground  that  the  answer  may  tend  to  establish  he  I 
owes  a  debt,  or  is  otherwise  subject  to  a  civil  suit.   46  Geo.  Ill,  ch.  * 
JT'fMay  5,  1806).   This  statute  has  generally  been  accepted  in  this  1 
country  as  correctly  declaring  the  law.    i  Gr.  Ev.,  sec.  452 ;  3  "Wig.  j 
Ev.,  sec.  2223.   It  was  so  held  in  tliis  state  in  1825  {Copp  v.  Upham,  ' 
3  N.  H.  159,  162),  a  conclusion  that  does  not  appear  to  have  been 
since  questioned.  A  witness  has  no  greater  right  to  conceal  facts  by 
withholding  documentary  proof  of  them  in  his  possession  than  to 
refuse  to  answer  orally  to  matters  within  his  knowledge.    There  is 
no  difference  in  principle  between  compelling  proof  of  the  truth  by 
either  method.  Bull  v.  Loveland,  10  Pick.  (Mass.)  9,  14;  Burnham 


•'The  statement  of  facts  is  abridged  and  part  of  the  opinion  of  the  court 
omitted. 


.^So  TRIAL 

V.  i}fo7vhray,  14  Gray  (Alass.")  226,  240;  Amey  v.  Long,  9  East  373; 
3  Wig,  ICv.,  sec.  2193."^  In  cither  case,  the  evidence  when  properly 
called  for  must  be  produced,  unless  its  production  is  excused  by 
some  specific  privilege.  That  the  disclosure  may  result  in  pecuniary 
loss  to  tlie  witness  or  is  personally  distasteful  to  him  is  not  such  a 
privilege."* 

\\'hile  the  witnesses  are  naturally  disinclined  to  disclose  the 
details  of  their  i^rivate  business  for  the  benefit  of  third  parties,  the 
duty  to  do  so  when  required  in  the  administration  of  justice  is  one 
devolving  upon  them  as  members  of  a  civili/.ed  community.  Except 
for  such  duty,  the  promise  of  protection  to  each  member  of  the 
community  by  the  twelfth  article  of  tlie  bill  of  rights,  and  of  a  cer- 
tain remedy  for  wrong  by  recourse  to  the  laws,  declared  to  be  the 
right  of  each  subject  by  the  fourteenth  article,  would  be  of  no  yalue. 
This  remedy  through  judicial  procedure  is  part  of  the  protection 
guaranteed  to  each  member  of  the  community  from  the  community, 
by  the  twelfth  article,  and  to  effect  which  each  member  is  by  the 
same  article  declared  to  be  bound  to  contribute  his  share  of  the 
expense  and  to  yield  his  personal  service  when  necessary.  There 
could  be  no  judicial  administration  of  rights  without  the  personal 
service  of  members  of  the  community,  and  their  efforts  as  such 
officers  would  be  futile  if  other  members  of  tlie  community  possess- 
ing knowledge  of,  or  other  evidence  as  to,  the  controversy  were  not 
obliged  to  yield  their  services  when  necessary.  The  service  ren- 
dered by  the  witnesses  in  appearance  at  the  caption  in  obedience  to 
the  subpoena  was  doubtless  not  agreeable  to  them  and  was  not  per- 
formed without  pecuniary  sacrifice.    Inconvenience,  monetary  loss, 

or  disinclination  they  did  not  regard  as  an  excuse  for  disobeying  the 

\ 

'^Summers  V.  Moseley,  2  Cr.  &  M.  477  (1834). 

"In  general  a  wUness  is  not  bound  to  answer  a  question  which  would 
tend  to  expose  him  to  a  prosecution  for  crime.  Cohurn  v.  Odell,  30  N.  H. 
540  (1855);  Commonvi-ealth  v.  Trider,  143  Mass.  180,  9  N.  E.  510  (1887); 
People  V.  Forbes,  143  N.  Y.  219  (1894)  ;  Twining  v.  State  of  Nezv  Jersey,  211 
U.  S.  78,  29  Sup.  Ct.  14,  53  L.  ed.  97  (1908)  ;  and  the  rule  is  the  same  in  ac- 
tions for  penalties  -which,  though  civil  in  form,  are  criminal  in  their  nature. 
Lees  V.  U.  S.,  150  U.  S.  476.  37  L.  ed.  1150,  14  Sup.  Ct.  163  (1893).  But  a  wit- 
ness can  not  refuse  to  testify  because  his  answer  may  be  against  his  pecu- 
niarj^  interest  or  may  expose  him  to  a  civil  action.  Baird  v.  Cochran.  4  Serp. 
&  R.  (Pa.)  307  (1818)  ;  Taney  v.  Kemp,  4  H.  &  J.  (Md.)  348,  7  Am.  Dec.~^3 
(1818)  ;  Planters'  Bank  v.  George,  6  Martin  (La.)  (O.  S.)  670,  12  Am.  Dec. 
487  (1819)  ;  Copp  V.  Upham,  3  N.  H.  1^9  (1825)  ;  Bull  v.  Loveland,  27  Mass.  9 
(1830)  ;  In  re  Kip,  i  Paige  (N.  Y.)  601  (1829)  ;  Ward  v.  Sharp,  15  Vt.  115 
(1843)  ;  Alexander  v.  Knox,  7  Ala.  503  (1845)  ;  Ex  parte  Mumford,  57  Mo. 
603  (1874)  ;  Levy  v.  Superior  Court,  105  Cal.  600,  38  Pac.  965,  29  L.  R.  A.  81 1 
(1895);  New  York  Life  Ins.  Co.  v.  People,  95  111.  App.  136  (1900);  Russie 
Cement  Co.  v.  Woolworth  Co.,  68  Misc.  454,  125  N.  Y.  S.  82  (1910).  Contra: 
Starr  v.  Tracy,  2  Root  (Conn.)  528  (1797)  ;  United  States  v.  Grundy,  3 
Cranch  (U.  S.)  337,  2  L.  ed.  459,  and  note  (1806)  ;  Benjamin  v.  Hathaway,  3 
Conn.  528  (1821)  ;  Bank  of  United  States  v.  Washington,  3  Cranch  (C.  C.) 
295  (1828).  A  witness  will  not  be  compelled  to  furnish  evidence  irrelevant  to 
the  issue,  if  the  disclosure  of  such  irrelevant  facts  would  be  injurious  to  his 
business.  Ex  parte  Jennings,  60  Ohio  St.  319,  54  N.  E.  262,  71  Am.  St.  720 
(1899)  ;  Peterson  v.  Mineral  King  Fruit  Co.,  140  Cal.  624,  74  Pac.  162  (1903)  ; 
In  re  Park,  138  Fed.  421  (1905).  See  also  Ripley  v.  Seligman,  88  Mich.  177, 
50  N.  W.  143  (1891)  ;  In  re  0.sborne,  141  Mass.  307,  4  N,  E.  618  (1886)  ;  Al- 
vord  V.  Alvord,  109  Iowa  113  (1899). 


BOSTON  &  M.  EAILKOAD  Z^K    STATE  38 1 

subpoena  requiring  their  presence.  Neither  is  a  vana  excuse  for 
failure  to  testify  or  obey  the  subpoena  duces  tecum.  The  service  is 
one  which  they  are  constitutionally  bound  to  render  and  for  which 
they  perhaps  can  obtain  full  recompense  only  when  they  may  be 
compelled  to  ask  like  protection  from  the  community.  The  con- 
stitution merely  recognizes  and  declares,  but  docs  not  create  the 
duty.  "Every  person  in  tlie  kingdom,  except  the  sovereign,  may  be 
called  upon  and  is  bound  to  give  evidence  to  the  best  of  his  knowl- 
edge upon  any  question  of  fact  material  and  relevant  to  an  issue  tried 
in  any  of  the  qiteen's  courts,  unless  he  can  show  some  exception  in 
his  favor."  Willes,  J.,  in  Ex  parte  Fernandez,  lo  C.  B.  (N.  S.)  3,  39. 
"For  three  hundred  years  it  has  been  recognized  as  a  fundamental 
maxim  that  the  public  *  *  *  has  a  right  to  every  man's  evidence." 
3  Wig.  Ev.,  sec.  2192. 

It  is  further  suggested  that  the  inquiries  as  to  the  value  of  stock 
in  trade  call  for  the  exposure  of  trade  secrets  which  are  privileged. 
Upon  what  ground  the  average  value  of  the  stock  in  trade  of  a 
trading  or  manufacturing  corporation  can  be  called  a  "trade  secret" 
has  not  been  explained.    But  whatever  view  might  be  taken  as  be- 
tween competitors  in  the  same  line  of  business,  the  amount  of  the 
stock  in  trade  of  such  organizations  is  not  a  matter  which,  as  it 
relates  to  taxation,  they  are  privileged  to  keep  secret.   On  the  con-*  v  ^.^ 
trary,  in  order  to  enable  the  state  to  execute  the  sovereign  power  .''-J 
of  taxation,  such  corporations  are  required  to  make  a  return  to  tliej  •\^ 
taxing  officers  each  year  of  the  amount  of  such  stock.   P.  S.,  ch.  55, |=)^'* 
sec.  7,  cl.  6 ;  lb.,  ch.  57,  sees.  4-8.  The  matter  is  public — not  secret,      i 

In  the  legal  search  for  truth  made  for  the  protection  of  members 
of  the  community,  the  parties  and  the  state  are  entitled  to  all  evi- 
dentiary matter  in  the  knowledge  or  control  of  each  member  of  the 
community  which  will  aid  the  inquiry.  As  to  some  matters  greater 
injustice  would  be  done  by  compelling  the  witnesses  to  disclose  than 
by  determining  the  controversy  without  their  aid.  Such  matters  are 
exceptions  to  the  general  duty  to  give  evidence.  3  Wig.  Ev.,  sees. 
2192,  2193.^^   As  the  questions  which  the  witnesses  have  refused  to 


""What  the  state  of  the  law  actually  is  would  be  difficult  to  decide  pre- 
cisely. It  is  clear  that  no  absolute  privilege  for  trade  secrets  is  recognized. 
On  the  other  hand,  courts  are  apt  not  to  require  disclosure  except  in  such 
cases  and  to  such  extent  as  may  appear  to  be  indispensable  for  the  ascertain- 
ment of  truth.  More  than  this,  in  definition,  can  as  j-et  hardly  be  ventured." 
Wigmore  on  Evidence,  vol.  Ill,  §  2212.  Compare  Tetlow  \^  SmiQiirmti,_JiS 
Phi1a__(Pa/>  T7n  <-tSSt^  ;  Star  K.  P.  Co.  v.  Greemvood,  3  Ont.  280  (1883)  ; 
Moxie  Nerve  Food  Co.  v.  Beach,  35  Fed.  465  (1888)  ;  Dohson  v.  Graham,  49 
Fed.  17  (1889)  ;  Gorham  Mfg.  Co.  v.  Emery  Bird  Thayer  Dry-goods  Co.,  92 
Fed.  774  (1899)  ;  Herreschoff  v.  Kniefsch,  127  Fed.  492  (1904)  ;  International 
Curtis  Marine  Turbine  Co.  v.  Cramp  Ship,  &c.,  Co.,  176  Fed.  925  (1910)  ;  Bur- 
nett v.  Phalon,  11  Abb.  Pr.  (N.  Y.)  157  (i860)  ;  Saccharine  Corp.  v.  Chem- 
icals &  Drugs  Co.,  L.  R.  (1900)  2  Ch.  Div.  556;  In  re  Park,  138  Fed.  421 
(1905)  ;  In  re  Lathrop-Haskins  &  Co.,  184  Fed.  534  (1910)  ;  In  re  Bolster, 
59  Wash.  655,  110  Pac.  547  (1910).  See  also  State  v.  Davis,  68  W.  Va.  142,  69 
S.  E.  639  (1910)  ;  Wilson  v.  U.  S.,  221  U.  S.  361,  55  L.  ed.  771,  31  Sup.  Ct.  538 
(191 1 )  ;  American  Lithographic  Co.  v.  ll'crckmcistcr,  221  U.  S.  603,  55  L.  ed. 
873,  31  Sup.  Ct.  676  (1911)  ;  Ex  parte  Gould,  60  Tex.  Cr.  442,  132  S.  W.  364, 
31  L.  R.  A.  (N.  S.)  835  and  note  (1910).  In  bankruptcy  proceedings,  In  re 
^V heeler,  158  Fed.  603  (1907). 


o 


§2  TRIAL 


answer  arc  not  privileged,  the  plaintiffs  are  as  a  matter  of  law 
entitled  to  the  evidence  asked  for.  But  while  it  is  the  duty  of  wit- 
nesses to  furnish  all  the  facts  in  tlicir  possession  which  are  not 
privileged,  the  performance  of  that  duty  should  not  be  made  any 
more  unpleasant  or  arduous  than  is  necessary.  There  seems  to  be 
considerable  doubt  whether  the  question  as  to  the  price  paid  for  the 
interest  in  the  John  B.  Varick  Company  wall  be  material  at  the  trial ; 
and  as  tlie  witness  does  not  wish  to  make  the  same  public,  should 
he  volunteer  to  attend  the  hearing  before  the  referees  the  question 
should  not  be  insisted  upon  in  the  deposition."^** 
The  motions  are  granted. 


S^     IN  RE  THAW. 
United  States  District  Court,  W.  Dist.  Pa.,  1908. 

172  ¥cd.  288" 

Young,  J. :  This  is  a  writ  of  habeas  corpus  ad  testifacandum. 
The  respondent  moves  the  court  to  quash  the  writ  and  dismiss  the 
proceeding. 

The  writ  w^as  granted  upon  the  petition  of  the  relator,  setting 
out  that  the  evidence  of  Henry  Kendall  Thaw  was  necessary  in  3. 
certain  proceeding  in  bankruptcy,  pending  in  this  district.  As  is 
customary  in  such  proceedings,  it  not  appearing  from  the  petition 
that  the  writ  ought  not  to  issue,  the  usual  order  was  made,  allowing 
the  writ,  and  the  case  now  comes  before  us  to  determine  the  whole 
matter.  It  is  not  in  the  nature  of  an  appeal  from  the  order  of  the 
court  granting  the  writ,  but  is  the  proper  and  orderly  consideration 
of  the  whole  matter  after  the  service  of  the  writ  and  the  return  of 
the  respondent. 

It  appears  from  the  record  that.  Thaw  having  filed  his  petition 
in  bankruptcy,  it  became  necessary  to  subject  him  to  the  usual  ex-1 
amination  provided  by  the  Act  of  Congress  Act  July  i,  1898,  ch. ' 


"A  subpoena  duces  iecuvi  must  state  with  reasonable  certainty  and  pre- 
cision the  particuhir  documents  desired.  An  order  to  produce  all  papers  con- 
cerning the  matter  in  dispute  is  not  sufficiently  specific.  American  Car  6" 
Foundry  Co.  v,  Alexandria  IV.  Co.,  221  Pa.  52Q,  70  Atl.  867  (1908)  ';' Attorney' 
General  V.  lyUson,  9  Sim.  526  (1839)  ;  Lee  v.  Angas,  L.  R.  2  Eq.  59  ( 1866)  ; 
United  States  v.  Babcock,  3  Dillon  (U.  S.)  566,  Fed.  Cas.  No.  14484  (1876)  ; 
Ex  parte  Brown,  72  Mo.  83,  27  Am.  Rep.  426  (1S80)  ;  In  re  Storror,  63  Fed.  564 
(1S94)  ;  Carson  v.  Hozvlcy,  82  Minn.  204,  84  N.  W.  746  (1901)  ;  Dancel  v. 
Goodyear  Shoe  Machinery  Co.,  128  Fed.  753  (1904)  ;  Miller  v.  Mutual  Reserve 
Fund  Life  Assn.,  139  Fed.  864  (1905)  ;  Hale  v.  Henhel,  201  U.  S.  43,  26  Sup. 
Ct.  370,  50  L.  ed.  652  (1906)  ;  United  States  v.  Terminal  R.  Assn.,  154  Fed. 
268  (1907)  ;  Ex  parte  Gould,  60  Tex.  Cr.  442,  132  S.  W.  364  (1910).  A  sub- 
poena duces  tecum  can  only  be  used  to  compel  the  production  of  documentary 
evidence.  In  re  Shephard,  3  Fed.  12  (1880)  ;  Johnson  Steel  St.  R.  Co.  v. 
North  Branch  Steel  Co.,  48  Fed.  191  (1891). 

''A  petition  for  revision  of  the  order  of  the  district  court  in  this  case  wa^ 
dismissed  by  the  circuit  court  of  appeals,  166  Fed.  71. 


IN  RE  THAW  383 

541,  30  Stat.  544,  U.  S.  Comp.  Stat.  1901,  p.  3418.  The  referee, 
having  made  an  order  for  his  examination,  it  was  found  that  he  was 
beyond  the  jurisdiction  of  the  court,  and  in  the  custody  of  Dr.  Lamb, 
superintendent  of  tlie  Matteawan  State  Hospital  for  the  Criminal 
Insane  in  the  state  of  New  York,  where  he  had  been  committed  by 
the  Supreme  Court  of  the  state  of  New  York  as  an  insane  criminal. 
This  writ  was  then  allowed,  directed  to  Dr.  Lamb,  to  produce  the 
body  of  the  prisoner  to  testify  in  the  bankruptcy  matter  now  pend- 
ing in  this  court. 

Section  753  of  the  Revised  Statutes  (U.  S.  Comp.  Stat.  1901,  p. 
952)®*  provides  that: 

"The  writ  of  habeas  corpus  shall  in  no  case  extend  to  a  prisoner 
in  jail,  unless,"  among  other  tilings,  "it  is  necessary  to  bring  the 
prisoner  into  court  to  testify." 

We  have,  then,  in  this  section  the  authority  to  grant  the  writ 
to  bring  a  prisoner  from  his  place  of  confinement  to  testify ;  but  the 
power  should  only  be  exercised  when  there  is  necessity  of  having  the 
evidence  of  the  prisoner.  Unless  the  necessity  is  so  great  that  the 
ends  of  justice  may  be  defeated  if  the  evidence  were  not  produced, 
the  court  of  the  jurisdiction  where  the  evidence  is  needed  will  be 
slow  to  grant  a  writ  which  will  remove  a  person  confined  by  the 
court  of  another  jurisdiction  from  his  place  of  confinement.  The 
comity  that  exists  between  courts,  the  reluctance  of  federal  courts 
to  interfere  with  the  jurisdiction  of  state  courts,  will  and  ought  to 
restrain  us  from  interfering  with  the  orderly  and  effective  adminis- 
tration and  execution  of  the  law  in  sister  courts. 

After  a  carefvil  examination  of  this  record  in  the  light  of  the 
law  and  practice,  as  we  understand  it  and  have  indicated,  we  have 
concluded  that  no  necessity  has  arisen  for  the  bringing  of  the  pris- 
oner away  from  his  proper  place  of  confinement  into  the  district. 
If-his  evidence  is  necessary,  his  deposition  can  be  taken.  Section  21, 
els.  "a"  and  "b,"  of  the  bankrupt  act  (act  July  i,  1898,  ch.  541, 
30  Stat.  552;  U.  S.  Comp.  Stat.  1901,  p.  3430),  provide  all  the 
means  for  a  thorough  examination  of  the  bankrupt. 

The  writ  must  therefore  be  quashed,  and  the  petition  dismissed, 
with  costs.^^ 


**See  also  N.  Y.  Code  Civ.  Proc,  §  2008  et  seq. ;  California  Code  Civ. 
Proc,  §§  1995-7.  In  England  under  the  Prison  Act  of  1898  (61  and  62  Vict. 
Ch.  41)  §  II,  a  Secretary  of  State  on  proof  that  the  presence  of  any  prisoner 
at  any  place  is  required,  in  the  interest  of  justice,  may,  by  writing  under  his 
hand,  order  that  the  prisoner  be  taken  to  that  place.  See  also,  rules  of  Su- 
preme Court,  order  XXXVI,  rule  35;  Jenks  v.  Ditton,  76  L.  T.  591  (1897). 
In  Weldon  v.  Neal,  L.  R.  15  Q.  B.  D.  471  (1885),  the  court  refused  a  habeas 
corpus  to  a  party  to  a  suit,  in  custody,  to  enable  her  to  appear  in  court  to 
argue  in  person  a  rule  for  a  new  trial. 

''"'Adams  v.  ,  3  Keb.  51   (1672)  ;  Gccry  v.  Hopkins,  2  Ld.  Raym.  851 

(1702);  Re.r  v.  Burhage,  3  Burr.  1440  (1763)  ;  Rex  v.  Rodda.n,  Cowp.  672 
{1777)  ;  In  re  Price,  4  East  587  (1804)  ;  Nohle  v.  Smith,  5  Johns.  (N.  Y.) 
357  (1810)  ;  Attornev  General  v.  Faddcn,  i  Price  403  (1815)  ;  People  v.  Stone, 
10  Paige  (N.  Y.)  606  (1844);  Marsden  v.  Overbury,  18  C.  B.  34  (1856); 
State  v.  Kennedy,  20  Iowa  372  (1866)  ;  State  v.  Adair,  68  N.  Car.  68  (1873)  ; 
Ex  parte  Harris,  73  N.  Car.  65  (1875);  Maxwell  v.  Rives,  11  Nev.  213 
(1876)  ;  Roberts  v.  State,  72  Ga.  673  (1S84)  ;  United  States  v.  Bare  field,  23 


3S4  TRIAL 

SECTION  4.     RIGHT  TO  OPEN  AND  CLOSE. 

WESTERN  AND  ATLANTIC  RAILROAD  COMPANY 
^  z:  BROWN. 

Supreme  Court  of  Georgia,  1897. 
102  Ga.  13. 

Action  for  dama£::es  before  Judge  Milner,  Whitefield  Superior 
Court,  October  term,  1896. 

Brown  sued  the  railroad  company  for  $500,  by  reason  of  the 
neghgent  kilHng  of  a  jennet.  The  defendant  admitted  the  kiUing,  but 
denied  that  tlie  jennet  was  worth  $500  or  any  other  large  sum,  and 
denied  that  the  killing  was  due  to  any  fault  or  negligence  on  the  part 
of  the  defendant  or  its  servants.  There  was  a  verdict  for  the  plain- 
tiff for  $108,162/3  and  costs  of  suit  A  motion  for  a  new  trial  was 
overruled,  and  defendant  excepted.  The  motion  alleges,  in  addition 
to  the  general  grounds,  that  tlie  court  erred:  In  ruling  that  the 
plaintiff  was  entitled  to  the  opening  and  conclusion,  the  defendants* , 
attorneys  stating  to  the  court  before  the  argument  began  that  de-jl 
fendant  admitted  the  killing,  and  the  law  then  implied  negligence, 
which  made  a  prima  facie  case  for  recovery.^'* 

Little,  J. :  Before  the  argument  of  the  case  began,^^  counsel  for 
defendant  admitted  the  killing  of  the  animal  to  recover  for  which 


Fed.  136  (1885)  ;  Ex  parte  Marmaduke,  91  Mo.  228,  4  S.  W.  91,  60  Am.  Rep. 
250  (1886)  ;  People  v.  U'illard,  92  Cal.  482,  28  Pac.  585  (1891)  ;  Roberts  v. 
State,  94  Ga.  66,  21  S.  E.  132  (1894)  ;  People  v.  Sebring,  14  Misc.  31,  35  N.  Y. 
S.  237  (1895)  ;  Hancock  v.  Parker,  100  Ky.  143,  37  S.  W.  594  (1896)  ;  Hayden 
V.  Comm.,  140  Ky.  634,  I3i  S.  W.  521  (1910). 

In  Koeckcr  x.JCoecker.  7  Phjla^  (Pa.)  364  (1820)  it  is  said  by  Paxson,  J., 
"The  writ  of  habTas^cor pus  ad  testificandum  is'  a  common  law  writ,  and  may 
always  be  issued  by  a  common  law  court  in  a  proper  case.  It  may  issue  to 
bring  up  a  witness  who  is  in  prison  charged  with  crime,  or  under  sentence 
therefor,  or  who  is  under  execution  for  debt,  or  where  he  is  under  duress,  as 
a  seaman  on  board  of  a  man-of-war.  The  proper  practice  is  to  apply  for  a 
rule  to  show  cause  based  upon  an  affidavit  setting  forth  _  substantially : 
1st,  That  the  witness  is  a  prisoner,  or  under  duress.  2d,That  his  testimony  is 
material,  and  if  he  has  to  be  brought  a  great  distance,  the  materiality  of  his 
testimony  should  appear  from  the  affidavit;  and  3d,  If  the  witness  is  not  in 
prison,  that  he  or  she  is  willing  to  attend,  and  it  has  been  held  that  in  such 
case  the  witness  should  have  been  served  with  a  subpoena." 

"Part  of  the  opinion  of  the  court  is  omitted. 

"The  weight  of  authority  is  in  favor  of  the  view  that  the  burden  of 
proof  and  consequent  right  to  open  and  close  must  be  determined  at  the 
commencement  of  the  trial  and  from  an  inspection  of  the  pleadings  only. 
Lake  Ontario  Nat.  Bank  v.  Judson,  122  N.  Y.  278,  25  N.  E.  367  (1890)  ;  Pontt- 
fex  v.  Jolly,  9  Car.  &  P.  202  (1839)  ;  Central  of  Georgia  R.  Co.  v.  Morgan,  no 
Ga.  168  (1899)  ;  Hollander  v.  Farber,  52  Misc.  507,  102  N.  Y.  S.  506  (1907)  ; 
Jnrh.nn  V  Winrhrster,  4  Pall.  (Pa.)  20.^  (i8oo'^  ;  Miller  Brew.  Co.  v.  De 
France,  90  Iowa  395,  57  N.  W.  959  (1894).  In  Illinois  the  trial  court  may  in 
its  discretion  permit  the  defendant,  on  going  to  trial,  to  withdraw  the  general 
issue  and  rely  on  special  pleas,  and  in  such  case  defendant,  having  the  affirma- 
tive, has  the  right  to  open  and  close.  Gardner  v.  Meeker,  169  111.  40,  48  N.  E. 
307  (1897). 


PYLES   V.    PIEDMONT    MT.    AIRY    GUANO    CO.  385 

the  suit  was  brought,  and  asked  for  the  opening  and  conclusion, 
which  was  denied.  We  think  the  denial  was  right.  The  effect  of  the 
admission  did  not  go  far  enough  to  shift  the  burden.  To  entitle  the 
plaintiff'  to  recover  he  must  have  shown  two  things:  the  killing;  the 
value.  The  killing  being  shown,  the  law  would  presume  negligence ; 
but  it  would  not  have  presumed  a  value  as  we  understand  it.  The 
burden  is  not  shifted  until  the  admissions  show  a  prima  facie  right 
to  recover,  to  rebut  which  the  defendant  undertakes.  So  long  as  any 
portion  of  the  burden  of  making  out  his  case  by  proof  rests  on  the 
plaintiff,  he  is  entitled  to  open  and  conclude,  imless  the  defendant 
introduces  no  evidence.^^  The  admissions  here  went  only  half-way 
the  road  the  plaintiff  had  to  travel  before  he  could  reach  a  stopping 
place ;  the  other  half  proved  to  be  a  stony  path  for  him,  but  he 
finally  passed  over  it  and  established  that  he  had  done  so  to  the  satis- 
faction of  the  jury ;  and  there  being  evidence  to  sustain  their  verdict, 
we  will  not  interfere. 
Judgment  affirmed."^ 


/° 


PYLES  V.  PIEDMONT  MT.  AIRY  GUANO  COMPANY. 

Supreme  Court  of  Florida,  1909. 

58  Fla.  348 


Error  to  Circuit  Court,  Marion  county.  Action  by  the  Piedmont 
Mt.  Airy  Guano  Company  against  Samuel  R.  Pyles.  Judgment  for 
plaintiff,  and  defendant  brings  error. 

Whitfield,  C.  J. :  The  Piedmont  Mt.  Airy  Guano  Company,  a 
corporation,  brought  an  action  against  Samuel  R.  Pyles  in  the  Circuit 
Court  for  Marion  county  upon  an  indorsement  of  a  note  for 
$1,142.30,  dated  July  i,  1904,  given  by  George  Close  to  the  plaintiff 
below. 


''Harvey  V.  Mitchell,  2  Moo.  &  R.  366  (1841)  ;  Commontvealth  v.  Hoe,  26 
Leg.  Int.  124  ( 1869)  ;  East  Tenn.,  Va.  &  G.  R.  Co.  v.  Fleetwood,  90  Ga.  23, 
15  S.  E.  778  (1892). 

''^Brunswick  &  IV.  R.  Co.  v.  Wiggins,  113  Ga.  842,  39  S.  E.  551,  61  L.  R.  A. 
513  and  note  (1901).  See  also  Best  on  Right  to  Begin,  §  40  et  seq.  Where 
the  case  stated  in  the  complaint  upon  a  money  demand  in  contract  is  admitted, 
and  nothing  is  left  for  a  complete  determination  in  the  plaintiff's  favor,  but  a 
mere  computation  of  interest  on  the  demand  for  the  period  claimed,  the  de- 
fendant, upon  an  affirmative  defense  set  up  in  his  answer  has  the  right  to 
open  and  close.  Brennan  v.  Security  Life  Ins.,  &c.,  Co.,  4  Daly  (N.  Y.)  296 
(1872).  So  where  the  amount  of  plaintiff's  claim  is  admitted  and  defendant  re- 
lies on  a  counterclaim.  Pozver  v.  Turner,  27  Mont.  52,  97  Pac.  950  (1908). 
Where,  however,  the  plaintiff  seeks  to  recover  actual  damages  of  an  unascer- 
tained amount,  he  is  entitled  to  begin,  although  the  affirmative  of  the  issue  may, 
in  point  of  form,  be  with  the  defendant.  Carter  v.  Jones,  i  Moo.  &  R.  281 
(1833)  ;  Mercer  v.  IVhall,  5  Ad.  &  El.  (N.  S.)  447  (1845)  ;  Sawyer  v.  Hop- 
kins, 22  Maine  268  (1843);  Huntington  v.  Conkey,  2S  Barb.  (N.  Y.)  218 
(i860)  ;  Baltimore  &  O.  R.  Co.  v.  MclVhinney,  36  Ind.  436  (1871)  ;  Cunning- 
ham v.  Gallagher,  61  Wis.  170,  20  N.  W.  925  (1884)  ;  Elder  v.  Oliver,  30  Mo. 
■App..p75  (18^)  ;  Railway  Co.  v.  Taylor,  $7  Ark.  136  (1893)  ;  Parrish  v.  Sun 
Printing  &  P.  Assn.,  6  App.  Div.  585,  39  N.  Y.  S.  540  (1896)  ;  Chicago  &  A. 
R.  Co.  V.  Hill,  130  111.  App.  218  (1906)  ;  Baltimore  City  v.  Hurlock,  113  Md.  674, 
78  Atl.  558  (1910)  ;  Mann  v.  Dempster,  181  Fed.  76  (1910). 

2£ — Civ.  Proc. 


3^6  TRIAL 

Amonj:f  tlic  (lcfcn?cs  interposed  was  that  the  notes  sued  on 
became  mixed  and  minjjjled  with  other  notes  made  to  the  defendant 
and  the  indorsement  "was  a  result  purely  of  accident,  mistake  and 
inadvertence"  and  the  defendant  "did  not  then  have  any  intention 
whatever  of  signing  the  said  note."  "^ 

Error  is  assigned  on  the  rulings  of  tiie  court  that  the  plaintiffj 
have  the  opening  and  conclusion  of  the  argument.  ^ 

In  the  ahsence  of  a  statute  or  rule  upon  the  suhject,  where  the 
plaintiff  has  anything  to  prove  in  order  to  get  a  verdict,  whether  in 
an  action  ex  contractu  or  ex  delicto,  and  whether  to  establish  his 
right  of  action  or  to  fix  the  amount  of  his  damages,  the  right  to 
begin  and  conclude  the  argument  to  the  jury  belongs  to  the  plaintiff. 
The  unvarying  test  to  be  applied  is  which  party  would,  upon  the 
pleadings  and  record  admissions  and  without  any  proof,  be  entitled 
to  a  verdict.  If  the  plaintiff  would  succeed  on  the  pleadings  alone, 
the  defendant  may  begin  and  conclude  the  argument;  if  the  defend-- 
ant  would  succeed,  then  there  is  something  for  the  plaintiff  to  prove 
at  the  outset,  and  the  plaintiff  may  begin  and  conclude  the  argument 
to  the  jury.  Where  there  arc  several  issues,  and  the  plaintiff  has 
anytliing  to  prove  under  any  one  of  them  in  the  first  instance,  in' 
order  to  recover,  the  right  to  open  and  close  the  argument  is  with 
him.  In  every  case  where  the  general  issue  or  a  general  or  special 
denial  is  pleaded,  the  right  to  open  and  close  is  with  the  plaintiff,  for 
then  he  has  something  to  prove  in  the  first  instance,  no  matter  what 
may  be  the  nature  of  the  controversy,  or  what  special  defenses  may 
be  set  up.'^^ 

In  this  case  the  action  is  on  a  promissory  note;  but  there  is  a 
common  count  and  a  plea  of  the  general  issue,  which  requires  the 
plaintiff"  to  prove  something  at  least  before  he  can  recover.  There- 
fore the  court  properly  ruled  that  the  right  to  open  and  conclude 
the  argument  to  the  jury  was  with  the  plaintiff. 

Judgment  affirmed.''*^ 


"Part  of  the  opinion  of  the  court  is  omitted. 

"i  Thompson  on  Trials,  §  228;  Abbot's  Trial  Brief,  395;  Brunswick  & 
W.  R.  Co.  V.  Wiggins,  113  Ga.  842,  39  S.  E.  551,  6x  L.  R.  A.  513  (1901). 

•'Accord:  Bates  v.  Forcht,  89  Mo.  121,  i  S.  W.  120  (1886);  Harvey  v. 
Broiiilette,  61  Vt.  525,  17  Atl.  722  ( 1889)  ;  Staner  v.  Joyce,  120  Ind.  99,  22  N.  E. 
89  (i88g).  Compare  Barker  v.  Malcolm,  7  Car.  &  P.  loi  (1835)  ;  Conselyea 
V.  Su-ift,  103  N.  Y.  604  (1886)  ;  Montgomery  v.  Hunt,  93  Ga.  438,  21  S.  E. 

59  (1893). 

The  general  rule  is  that  he  who  has  the  affirmative  of  the  issue  shall 
begin  and  close.  Heidon  v.  Ibgrave,  3  Leon.  162,  Gouldsb.  23  (1586)  ;  Leech 
V.  Armitaae^j2j)^\\.  (Pa.)  \2^  (1791)  ;  Mercer  v.  Whall,  5  Ad.  &  El.  (N.  S.) 
447  (1845)  {Booth  V.  Millns,  15  M.  &  W.  669  (1846)  ;  Shadbolt  v.  Findeisen, 
88  111.  App.  432  (1900)  ;  Zweibel  v.  Myers,  69  Nebr.  294,  95  N.  W.  597  (1903)  ; 
Harrison  V.  Russell,  17  Idaho  196,  105  Pac.  48  (1909)-  Where  the  defendant 
pleads  the  general  issue  or  a  general  denial,  the  right  to  open  and  close  is 
with  the  plaintiff.  Ayer  V.  Austin,  22,  Mass.  225  ( 1828)  ;  Kearney  v.  Cough, 
5  Gill  &  T.  (Md.)  457  (1833);  Toppan  v.  Jenness,  21  N.  H.  232  (1850); 
Price  V.  Seward,  Car.  &  M.  22,  (1841)  ;  Cox  v.  Vickers,  35  Ind.  27  (1870)  ; 
Hudson  V.  IVetherington,  79  N.  Car.  3  (1878);  Farrington  v.  Jennison,  67 
Vt.  569,  32  Atl.  641  (1895)  ;  Yjm  S larch  V  Van  S'^nrrfi,-4^6-£a-54S.  46  Atl. 
1062  (1900)  ;  Semler  Milling  Co.  v.  Fyffe,  127  111.  App.  514  (1906)  ;  Convert 
V.  Bishop  B.  Co.,  152  111.  App.  516  (1910)  ;  Piercy  v.  Frankfort  Marine  Acci- 


DENNY   V.    BOOKER  387 

DENNY  V.  BOOKER. 

Court  of  Appeals  of  Kentucky,  i8ii. 
2  Bibh  (Ky.)  427. 

This  was  an  action  of  detinue,  brought  by  John  P.  Booker,  in  the 
Jefferson  Circuit  Court,  against  Ann  Denny  for  a  negro  girl  slave, 
named  Rachel.  Plea  that  the  slave  was  in  the  possession  of,  and 
belonged  to  Edward  Denny,  at  the  time  of  his  death,  and  that  she 
had  taken  out  letters  of  administration  of  the  estate,  and  held  the 
negro  by  virtue  thereof ;  issue  and  verdict  and  judgment  for  the 
plaintiff  in  the  court  below,  from  which  Denny  has  appealed  to  this 
court. "^ 

Clark,  J. :  The  second  assignment  of  error  is,  the  court  erred 
in  refusing  to  permit  the  counsel  for  the  plaintiff  in  error  to  open 
and  conclude  the  argument.  It  is  a  rule  of  practice  that  the  person' 
holding  the  affirmative  of  a  proposition  has  the  right  to  open  and, 
conclude  the  argument,  and  if  tliis  right  is  withheld,  it  is  said  in  the^ 
case  of  Cliurchill  v.  Rogers  ^®  to  be  error. 

dent  Co.,  142  App.  Div.  839,  127  N.  Y.  S.  354  (iQn)-  The  plaintiff  begins 
and  has  the  right  to  reply  where  the  defendant's  pleadings,  or  any  part  of 
them,  deny  the  whole,  or  any  part,  of  the  plaintiff's  pleadings,  so  as  to  leave 
any  affirmative  allegation  on  his  side  to  be  established  by  proof.  Inglis  v^ 
Lnglts  2  Pall.  (Pa.)  4=;.  i  L.  ed.  282  (1790)  ;  Hodges  v.  Holder,  3  Camp.  366 
(1813)  ;  Davidson  v.  Henop,  i  Cr.  (C.  C.)  2S0  (1804)  ;  Beall  v.  Newton,  i 
Cr.  (C.  C.)  404  (1807)  ;  Jackson  v.  Hesketh,  2  Stark.  454  (1819)  ;  Bedell  v. 
Russell,  I  Ry.  &  Moo.  293  (1825)  ;  Cotton  v.  James,  3  Car.  &  P.  505  (1829)  ; 
Kimble  v.  Adair,  2  Blackf.  (Ind.)  320  (1830)  ;  Jackson  v.  Pittsford,  8  Blackf. 
(Ind.)  194  (1846)  ;  Lexington  Fire,  Life,  &c.  Ins.  Co.  v.  Paver,  16  Ohio  324 
(1847)  ;  Belknap  v.  Wendell,  21  N.  H.  175  (1850)  ;  Bnzzell  v.  Snell,  25  N.  H. 
474  (1852)  ;  Huffman  v.  Alderson,  9  W.  Va.  616  (1876)  ;  Johnson  v.  Maxwell, 
87  N.  Car.  18  (1S82)  ;  Cilley  v.  Preferred  Ace.  Ins.  Co.,  109  App.  Div.  394, 
96  N.  Y.  S.  282  (1905)  ;  Leesville  Mfg.  Co.  v.  Morgan  Wood  &  Iron  Co.,  75 
S.  Car.  342,  55  S.  E.  768  (1906)  ;  Mitchem  v.  Allen,  128  Ga.  407,  57  S.  E.  721 
(1907)  ;  Wright  v.  Collins,  in  Va.  806,  69  S.  E.  042  (1911)  ;  Coffman  v.  Spo- 
kane Chronicle  Pub.  Co.,  65  Wash,  i,  117  Pac.  596  (1911)  ;  where,  however, 
the  burden  of  proof  is  upon  the  defendant  to  establish  the  only  issue  in  the 
cause,  he  should  be  given  the  right  to  open  and  close  the  argument.  Gibson  v. 
Reiselt,  123  111.  App.  52  (1905)  ;  Heilbronn  v.  Hcrsog,  165  N.  Y.  98  (1900); 
Viehman  v.  Boelter,  105  Minn.  60,  116  N.  W.  1023  (1908)  ;  Darrell  v.  Sparks, 
142  Mo.  App.  460,  127  S.  W.  103  (1910).  Contra:  Dorr  v.  Tremont  Nat.  Bank, 
128  Mass.  349  (1880). 

''Part  of  the  opinion  of  the  court  is  omitted. 

"Hardin  (Ky.)  182  (1808).  Accord:  Dazns  v.  Mason,  21  Mass.  156 
(1826)  ;  Jtidge  of  Probate  v.  Stone,  44.  N.  H.  593  (1863)  ;  Colwell  v.  Brower, 
75  111.  516  (1874)  ;  Porter  v.  Still,  63  Miss.  357  (1885)  ;  Lake  Ontario  Nat. 
Bank  v.  Jndson,  122  N.  Y.  278,  25  N.  E.  367  (1890)  ;  Smith  v.  Trader's  Nat. 

'Bank,  74  Tex.  541,  12  S.  W.  221  (1889)  ;  Merzbach  v.  Ne-iv  York,  163  N.  Y. 
16,  57  N.  E.  96  (1900) ;  Nagle  v.  Schnadt,  239  111.  595,  88  N.  E.  178  (1909). 
Elsewhere  it  has  been  held  a  matter  in  the  discretion  of  the  trial  court  to 
be  interfered  with  only  in  cases  of  injustice  or  abuse  of  discretion.  Robeson 
v.  Whit(>sidps,  t6  Sprgr  ^  R  (Pa.-)  -^20  (1827)  ;  Brans  ford  v.  Freeman,  i 
Eng.  L.  &  Eq.  444  (1850)  ;  Geach  v.  Ingall,  14  M.  &  W.  95  (1845)  ;  Smith  v. 
Coopers.,  9  Iowa  376  (1859)  ;  Lucas  v.  Sullivan,  33  Mo.  389  (1863)  ;  Smith  v. 

,  jrasier^s?,  Pa.  St.  226  .'•i866'L:  Lancaster  v.  Collins,  115  U.  S.  222,  29~Cred. 

'  373.  6  Sup.  Ct.  33  (1885)  ;  Aultman  v.  Falkuni,  47  Minn.  414,  50  N.  W.  471 
(1891)  ;  Oexner  v.  Loehr,  133  Mo.  App.  211,  113  S.  W.  727  (1908). 


3v*^S  TRIAL 

But  it  i.^  not  conceived  that  a  parly  by  pleadincf  affirmatively 
what  only  amounts  to  the  negative  of  the  issue  can  ac(iuirc  this  right. 
The  plea  filed  by  the  plaintiit  in  error  is  in  reality  nolhing  more  than 
the  general  issue  of  iion  dctlnct,  and  would  on  that  account  have 
been  bad  on  demurrer.'"  It  did  not  release  the  plaintiff  below  from 
proving  title  to  the  slave,  nor  was  the  burden  on  the  defendant 
tliercby  increased. 

Judgment  affirmed.^''  L 

SECTION  5.     DEMURRER  TO  EVIDENCE. 

COPELAND  V.  NEW  ENGLAND  INSURANCE  CO. 

Supreme  Judicial  Court  of  Massachusetts,  1839. 

39  Mass.  135. 

Morton,  J.,  delivered  the  opinion  of  the  court.^^  This  is  assump- 
sit on  a  policy  of  insurance  on  the  brig  Adams.  It  is  alleged 
that  the  brig  was  totally  lost  upon  a  coral  reef  near  the  Isle  of 
Pines  on  the  coast  of  Cuba.  The  admissions  of  the  parties  re- 
duced the  case  to  the  simple  question  whether  the  loss  was 
caused  by  any  of  the  perils  insured  against.  To  prove  the  affirma- 
tive the  plaintiffs  introduced  the  testimony  of  four  witnesses, 
and  here  submitted  their  case.  The  defendants  believing  this 
evidence  to  be  insufficient  to  support  the  action  demurred  to  it. 
The  plaintiff  joined  in  the  demurrer ;  and  the  case  has  been 
argued  upon  the  evidence  thus  brought  before  us. 

This  mode  of  trial  is  very  unusual  in  this  state.  No  case  of  the 
kind  has  happened  since  the  commencement  of  our  reports;  and 


"Richards  v.  Frankum,  6  M.  &  W.  no  (1840). 

"Averments  affirmative  in  form  but  negative  in  substance  do  not  shift 
the  burden  of  proof  or  give  to  the  party  making  them  the  right  to  open 
and  close.  Smith  v.  Davics,  7  Car.  &  P.  307  (1836)  ;  Crowley  v.  Page,  7  Car. 
&  P.  789  (1837)  ;  Chambers  v.  Hunt,  18  N.  J.  L.  339  (1841)  ;  Haines  v.  Kent, 
II  Ind.  126  (1858);  Beatty  v.  Hatcher,  13  Ohio  St.  115  (1861)  ;  Shiilse  v. 
MclVilliams,  104  Ind.  512,  3  N.  E.  243  (1885);  Georgia  R.  R.  v.  Williams, 
74  Ga.  723  (1885)  ;  Florence  Oil  &c.  Co.  v.  Farrar,  109  Fed.  254  (1901)  ; 
Barker  Cedar  Co.  v.  Roberts,  23  Ky.  L.  1345  (1901)  ;  Doerhoefer  v.  Sliezv- 
maker,  29  Ky.  L.  1193,  97  S.  \\^  7  (1907).  To  entitle  a  defendant  to  open 
and  close  because  of  admissions  in  his  pleadings,  such  admissions  must  cover 
the  plaintiff's  entire  cause  of  action,  so  as  to  dispense  with  the  necessity  of 
anj'  proof  on  plaintiff's  part  to  make  out  a  prima  facie  case.  Cammack  v. 
Nezi'man,  86  Ark.  249,  1 10  S.  W.  802  (1908);  Hyatt  v.  Clements,  65  Ind.  12 
(1878)  ;  Benedict  v.  Penfield,  42  Hun  (N.  Y.)  176,  4  N.  Y.  St.  685  (18S6)  ; 
Abel  V.  Jarratt,  100  Ga.  732,  28  S.  E.  453  (1897)  ;  Sorensen  v.  Sorcnscn,  68 
Xebr.  483,  94  N.  W.  540  (1903)  ;  Louisville  H.  &  St.  L.  R.  Co.  v.  Schwab,  127 
Ky.  82,  105  S.  W.  no  (1907).  Where,  however,  the  defendant  has  the  affirma- 
tive of  the  issue,  the  fact  that  the  complaint  alleges  facts  not  essential  for 
the  plaintiff  to  aver  or  prove  which  are  denied  by  the  answer,  will  not  deprive 
defendant  of  his  right  to  open  and  close.  Murray  v.  New  York  Life  Ins.  Co., 
85  N.  Y.  236  (1881)  ;  Hurliman  v.  Scckendorf,  9  Misc.  264,  29  N.  Y.  S.  740 
(1894);  Lewis  v.  Donahue,  27  Misc.  514,  58  N.  Y.  S.  319  (1899). 

"The  statement  of  facts  and  part  of  the  opinion  of  the  court  are  omitted. 


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COPELAND  V.    NEW    ENGLAND   INS.    CO.  389 

it  is  believed  that  very  few  instances  occurred  before  that  time.^^ 
But  however  unusual  the  resort  to  this  mode  of  trial  may  be,  it 
can  not  be  questioned  that  the  legal  right  to  demur  to  evidence 
exists  under  proper  regulations  and  restrictions.  However,  as 
its  purpose  seems  to  be,  to  withdraw  facts  from  the  tribunal  spe- 
cially provided  for  their  determination,  it  is  no  favorite  of  our 
system.  And  when  the  hazard  and  disadvantage  which  it  im- 
poses upon  the  party  demurring,  are  duly  considered,^^  and  the 
few  cases  to  which  it  may  properly  apply  are  recollected,  there 
will  be  no  danger  of  its  coming  into  common  practice. 

There  are  undoubtedly  cases,  though  they  are  rare,  in  which  a 
demurrer  to  evidence  may  be  safely  and  properly  taken.  Where 
all  the  evidence  in  a  case  consists  of  written  instruments,  and 
these  are  introduced  by  the  party  having  the  affirmative,  his 
opponent  may  safely  demur  to  the  evidence  and  be  sure  thereby 
to  bring  the  merits  of  his  case  before  the  court.  As  it  would  be 
the  province  of  the  court  to  determine  the  construction  and  legal 
operation  of  the  instruments,  they  would  have,  by  the  conces- 
sion of  the  parties,  all  the  materials  necessary  to  enable  them  to 
determine  the  legal  rights  of  the  parties  in  the  action.  The  facts 
being  thus  before  them,  they  in  applying  the  law  to  them  are  in 
the  exercise  of  their  appropriate  duty. 

_  But  a  demurrer  is  not  confined  to  written  evidence.  Where 
witnesses  positively  testify  to  certain  definite  facts,  and  there  is 
no  discrepancy  between  them,  and  no  other  evidence  to  be 
offered,  a  demurrer  will  properly  bring  these  facts  before  the 
court,  and  enable  them  to  judge  whether  they  will  sustain  the 
action  or  defense  which  they  are  introduced  to  support. 

But  it  not  infrequently  happens,  that  the  plaintifit  or  party 
having  the  affirmative,  attempts  to  support  the  issue  on  his  part 
by  indirect  and  circumstantial  evidence.  And  when  the  posi- 
tions are  to  be  established  by  inferences  from  many  other  facts, 
it  is  difficult,  if  not  impracticable,  to  admit  a  demurrer. 

_  It  may  be  well  here  to  consider  the  effect  of  a  demurrer  to 
evidence.  And  we  shall  do  it  with  the  more  care,  because  we 
apprehend  that  it  was  not  duly  considered  or  perfectly  under- 
stood by  the  counsel  on  either  side.  It  seems  to  have  been  sup- 
posed to  be  an  admission  of  the  truth  of  the  evidence ;  and  the 


Golden  v.  Knowles,  120  Mass.  336  (1876)  ;  Rockwell  v.  Congress  Hotel 
Co.,  237  111.  98,  86  N.  E.  740  (1908).  In  a  number  of  states  the  practice  of 
demurring  to  the  evidence  has  fallen  into  disuse,  having  been  superseded  by 
a  motion  for  a  nonsuit  or  by  a  motion  to  direct  a  verdict  for  the  defendant. 
See  cases  collected  in  Hopkins  v.  Railroad,  96  Tenn.  409,  34  S.  W  1029  32 
L.  R.  A.  354  (1895),  and  Bass  v.  Rublcc,  76  Vt.  39s,  57  Atl.  96^  (1904)  ;  Den- 
man  v.  Johnston,  85  Mich.  387,  48  N.  W.  565  (1891)  ;  Colegrove  \  N  Y  & 
H  R.  Co.,  20  N.  Y.  492,  75  Am.  Dec.  418  (1859)  ;  Bnch  V.  Conrade^iSA  Pa. 
326,  26  Atl.  368  (1893)  ;  Bank  v.  Carr,  i;  Pa.  Super.  Ct.  ^46  (1900)  :  13  P   & 

J-.-^.nf  Pa>_E£C  231^4^  ^  • 

,  *"'He  that  demurs  to  parol  evidence,  engages  in  an  uphill  business.    For 

\every  fact  is  taken  pro  confesso,  which  the  jury  might,  with  the  least  degree 
bf  propriety,  have  inferred  from  his  evidence."  Per  Tilghman  C  t''  in 
Dickey  V.  Schr eider,  3  Serg.  &  R.  (Pa.)  413  (1817).  ' 


'30O  r\iXAL 

court  linve  been  cnlleil  upon,  supposing^  it  all  to  be  true,  to  de- 
termine what  infoiences  may  be  drawn  from  it,  and  whether  it 
would  be  comiictent  for  the  jury  uj)on  it  to  find  a  verdict  for  the 
plaintiffs.  And  it  has  been  argued  that  if  we  would  set  aside  a  ver- 
dict found  for  the  plaintiffs  on  this  evidence,  we  must  render  judg- 
ment for  the  defendants,  on  the  demurrer. 

But  we  think  this  is  a  mistaken  view  of  the  subject  and  fails  to 
give  to  the  demurrer  its  legal  effect.  It  leaves  it  to  the  court  to  draw 
inferences  from  the  circumstances  proved  and  to  judge  of  the  weight 
of  the  evidence,  which  would  be  trenching  upon  the  province  of  the 
jury.  The  eft'ect  of  a  denuu-rer  to  evidence  is  not  only  to  admit  tlie 
truth  of  tlie  evidence,  but  tlie  existence  of  all  the  facts  which  are 
stated  in  tliat  evidence,  or  which  it  conduces  to  prove.  Hence  that 
'most  acute  and  learned  pleader,  Mr.  Justice  Gould,  says  that  this 
demurrer,  "tliough  called  a  demurrer  to  evidence,  is  essentially  a 
demurrer  to  the  facts  shown  in  evidence."  Gould  on  Pleading,  47, 
4S,  49.  As  a  demurrer  to  a  declaration  asks  the  opinion  of  the  court 
upon  the  facts  properly  pleaded,  so  a  demurrer  to  evidence  asks 
their  opinion  upon  the  facts  shown  in  evidence.  In  both  cases  the 
decision  is  purely  a  matter  of  law,  and  can  not  involve  any  questions 
of  fact  on  the  evidence. 

The  true  question  always  raised  by  this  kind  of  demurrer  is  not 
what  is  competent  for  the  jury  to  find,  but  what  the  evidence  tends 
to  prove.  This  view  is  fully  sustained  by  a  most  clear  and  elaborate 
opinion  given  by  the  learned  Lord  Chief  Justice  Eyre,  in  pronounc- 
ing the  judgment  of  the  House  of  Lords  in  the  case  of  Gibson  v. 
Hunter,  2  H.  Blackstone  187.  This  case  contains  a  most  lucid  and 
able  discussion  of  the  whole  subject.  He  says  the  precise  operation 
of  a  demurrer  to  evidence  is  to  take  from  the  jury  and  refer  to  the 
judges  the  application  of  the  law  to  the  fact.  In  the  nature  of  things 
the  facts  are  first  to  be  ascertained.  Where  the  evidence  is  written, 
or  if  in  parol,  is  positive,  definite  and  certain,  the  party  offering  the 
evidence  is  bound  to  join  in  demurrer.  But  the  reason  of  the  rule 
"does  not  apply  to  parol  evidence  which  is  loose  and  indeterminate, 
which  may  be  urged  with  m.ore  or  less  effect  to  a  jury ;  and  least  of 
all  will  it  apply  to  evidence  of  circumstances,  which  evidence  is 
meant  to  operate  beyond  the  proof  of  the  existence  of  those  circum- 
stances, and  to  conduce  to  the  proof  of  the  existence  of  other  facts. 
And  yet  if  there  be  no  demurrer  in  such  cases,  there  will  be  no  con- 
sistency in  the  doctrine  of  demurrers  to  evidence,  by  which  the  appli- 
cation of  the  law  to  the  fact  on  an  issue  is  meant  to  be  withdrawn 
from  a  jury  and  transferred  to  the  judges.  If  the  party  who  demurs 
will  admit  the  evidence  of  the  fact,  the  evidence  of  which  fact  is 
loose  and  indeterminate,  or  in  the  case  of  circumstantial  evidence, 
if  he  will  admit  the  existence  of  the  fact,  which  the  circumstances 
oft'ered  in  evidence  conduce  to  prove,  tliere  will  then  be  no  more 
variance,  in  this  parol  evidence,  than  in  a  matter  in  writing,  and  the 
reason  for  compelling  the  party  who  offers  the  evidence  to  join  in 
demurrer,  will  tlien  apply,  and  the  doctrine  of  demurrers  to  evidence 


COPELAND   V.    NEW    ENGLAND   INS.    CO.  39I 

will  be  uniform  and  consistent."   See  also  M'xddleton  v.  Baker,  Cro. 
Eliz.  752.^* 

This  doctrine  seems  to  be  founded  upon  and  well  supported  by 
the  case  of  Wright  v.  Pindar,  reported  in  Style  34,  and  also  in  Aleyn 
18.   In  Style,  Chief  Justice  Rolle  says  "that  matter  of  fact  ought  to 
be  agreed  in  a  demurrer  to  evidence,  otherwise  the  court  can  not 
proceed  upon  the  demurrer;  for  the  judges  can  not  try  the  matter 
of  fact,  for  that  were  for  the  judges  to  give  the  verdict,  which 
belongs  to  the  jury  to  do."   And  in  Aleyn  18,  the  decision  is  thus  \ 
stated :  "And  it  was  resolved,  that  he  that  demurs  upon  the  evidence  / 
ought  to  confess  the  whole  matter  of  fact  to  be  true,  and  not  refer/' 
that  to  the  judgment  of  the  court.    And  if  the  matter  of  fact  be  V 
uncertainly  alleged,  or  that  it  be  doubtful  whether  it  be  true  or  not, 
because  offered  to  be  proved  only  by  presumptions  and  probabilities, 
and  the  other  party  will  demur  thereupon,  he  that  alleges  the  matter 
can  not  join  in  the  demurrer  with  him ;  but  ought  to  pray  the  judg- 
ment of  tlie  court,  that  he  may  not  be  admitted  to  his  demurrer 
unless  he  will  confess  the  matter  of  facts  to  be  true.   And  for  that 
the  defendant  did  not  so  in  this  case,  both  parties  having  misbehaved 
themselves,  the  court  can  not  proceed  to  judgment."    *    *    * 

Now,  in  the  case  at  bar,  the  defendants  demur  generally  to  evi- 
dence, which  is  circumstantial,  loose  and  indeterminate.  And  so  far 
from  recfting  the  facts  and  conclusions  which  the  evidence  tends  to 
prove,  and  which  they  intend  to  admit,  they  refer  generally  to  all 
evidence  as  it  exists  in  the  form  of  depositions,  consisting  of  great 
variety  of  interrogatories  and  cross-interrogatories,  and  the  answers 
to  them,  which  are  neither  direct  and  positive  nor  consistent.  This 
we  think  to  be  clearly  irregular.  To  quote  the  language  of  Judge 
Story,  "the  defendants  have  demurred,  not  to  facts,  but  to  evidence 
of  facts,  not  to  admissions,  but  to  mere  circumstances  of  presump-  \ 
tion."  85  I 

The  evidence  offered  in  this  case  tends  to  show,  and  undoubtedly 
does  show,  that  the  brig  insured,  in  a  squall  (not  a  severe  one,  to  be 
sure)  ran  upon  a  coral  reef  and  was  totally  lost.  This  proof,  by 
itself,  clearly  would  support  the  plaintiff's  action.  But  the  defend- 
ants contend  that  the  testimony  of  the  same  witnesses  tends  to  show 
that  tlie  vessel  was  run  on  shore  intentionally  or  through  the  gross 
incapacity  of  the  master.  Now  these  are  distinct  substantive  facts, 
which  the  defendants  wish  to  establish,  It  is  true  the  evidence  tends 
strongly,  very  strongly,  to  prove  them.  But  the  defendants  can  not 
avail  themselves  of  these  grounds  of  defense  on  a  demurrer  to  the 
evidence.  If  the  plaintiff's  evidence  does  not  show  a  prima  facie 
case,  the  defendants  may  demur.  But  if  they  wish  to  set  up  any  facts 
in  defense,  they  must  resort  to  tlie  jury  to  have  them  established. 


^s.  c.  Baker's  Case,  5  Co.  Rep.  104  (1600),  and  see  Newis  v.  Lark, 
Plowd.  403,  41 1  (  1871)  ;  Fits  Harris  v.  Boiun,  1  Lev.  87  (1663)  ;  Hurst  v.  Dippo, 
I  Dall.  (U.  S.)  20,  I  L.  ed.  19  (i774)  ;  Miller  v.  Ware,  i  C.  &  P.  237  (1824), 
note;  Nelson  v.  Whitfield,  82  N.  Car.  46  (1880). 

^Young  v.  Black,  7  Cranch  (U.  S.)  565,  3  L.  ed.  440  (1813). 


392  TRIAL 

The  depositions  introduced  by  the  plaintiffs  were  taken  by  the  de- 
fendants, and  thus  tlie  facts  may  be  presented  in  an  order  and  a 
form  most  favorable  to  the  latter.  The  defendants,  too,  by  demur- 
rin:^.  admit  the  facts  which  the  evidence  conduces  to  prove  for  the 
plaintitTs.  and  can  not  avail  themselves  of  such  as  it  tends  to  show 
for  the  defendants.  The  plaintiffs,  by  joining  in  the  demurrer,  did 
not  admit  the  truth  of  that  part  of  tlie  testimony  which  is  favorable 
to  the  defendants,  much  less  any  inferences  which  may  be  drawn 
from  it.  If  the  defendants  wish  to  set  up  any  facts  to  exonerate  or 
discharge  them,  they  must  look  to  the  jury  to  establish  them.  The 
court  can  not  examine,  compare  and  weigh  the  different  parts  of  the 
evidence.  It  would  be  performing  a  duty  which  the  law  has  not  im- 
posed upon  them,  and  which  they  uniformly  refuse  to  accept  from 
the  agreement  of  the  parties  themselves. 

Without  going  into  further  examination  of  tlie  evidence,  we  are 
fully  convinced  that  the  demurrer  was  not  properly  tendered,  that 
the  evidence  did  not  present  a  proper  case  for  a  demurrer,  that  the 
plaintiffs  ought  not  to  have  joined  in  it,  but  to  have  prayed  the  judg- 
ment of  the  court  whether  the  defendants  should  be  admitted  to  it. 

The  court  have  an  important  discretion  in  allowing  or  disallow- 
ing demurrers  to  evidence.®^  Although  a  demurrer  is  a  matter  of 
right  and  the  opposite  party  may  be  compelled  to  join  in  it,  when 
properly  presented,  yet  he  should  ahvays  be  careful  to  see  that  it  con- 
tains the  proper  admissions  before  he  joins  in  it.  On  the  whole,  we 
are  satisfied  that  the  demurrer  was  tendered  and  joined  without  fully 
examining  and  duly  considering  the  nature  and  effect  of  the  measure. 

And  we  think,  not  as  Lord  Chief  Justice  Rolle  said,  "that  both 
parties  have  misbehaved  themselves,"  but  in  the  language  of  the 
Supreme  Court  of  the  United  States,  "that  the  demurrer  has  been  so 
incautiously  framed  that  there  is  no  manner  of  certainty  in  the  state 
of  facts  upon  wliich  any  judgment  can  be  founded.  Under  such  a 
predicament  the  settled  practice  is  to  award  a  new  trial,  upon  the 
ground  that  the  issue  between  the  parties  has  not  been  tried."  This 
was  done  in  the  analogous  cases  of  Wright  v.  Pindar,  and  Gibson  v. 
Hunter,  by  the  House  of  Lords,  and  in  Fowle  v.  Common  Council  of 
Alexandria,^''  by  the  Supreme  Court  of  the  United  States. 

Venire  facias  de  novo  awarded. 


^'Shields  V.  Arnold,  i  Blackf.  (Ind.)  109  (1820)  ;  Maus  r.  Montgomery, 
II  Serg.  ^  R  CP^SLZZDJ^^^^A)  '•  Morrison  v.  McKinnon,  i2TTx^552  (ISiSBJ; 
Van  Stone  v.  Stillwell,  142  U.  S.  128,  35  L.  ed.  961,  12  Sup.  Ct.  181  (1891)  ; 
University  of  I'a.  v.  Snyder,  100  Va.  567,  42  S.  E.  2i7  (1902).  Compare 
Fowler  v.  Macomb,  2  Root  (Conn.)  388  (1796). 

*'ii  Wheaton  (U.  S.)  320,  6  L.  ed.  608  (1826).  Accord  :  Dormady  v.  Bank, 
2  Scam.  (111.)  236  (1840)  ;  Ingram  v.  Jacksonville  St.  R.  Co.,  43  Fla.  324,  30  So. 
800  (1901). 

"The  demurrant  attacks  the  evidence  of  his  adversary,  and  in  the  very 
nature  of  things,  this  attack  can  not  be  aided  by  his  own  evidence.  The  suffi- 
ciency of  the  adversary's  evidence  to  support  the  issue  upon  his  part  is  the 
only  question  presented  by  the  demurrer,  and  this  question  must  be  deter- 
mined without  reference  to  the  evidence  of  the  demurring  party;  indeed, 
such  a  partj'  does  not  and  can  not  have  any  evidence.  The  evidence  of  the 
adversary  is  alone  involved  in  the  issue  raised  by  the  demurrer."  Frits  v. 
Clark,  80  Ind.  591    (1881);   Goodman  v.  Ford,  23  Aliss.  592   (1852).    Every 


WASHBURN   V.    ALLEN  393 

SECTION  6.     NONSUIT. 

WASHBURN  V.  ALLEN. 

Supreme  Judicial  Court  of  Maine,  1885. 
77  Maine  344. 

Foster,  J. :  This  action  was  tried  before  the  presiding  justice, 
without  the  intervention  of  a  jury.  The  parties  upon  both  sides  had 
introduced  their  evidence,  and  at  this  stage  of  the  trial  the  plaintiff 
claimed  to  become  nonsuit,  to  which  the  defendant  objected;  there- 
upon the  court  ruled,  as  a  matter  of  law,  that  the  plaintiff  could  not 
become  nonsuit  against  the  defendants'  objection.^^ 

Before  proceeding  to  consider  the  authorities  that  bear  upon  this 
question,  it  may  be  remarked  that  nonsuits  may  be  classed  under  two 
divisions,  (i)  Involuntary;  as  when  ordered  by  the  court  against 
the  plaintiff's  objection.  (2)  Voluntary,  when  allowed  by  the  court 
on  the  plaintiff's  own  motion.  Into  the  one  or  the  other  of  the  two 
classes  the  decided  cases  fall.  The  case  under  consideration  comes 
within  the  last,  and  brings  us  to  consider  the  rule  of  practice  appli- 
cable in  such  cases. 


fact  is  taken  against  the  party  demurring  as  true,  and  no  testimony  can  be 
considered  which  impugns  its  truth.  Davisji^Steiner,  14  Pa.  St.  275^  5^  Am. 
Dec.  547  (1850);  Cocksedge  v.  FanshawTj^  DougTriiH  (1779)  ;  Uoe  v.' Rue, 
4  Blackf.  (Ind.)  263,  29  Am.  Dec.  368  (1836)  ;  McKowen  v.  MsPonald,,^^^, 
V^  gt  /l'|T,  82  Am.  Dec.  576  (1862)  ;  Plant  v.  Edwards,  HsTnd.  588  (1882)  ; 
Lake  Shore,  &c.,  R.  Co.  v.  Foster,  104  Ind.  293,  4  N.  E.  20,  54  Am.  Rep.  319 
(1885)  ;  Hopkins  v.  Railroad,  96  Tenn.  409,  34  S.  W.  1029,  32  L.  R.  A.  354 
(1895)  ;  Des  Moines  Life  Assn.  v.  Crim,  134  Fed.  348,  67  C.  C.  A.  330  (1904)  ; 
Mugge  v.  Jackson,  50  Fla.  235,  39  So.  157  (1905)  ;  Mcily  v.  St.  Louis  &  F.  S.  R. 
Co.,  215  Mo.  567,  114  S.  W.  1013  (1908)  ;  Carter  v.  Prairie  Oil  &  Gas  Co.,  80 
Kans.  792,  104  Pac.  563  (1909).  In  Virginia  and  West  Virginia  an  anomalous 
practice  exists  by  which  the  evidence  of  both  parties  is  put  in  the  demurrer,  the 
demurrant  admitting  all  that  may  reasonably  be  inferred  from  the  evidence  of 
the  adverse  party  and  waiving  so  much  of  his  evidence  merely  as  is  contra- 
dicted or  impeached  thereby.  Trout  v.  Va.  &  Tenn.  R.  Co.,  23  Gratt.  ( Va.)  619 
(1873)  ;  Chesapeake,  &c.,  R.  Co.  v.  Sparrozvs,  98  Va.  630,  37  S.  E.  302  (1900)  ; 
Bowers  v.  Bristol  Gas.  &c.  Co.,  100  Va.  533,  42  S.  E.  296  (1902)  ;  Bowman 
v.  Dewing,  50  W.  Va.  445,  40  S.  E.  576  (1901). 

A  demurrer  to  evidence  must  be  in  writing.  Landt  v.  McCiillough,  218 
111.  607,  75  N.  E.  1069  (1905)  ;  Rockwell  v.  Congress  Hotel  Co.,  22,7  111  98,  86 
N.  E.  740  (1908)  ;  Bridgeport  Wooden-ware  Mfg.  Co.  v.  Railroads,  103  Tenn. 
490,  53  S.  W.  739  (1890)  ;  Skinner  Mfg.  Co.  v.  Wright,  51  Fla.  324,  41  So.  28 
(1906)  ;  Newport,  &c.,  Co.  v.  Nicolopoolos,  109  Va.  165,  63  S.  E.  443  (1909). 

Upon  demurrer  to  evidence,  the  damages  may  be  assessed  by  the  prin- 
cipal jury  conditionally  before  they  are  discharged;  or  they  may  be  assessed 
by  another  jury  upon  a  writ  of  inquiry  after  the  demurrer  is  determined. 
Darrose  v.  Newholt,  Cro.  Car.  143  (1629)  ;  Feay  v.  Decamp,  15  Serg.  &  R. 
(Ea^)  227  (1826);  Young  v.  Foster,  7  Port.^Ala.  420  (1838)  ;  "Mobile  &  O. 
R.  Co.  V.  Mc Arthur,  43  Miss.  180  (1870)  ;  Holmes  v.  Phoenix  Miit.  Life  Ins. 
Co.,  49  Ind.  356  (1874)  ;  Hanover  Fire  Ins.  Co.  v.  Lewis,  23  Fla.  193,  i  So. 
863  (1887)  ;  Galveston,  &c.,  R.  Co.  v.  Templeton,  87  Tex.  42,  26  S.  W.  1066 
(1894). 

^*The  argument  of  counsel  and  part  of  the  opinion  of  the  court  are 
omitted. 


394  TKIAL 

The  English  practice  differs  somewhat  from  that  of  our  own 
courts.  At  c6mmon  law,  as  early  practiced  in  the  l^i.c^hsh  courts, 
upon  every  continuance  or  day  given  over  before  judg-ment,  the 
plaintiff  was  demandable,  and  upon  his  nonappearance  might  have 
been  nonsuit.  Bacon's  Abr.  Nonsuit,  D. ;  Co.  Litt.  139b.  And  no 
verdict  could  be  returned  and  given,  unless  in  his  presence,  or  that 
of  his  counsel,  but  the  plaintiff  was  said  to  be  nonsuit.  Therefore  it 
was  usual  for  a  plaintiff,  when  he  or  his  counsel  perceived  tliat  he 
had  not  given  evidence  sufficient  to  maintain  his  issue,  to  withdraw 
himself  and  be  voluntarily  nonsuited.  3  Black.  Comm.  *376;  Murphey 
V.  DonJan,  5  B.  &  C.  178,  11  Eng.  Com.  Law  195.  And  whenever 
the  plaintiff  ought  to  appear  in  court,  he  was  at  liberty  to  witlidraw. 
Co.  Litt.  138,  b,  139,  a;  Robinson  v.  Lawrence,  7  Exch.  123.  The| 
plaintiff  had  a  right  to  be  nonsuited  at  any  state  of  the  proceedings! 
he  might  prefer,  and  thereby  reserve  to  himself  the  power  of  bring- 
ing a  fresh  action  for  the  same  subject-matter;  and  the  right  con-/ 
tinued  to  the  last  moment  of  the  trial,  even  till  after  verdict  rendered, 
or,  where  the  case  was  tried  by  the  court  without  the  intervention 
of  a  jury,  until  the  judge  had  pronounced  his  judgment.  Outlnvaite 
V.  Hudson,  7  Exch.  380.  Consequently,  if  he  was  not  satisfied  with 
the  damages  given  by  the  jury,  he  might  become  nonsuit.  Bacon's 
Abr.  Nonsuit,  D. ;  Keat  v.  Barker,  5  Modern  208. 

But  by  statute,  2  Henry  IV,  ch.  7  (A.  D.  1400),  it  w^as  ordained 
and  established,  that  if  the  verdict  passed  against  the  plaintiff,  he 
should  not  be  nonsuited,  which  before  that  time  was  otherwise  at 
common  law\ 

Notwithstanding  this  statute,  which  was  an  amendment  of  the 
common  law,  it  was  held  that  the  plaintiff"  might  be  nonsuited  after 
the  finding  of  a  special  verdict,  and  the  reason  of  this  would  seem 
to  be  that  a  special  verdict  is  in  the  nature  of  a  statement  of  facts ; 
and  also  after  a  demurrer  and  argument  thereon,  and  a  rule  for 
judgment  for  defendant,  though  it  could  not  be  done  at  the  same 
term.  Bacon's  Abr.  Nonsuit,  D. ;  Alderly  v.  Alderly,  Cro.  Jac.  35. 
And  this  statute  was  afterwards  construed  as  applying  only  to  cases 
where  the  jury  had  passed  upon  the  whole  matter.  Earl  of  Oxford 
V.  Waterhonse,  Cro.  Jac.  575 ;  Com.  Dig.  Pleader,  w\  5.  Except  in 
the  cases  above  stated,  the  plaintiff  could  always  become  nonsuit 
upon  any  continuance. '^^ 

In  1740,  the  English  practice  was  further  regulated  by  statute 
of  14  Geo.  II,  ch.  17,  which  provided:  "That  where  issue  is,  or  shall 
be,  joined  in  any  action  or  suit  at  law  in  any  of  his  majesty's  courts 
of' record,  and  the  plaintiff'  or  plaintiffs,  in  any  such  action  or  suit, 
hath  or  have  neglected,  or  shall  neglect,  to  bring  issue  on  to  be  tried 
according  to  the  course  and  practice  of  the  said  courts  respectively, 
it  shall  and  may  be  lawful  for  the  judge  or  judges  of  the  said  courts 
respectively,  at  any  time  after  such  neglect,  upon  motion  made  m 
open  court  (due  notice  thereof  having  first  been  given),  to  give  the 

'"Under  the  modem  English  practice  a  plaintiff  can  not  elect  to  be  non- 
suited •  if  he  offers  no  evidence  at  the  trial,  the  defendant  is  entitled  to  a 
verdict.  Fox  v.  Star  Neivspaper  Co.,  L.  R.  ( 1898)  i  Q.  B.  636 ;  affirmed  L.  K. 
(1900)  App.  Cas.  19,  and  see  rules  of  supreme  court,  order  XXVI,  rules  1-4. 


WASHBURN   V.    ALLEN  395 

like  judgment  for  the  defendant  or  defendants  in  every  such  action 
or  suit,  as  in  the  case  of  nonsuit."  ^^ 

It  would  seem  that  the  practice  in  England,  under  the  common 
law,  as  v/ell  as  since  tlie  more  modern  statutes,  has  been  perhaps  **■ 
more  liberal  in  favor  of  allowing  nonsuits  to  plaintiffs  as  matter  of 
right,  than  is  prescribed  in  this  country.  According  to  the  practice 
there,  as  appears  by  the  decisions  of  their  courts,  a  plaintiff  could, 
not  be  nonsuited  on  the  trial  against  his  assent,  but  might  insist,  as 
matter  of  right,  on  the  cause  going  to  the  jury,  and  thus  taking  his 
chance  of  a  verdict.  Dewar  v.  Purday,  4  Ad.  &  El.  633.®^ 

Whatever  may  be  practice  elsewhere,  the  courts  of  Massa- 
chusetts and  New  Hampshire  have  never  adopted  the  early  English 
practice,  but,  on  the  contrary,  have  declared  that,  after  a  cause  has 
been  opened  to  the  jury,  the  plaintiff  can  not  become  nonsuit,  as  a 
matter  of  legal  right,  but  the  court  might  allow  it,  at  that  stage  of 
the  case,  in  its  discretion.  In  Haskell  v.  Whitney,  12  Mass.  47, 
Jackson,  J.,  in  pronouncing  the  opinion  of  the  court  says :  "The 
plaintiff,  or  demandant,  may,  in  various  modes,  become  nonsuit,  or 
discontinue  his  suit,  at  his  pleasure.  At  the  beginning  of  every  term, 
at  which  he  is  demandable,  he  may  neglect  or  refuse  to  appear.  If 
the  pleadings  are  not  closed,  he  may  refuse  to  reply,  or  to  join  an 
issue  tendered;  or,  after  issue  joined,  he  may  decline  to  open  his 
cause  to  the  jury.  The  court  also  may,  upon  sufficient  cause  shown, 
allow  him  to  discontinue,  even  when  it  can  not  be  claimed  as  a  right ; 
as  after  the  cause  is  opened,  and  the  evidence  submitted  to  the 
jury."^^ 

We  have  carefully  examined  not  only  the  authorities  cited,  but 
many  others,  in  support  of  the  extension  of  the  rule  to  authorize  a 
nonsuit,  as  matter  of  right,  up  to  the  time  of  verdict,  but  we  are  not 
satisfied  tliat,  as  against  the  decisions  of  our  own  courts,  the  English 
practice,  or  the  old  common  law  doctrine  should  prevail.  In  the 
cases  to  which  we  have  referred,  our  courts  have  fully  recognized, 
though  they  have  not  seen  fit  to  follow,  the  ancient  common  law  as 
laid  down  many  years  ago  in  England.  Many  of  the  customs  of  our 
courts  are  different  from  tliose  existing  at  that  time,  when  no  ver- 
dict could  be  returned  for  or  against  a  plaintiff  unless  he  or  his 
counsel  v/as  present  in  court,  and  to  avoid  which,  or,  if  in  his  favor, 
and  tlie  damages  were  not  satisfactory  to  him,  he  might  withdraw 
himself  and  become  nonsuit.   Cessanfe  ratione  legis,  cessat  ipsa  lex. 


^Meivhurn  v.  Langley,  3  T.  R.  I  (1789)  ;  Porselius  v.  Haddocks,  I  H. 
Bl.  lOT   (1789)  ;  Burton  v.  Harrison,  I  East  346  (1801)  ;  Barnes'  notes  313. 

**See  note  99  to  Ringold  v.  Haven,  post  p.  403. 

*-The  court  also  cites  Locke  v.  Wood,  16  Mass.  317  (1819)  ;  Means  v. 
Welles,  12  Mete.  (Mass.)  356  (1847)  ;  Lowell  v.  Merrimack  Mfg.  Co.,  11  Gray 
(Mass.)  382  (1858);  Shaiv  v.  Boland,  15  Gray  (Mass.)  571  (i860);  Truro 
V.  Atkins,  122  Mass.  418  (1877)  ;  Btirbank  v.  Woodward,  124  Mass.  357  (1878)  ; 
Judge  of  Probate  v.  Abbott,  13  N.  H.  21  (1843)  ;  Wright  v.  Bartlctt,  45  N.  H. 
289  (1864)  ;  Pollard  v.  Moore,  51  N.  H.  188  (1871)  ;  Fulford  v.  Converse,  54 
N.  H.  543  (1874)  ;  Parker  v.  Burns,  57  N.  H.  602  (1876)  ;  Farr  v.  Cate,  58 
N.  H.  367  (1878)  ;  Proprietors  v.  Davis,  2  Maine  356  (1822)  ;  Theobald  v. 
Colby,  35  Aiaine  179  (1853)  ;  Philips  v.  Echard,  Cro.  Jac.  35  (1605)  ;  Larrabee 
V.  Rideout,  45  Maine  193  (1858). 


396  TRIAL 

Hence,  not  only  upon  principle,  but  authority,  we  may  safely 
found  this  rule:  That  the  i)laintilT,  before  ojiening  his  case  to  jury, 
or  to  the  court,  when  tried  before  the  court  without  the  intervention 
of  the  jury,  may  become  nonsuit  as  a  matter  of  right ;  after  the  case 
is  opened,  and  before  verdict,  leave  to  become  nonsuit  is  within  tlie 
discretion  of  the  court ;  after  verdict  there  can  be  no  nonsuit."^  *  *  * 

In  this  case  both  parties  had  introduced  their  evidence.  The 
plaintilT  thereupon  stated  that  he  voluntarily  became  nonsuit.  The 
defendants  objected.  The  court  then  ruled,  as  matter  of  law,  that 
the  plaintilT  could  not  become  nonsuit  against  the  defendant's  objec- 
tion, and  ordered  judgment  for  defendants. 

This,  we  think,  was  error;  it  was,  in  effect,  expressly  denving 
that  the  trial  court  had  the  power,  in  the  exercise  of  its  discretion, 
to  grant  the  nonsuit  asked  for  by  the  plaintiff,  and  which,  as  we 
have  stated,  could  have  been  done,  in  the  discretion  of  the  court,  at 
tliat  stage  of  the  case. 

Exceptions  sustained. 


yo      EASTON  BANK  v.  CORYELL. 
Supreme  Courtof  Pennsylvania,  1844. 
9  Waits  and  S.  (Pa.)  153- 


r . 


Error  to  the  common  pleas  of  Bucks  county.  This  was  an  action 
of  assumpsit  on  a  promissory  note  brought  by  the  Easton  Bank 
against  Coryell  and  Murray.  After  the  charge  of  tlie  court,  the  jury 
retired  to  deliberate  upon  their  verdict,  and  after  the  lapse  of  some 
time  came  into  court.  After  they  had  entered  the  jury  box  and  nine 
of  them  had  been  called,  and  before  the  clerk  had  finished  calling 
them,  the  plaintiff  asked  to  suffer  a  nonsuit.  The  court  decided  that 
it  was  too  late,  and  refused  to  allow  it,  and  plaintiff  excepted.  The 
refusal  was  one  of  the  assignments  of  error. 


•^Accord:  Bcnolst  v.  Miirrin,  48  Mo.  48  (iS;!*)  ;  United  States  v.  Huma- 
son,  8  Fed.  71  (1881)  ;  Bettis  v.  Schricbcr,  31  Minn.  329,  17  N.  W.  863  (1883)  ; 
Johnson  v.  Bailey,  59  Fed.  670  (1894)  ;  Derick  v.  Taylor,  171  AI:iss.  444  (1898)  ; 
Carpenter  v.  N.'Y.,  N.  H.  &  II.  R.  Co.,  184  Mass.  98,  68  N.  E.  28  (1903)- 
In  other  jurisdictions  the  plaintiff  may  suffer  a  voluntary  nonsuit  at  any 
time  before  the  case  is  submitted  to  the  jur>'.  Amos  v.  Sinnott,  5  111.  440 
(1843)  ;  Adams  v.  Shepard,  24  HI-  464  (i860)  ;  McClelland  v.  Louisville,  N.  A. 
&c  R.  Co.,  94  Ind.  276  (1883)  ;  National  Broadvjay  Bank  v.  Lesley,  31  Fla.  56 
(1893)  ;  Morrisey  v.  Chicago  &  N.  W.  R.  Co.,  80  Iowa  314, 45  N.  W.  545  (1890)  ; 
Toulouse  V.  Pare,  103  Cal.  251,  37  I^ac.  146  (1894)  ;  Bauman  v.  Whiteley,  57  N. 
J  L.  487,  31  Atl.  9S2  (1895)  ;  Osborne  v.  Davies,  60  Kans.  695,  57  Pac.  941 
(1899)  ;  Greenfield  v.  Carey,  70  N.  J.  L.  613,  57  Atl.  269  (1904) ;  McPherson  v. 
Seattle  Elec.  Co.,  53  Wash.  358,  loi  Pac.  1084  (1909)  ;  Snyder  v.  Collier,  85 
Nebr  552  123  N.  W.  1023  (1909)  ;  Knight  v.  ///.  Cent.  R.  Co.,  180  Fed.  368 
'('1910)  ;  Strottman  v.  R.  Co.,  22S  J^fo.  154,  128  S.  W.  187  (1910)  ;  Van  Wage- 
men  V.  Chladek,  27  .S.  Dak.  436,  131  N.  W.  507  (1911).  The  New  York  Code  of 
Civil  Procedure  provides,  §  1 182 :  "It  is  not  necessary,  in  an  action  in  a  court 
of  record  to  call  the  plaintiff,  when  the  jurors  are  about  to  deliver  their  ver- 
dict; and  the  plaintiff,  in  such  an  action,  can  not  submit  to  a  nonsuit,  after  the 
cause  has  been  committed  to  the  jur>-,  to  consider  the  verdict." 


MERCHANTS    BANK  OF  CANADA  V.    SCHULENBERG  397 

Per  Curiam.  There  is  no  apparent  error  in  the  charge ;  but  the 
plaintiff  was  erroneously  compelled  to  submit  to  a  verdict.  It  was 
ruled  in  McLiighan  v.  Bovard/'^  for  reasons  not  necessary  to  be 
repeated,  that  a  plaintiff  is  entitled  to  become  nonsuit  at  any  time 
before  the  jury  have  declared  their  readiness  to  give  their  verdict 
in.  answer  to  the  prothonotary's  formal  inquiry;  but  in  this  instance 
they  were  not  ready,  for  they  had  not  all  been  called  and  counted, 
in  compliance  with  the  ceremony  that  precedes  the  question  of  readi- 
ness. It  is  better  to  hold  fast  to  the  established  criterion,  whatever 
it  may  be,  than  introduce  imcertainty  by  departing  from  it.^^ 

Judgment  reversed. 


V^  MERCHANTS'  BANK  OF  CANADA  v.  ALBERT  R. 
/  SCHULENBERG. 

Supreme  Court  of  Michigan,  1884. 

54  Mich.  49. 

Sherwood,  J. :  This  case  has  once  before  been  in  this  court  (48 
Mich.  102),  but  the  questions  then  raised  have  no  bearing  upon  the 
points  made  in  the  present  record.  The  action  is  assumpsit  upon  a 
Canadian  judgment  rendered  in  the  Court  of  Queen's  Bench  in  the 
province  of  Ontario,  The  plea  vvas  the  general  issue,  with  notice  of 
set-off  and  other  special  matters  in  bar  of  the  suit.  Under  the  set- 
off defendant  claimed  to  be  entitled  to  a  judgment.  There  v;as  no 
contest  as  to  the  amount  of  the  plaintiff's  claim  upon  the  trial.  The 
record  of  the  Ontario  judgment  was  introduced  in  evidence  without 
objection,  and  the  plaintiff's  counsel  rested  his  case. 

The  defendant  then  examined  two  witnesses  upon  his  part,  and, 
when  nearly  ready  to  close  tlie  defense,  counsel  for  plaintiff  an- 
nounced to  the  court  that  he  was  taken  by  surprise  by  the  defendant's 
testimony ;  was  not  then  prepared  to  meet  it;  and  asked  leave  of  the 
court  to  submit  to  a  nonsuit,  with  the  right  to  move  to  set  the  same 
aside.  This  application  of  plaintiff's  counsel  was  objected  to  by  the 


^4  Watts  (Pa.)  I'^oS  (ig.^n).   See  Pa.  Act  of  April  16,  1903,  P-  L-  216,  §  i. 

"^Accord :  Price  v.  Jr'arnerri  balk.  17b  (1696)  ;  Kcat  v.  Barker,  5  Mod. 
208  (1696)  ;  Usher  v.  Sibley,  2  Brev.  (S.  Car.)  32  (1806)  ;  Chedoteauv.  Domin- 
qiiez,  7'Mart.  (O.  S.)  (La.)  490  (1820)  ;  U'ooster  v.  Burr,  2  Wend.  (N.  Y.) 
295  (1829)  ;  McCredv  v.  Fev.  7  Watts  (FaJ_4Q6  (1838)  ;  Otdhzvaite  v.  Hud- 
son, 7  Exch.  380  (1852)  ;  Stevens  v.  Esling,  2  F.  &  F.  136  (i860)  ;  People's 
Bank  V.  Stewart,  93  N.  Car.  402  (1885)  ;  Helzvig  v.  Plosmer,  73  Mich.  258,  41 
N.  W.  268  (1889)  ;  Piedmont  Mfg.  Co.,  v.  Buxton,  105  N.  Car.  74,  11  S.  E. 
264  (1890)  ;  Hoodless  v.  Winter,  80  Tex.  638,  16  S.  W.  427  (1891)  ;  Jackson 
V.  Meriti,  21  D.  C.  276  (1892)  ;  Felts  v.  r)el.  L._&  W.  R.  Co.,  170  Pa.  St.  432. 
33  Atl.  97  (iSot)  :  Crumley  v.  Luta.  180  Pa.  476.  .-^6  Atl.  .929  (1897).  See 
Sharpe  v.  Soivers,  152  N.  Car.  379  (1910).  The  ancient  practice  was  for  the 
officer  of  the  court  to  ask  the  jur\-,  after  they  had  considered  of  their  verdict, 
if  they  were  agreed  in  their  verdict.  If  they  answered  in  the  affirmative, 
the  officer  then  called  the  plaintiff  by  name  to  hear  the  verdict;  and  if  he 
appeared  the  verdict  was  pronoimced.  If  he  did  not  appear  to  prosecute  his 
suit  he  was  nonsuited."  Per  Abbott,  C.  J.,  in  Murphy  v.  Donlon,  5  B.  &  C. 
178   (.1826). 


39S  TRIAL 

defendant,  on  the  j^'ound  that  since  the  suit  was  commenced  the 
Statute  of  Limitations  had  commenced  to  run  against  the  claim 
stated  in  his  notice  of  set-ofT.  Tlie  objection  was  overruled  bv  the 
court,  and  counsel  for  the  defendant  excepted.  Counsel  for  defend- 
ant tliereupon  admitted  the  plaintiff's  claim  of  $531,000  stated  in  his 
declaration,  and  claimed  his  readiness  to  make  proof  of  his  offset 
to  the  amount  of  $646,348,  and  insisted  upon  his  right  to  proceed 
with  the  trial,  establish  his  claim,  and  have  a  verdict  for  the  sur- 
plus in  his  favor,  and  requested  the  court  to  permit  him  to  do  so. 
Counsel  for  plaintiff  objected,  the  court  sustained  the  objection,  and 
defendant's  counsel  again  excepted.  These  two  exceptions  are  now 
before  us  for  consideration,  and  only  these. 

The  question  is  simply  this:  Whether,  under  our  statute,  when 
the  defendant  has  given  notice  of  set-off  and  claims  a  balance  in  his 
favor,  tlie  plaintiff  can  discontinue  his  suit,  or  be  permitted  to  dis- 
continue it,  witliout  tlie  consent  of  and  against  the  wishes  of  the 
defendant. 

Set-off  is  a  mode  of  defense.  By  it  the  existence  of  the  demand 
sued  upon  is,  in  a  certain  sense,  admitted;  but  at  the  same  time,  the 
defendant  sets  up  a  demand  against  the  plaintiff  to  counterbalance 
it,  in  whole  or  in  part,  and  under  our  statute  the  defendant  may  have 
judgment  for  any  balance  found  in  his  favor.  Originally  the  defend- 
ant's claim  could  only  be  allowed  to  the  extent  of  the  plaintiff's 
demand  proved  on  tlie  trial.  Toml.  Law  Diet. ;  Babbington  on  Set- 
oft"  I.  At  common  law  the  defendant  was  in  no  instance  allowed  to 
recover  judgment  for  damages  for  a  positive  claim  against  the  plain- 
tiff*. To  obviate  the  rigor  of  this  rule  of  law,  and  to  avoid  a  multi- 
plicity of  suits  where  mutual  cross-demands  existed,  unconnected 
with  each  other,  and  to  have  the  whole  adjudicated  upon  in  one 
action,  was  the  great  object  of  the  statute  of  set-off.  Ward  v.  Fel- 
lers, 3  Mich,  281. 

The  right  of  set-off  at  law  is  given  by  statute,  and  is,  of  course, 
limited  by  it.  The  common  law  never  recognized  it.  Bacon  Abr. 
tit.  "Set-off;"  Woods  v.  Ayres,  39  IMich.  345. 

How.  Stat.,  sec.  6886  of  tlie  chapter  authorizing  set-off  in  jus- 
tice's court,  reads  as  follows:  "If  the  amount  of  set-off  duly  estab- 
lished, be  equal  to  the  plaintiff's  debt,  judgment  shall  be  entered  for 
the  defendant,  with  costs;  if  it  be  less  than  the  plaintift''s  debt,_tlie 
plaintiff'  shall  have  judgment  for  the  residue  only,  with  costs;  if  it 
be  more  than  the  plaintiff's  debt,  and  the  balance  found  due  to  the 
defendant  from  the  plaintiff  in  the  action  be  three  hundred  dollars 
or  under,  judgment  shall  be  rendered  for  the  defendant  for  the 
amount  thereof,  with  costs ;  and  execution  shall  be  awarded  as  upon 
a  judgment  in  a  suit  brought  by  him;  but  no  such  judgment  shall  be 
rendered  against  the  plaintiff  when  the  contract  which  is  the  sub- 
ject of  suit,  shall  have  been  assigned  before  the  commencement  of 
such  suit,  nor  for  any  balance  due  from  any  other  person  than  the 
plaintiff  in  the  action."  The  same  provisions  are  made  applicable 
to  proceedings  in  courts  of  record,  in  cases  of  set-off.  See  How. 
Stat.,  sees.  7367,  7368. 


MERCHANTS    BANK  OF  CANADA  V.   SCHULENBERG  399 

The  object  of  the  statute  is  beneficial  and  equitable,  and  in  its 
operation  it  proceeds  upon  equitable  principles.  Doivner  v.  Eggles- 
ton,  15  Wend.  (N.  Y.)  55,  56. 

The  doctrine  of  set-off  was  borrowed  from  the  doctrines  of  com- 
pensation of  the  civil  law,  and  constituted  an  important  part  thereof. 
2  Poth.  Obi.  No.  13,  p.  99;  Duncan  v.  Lyon,  3  Johns.  (N.  Y.)  ch. 
359;  Reab  v.  McAUster,  8  Wend.  (N.  Y.)  115;  Whitaker  v.  Rush, 
I  Ambler  407.  This  doctrine  was  also  followed  to  some  extent  in 
tlie  English  courts  before  the  statutes  of  set-off  were  enacted.  See 
Chapman  v.  Derby,  2  Vern.  117;  Lindsay  v.  Jackson,  2  Paige 
(N.  Y.)  581.  And  while  it  is  true  that  the  right  of  set-off  is  statu- 
tory and  we  can  not  enlarge  the  right  beyond  what  the  statute  rea- 
sonably allows,  yet  the  courts  may,  and  it  is  their  duty  in  determin- 
ing, regulating  and  applying  the  practice  in  securing  and  enforcing 
that  right,  to  be  liberal  in  their  action,  and  to  give  the  law  such  con- 
struction as  wall  secure  all  the  benefits  and  advantages  intended. 

The  right  of  the  plaintiff  at  common  law  to  voluntarily  submit  to 
a  nonsuit,  or  to  discontinue  his  suit  at  any  time  before  the  jury  have 
rendered  their  verdict,  is  well  supported  by  the  authorities,  and  has 
always  been  the  practice  in  this  state  when  no  set-off  has  been 
pleaded.  3  Chit.  Pr.  910;  i  Burril's  Pr.  241;  Wooster  v.  Burr,  2 
Wend.  (N.  Y.)  295;  Circuit  Court  Rule  26;  i  Green's  Pr.  447,  279; 
Slocomh  V.  Thatcher,  20  Mich.  52.  I  think  that  when  tlie  set-off  is 
purely  defensive,  and  no  affirmative  action  is  required  on  the  part 
of  the  court  or  jury,  the  right  of  the  plaintiff  to  become  nonsuited 
at  his  pleasure,  before  verdict  or  judgment,  should  be  in  the  dis- 
cretion of  the  court ;  which  discretion  should  not  be  exercised  against 
the  right,  except  in  cases  where  the  rights  of  the  defendant  might  be 
prejudiced. 

Under  the  statute,  however,  authorizing  a  judgment  to  be  ren- 
dered in  case  of  set-off  for  any  balance  found  due  the  defendant 
upon  the  trial,  the  rule  is  and  should  be  different.  In  such  a  case, 
really  two  suits  are  pending  before  the  court  to  be  tried  at  the  same 
time.  In  the  one,  the  plaintiff  has  the  affirmative  of  the  issue ;  and  in 
the  other,  the  defendant  has  the  affirmative.  It  is  only  after  the 
trial,  when  the  extent  of  each  party's  claim  has  been  ascertained, 
that  the  liquidation  of  the  smaller  claim  occurs  by  way  of  set-off, 
or  can  be  made  by  the  court  or  jury. 

The  statute  requires  the  defendant  to  bring  forward  his  claim 
for  adjudication  at  the  time  the  plaintiff  brings  his  suit,  and  thereby 
determines  the  time  when  the  defendant  shall  have  his  claim  adjudi- 
cated, at  the  peril  of  doing  so  at  his  own  expense.  In  all  other  re- 
spects, the  case  stands  as  though  two  separate  suits  were  brought  to 
determine  the  rights  of  the  parties ;  and  I  fail  to  see  why  both  cases 
should  not  be  governed  by  the  same  rules,  and  receive  the  same 
treatment  at  the  hands  of  the  court.  Simple  justice  requires  this,  and 
I  can  see  no  reason  why  the  equitable  rules  upon  which  the  whole 
doctrine  of  set-off  is  based  should  not  be  carried  out  in  the  practice 
In  these  cases.  Adopting  this  rule,  the  plaintiff  would  have  no  more 
right  to  discontinue  the  defendant's  suit  than  the  latter  would  that 
of  the  former ;  and  such,  I  think,  should  be  the  law. 


400  TRIAL 

These  views  find  support  in  the  followinj^  authorities,  which  I 
think  shouKl  govern  this  case:  Tlioiiias  v.  /////,  3  Tex.  270;  Brad- 
ford V.  Honiilton,  7  Tex.  55.  5S,  59;  Francis  v.  Edivards,  yy  N.  Car. 
271,  275;  Rilcv  V.  Carter,  3  llunii)li.  (Tcnn.)  230;  Rcss  v.  Van  Pat- 
ini.  13  ilow.  Pr.  (N.  Y.)  258;  Cockle  v.  Underwood,  3  Duer  (N.  Y.) 
076;  J 'an  Allen  v.  Schennerhorn,  14  How.  Pr.  (N.  Y.)  287. 

I  think  the  exceptions  of  defendant's  counsel  to  the  action  of  the 
court,  in  not  allowing  the  defendant  to  make  full  proof  of  his  claim 
and  take  judgment  tlierefor,  were  well  taken. 

The  judgment  must  be  reversed  with  costs  and  a  new  trial 
granted. 

Campbell,  J.  concurred. 

CooLEY,  C.  J. :  In  this  case  the  defendant  relied  upon  a  set-off, 
which,  he  claimed,  was  larger  than  the  plaintiff's  demand,  and  he 
brings  the  case  to  this  court,  assigning  for  error  the  order  of  the 
circuit  court  permitting  tlie  plaintiff,  notwithstanding  his  objection, 
to  submit  to  a  nonsuit. 

The  general  right  of  the  plaintiff  to  discontinue  his  suit  or  to 
submit  to  a  nonsuit,  at  any  time  before  A-erdict,  is  undoubted,  and  in 
the  absence  of  any  statute  taking  away  the  right,  it  exists  in  the  cases 
where  set-off  is  relied  upon,  to  the  same  extent  as  in  otlier  cases. 
This  is  fully  recognized  in  Cummings  v.  Pruden,  ii  Mass.  206,  and 
Branham  v.  Bronni,  i  Bailey  (S.  Car.)  262.  In  several  states  stat- 
utes have  been  passed  taking  away  the  right,  but  w^e  have  no  such 
statute.  The  fact  that  the  statute  of  set-offs  permits  judgment  to  be 
taken  by  the  defendant  for  the  balance  found  due  him,  does  not  pre- 
clude a  discontinuance.   Cummings  v.  Pruden,  supra. 

But  it  is  said  there  are  decisions  to  the  contrary  of  these,  and 
several  are  referred  to.  The  Texas  cases  are  not  in  point,  as  they 
are  decided  under  the  civil  law,  which  does  not  prevail  in  this  state. 
Egery  v.  Poiver,  5  Tex.  501;  Walcott  v.  Hendrick,6  Tex.  406; 
Bradford  V.  Hamilton,  7  Tex.  55.^^  The  case  of  Francis  v.  Edwards, 
yj  N.  Car.  271,  was  decided  upon  a  construction  of  the  code  of  tliat 
state,  and  therefore  has  no  bearing.  In  Riley  v.  Carter,  3  Humph. 
(Tenn.)  230,  the  defendant  had  obtained  judgment  for  his  set-off 
in  justice's  court,  and  the  plaintiff  removed  tlie  case  to  tl;e  circuit 
court  by  certiorari,  and  then,  in  that  court,  was  given  leave  to  dis- 
miss his  suit.  This  was  palpable  error,  and  the  court  so  held;  but 
we  discover  no  analogy  between  that  case  and  this.  The  defendant 
had  his  judgment,  and  unless  error  was  shown,  had  a  right  to  retain 
it.  The  three  New  York  cases  of  Cockle  v.  Underwood,  3  Duer 
(N.  Y.)  676;  Rees  v.  Van  Patten,  13  How.  Pr.  (N.  Y.)  258;  and 
]"an  Alen  v.  Schermerhorn,  14  How.  Pr.  (N.  Y.)  287,  are  not  in 
point  because  decided  under  the  state  code;  but  so  far  as  they  can 
be  considered  as  having  a  bearing,  they  are  against  the  defendant 
Instead  of  for  him,  for  they  all  recognize  the  power  of  the  court 


"Accord:  Jackson  v.  Furst,  (Tex.  Civ.  App.)  154  S.  W.  243  (1913)- 
See  also,  in  Louisiana:  Jones  v.  Jenkins,  9  Rob.  (La.)  180  (1844);  Davis 
V.  Young,  35  La.  Ann.  739  (1883)  ;  State  v.  Rost,  48  La.  Ann.  455,  19  So.  256 
(1896). 


nS  \'^     f(^cp^^CC5_.  coc(7 


RINGGOLD   V.    HAVEN  4^1 

in  its  discretion  to  permit  the  plaintiff  to  discontinue;  which  is  all 
that  is  necessary  to  sustain  this  judgment. 

The  judgment  should  be  affirmed.^'' 

Champlin,  J.,  concurred. 

Affirmed. 


/^ 


RINGGOLD  V.  HAVEN  &  LIVINGSTON. 

Supreme  Court  of  California,  1850. 

I  Cal.  108. 


Action  against  the  defendants  as  common  carriers  for  not  safely 
transporting  goods  of  the  plaintiff  from  New  York  to  San  Francisco. 
Plea  the  general  issue.  On  the  trial  defendants  moved  for  a  non- 
suit on  the  ground  that  the  plaintiff's  evidence  disclosed  that  the  con- 
tract for  transportation  was  with  Livingston,  Wells  &  Co.,  and  not 
with  defendants.  The  court  refused  the  nonsuit  on  the  ground  that 
defendants  were  liable  as  having  made  the  contract  without  disclos- 
ing their  principal.  On  appeal  two  questions  were  considered: 
1st.   Had  the  court  the  legal  right  to  order  the  plaintiff  to  be  non- 


*'There  is  a  conflict  of  opinion  upon  the  point  discussed  in  the  principal 
case,  due,  in  part,  to  the  language  of  the  statutes  and  their  interpretation. 
In  accord  with  the  view  of  Cooley,  C.  J.,  see  Usher  v.  Sibley,  2  Brev.  (S. 
Car.)  32  (1806);  Cuinmings  v.  Pruden,  11  Mass.  206  (1814)  ;  Branham  v. 
Brown,  I  Bailey  L.  (S.  Car.)  262  (1829)  •  McCrcdv  v.  Fcv,  7  Watts  (Pa.)  496 
(1838)  ;  Sewall  v.  Tarhox,  30  :Maine  27  O849)  ;  Buffington  v.  Quackenhross, 
5  Fla.  196  (1853) ;  Clarke  v.  Wall,  5  Fla.  476  (1854)  ;  Fowler  v.  Lawson,  15 
Ark.  148  (1854);  Fink  v.  Bruihl,  47  Mo.  173  {1^,70)  ;  Gilmime^JLJBMd^^d 
Pa;St,_4^2_(i8Z4)  ;  Anderson  v.  Gregory,  43  Conn.  61  (1875)  ;  Hnffstutler 
yrLoidsvitte  Packing  Co.,  154  Ala.  291,  45  So.  418  (1908).  The  trend  of 
authority  is  contra.  Means  v.  Welles,  53  Mass.  356  (1847)  ;  Hancock  Ditch 
Co.  v.  Bradford,  13  Cal.  637  (1859)  ;  McLeod  v.  Bcrtschy,  33  Wis.  176,  14 
Am.  Rep.  755  (1873)  ;  Tabor  v.  Mackkee,  58  Ind.  290  (1S77)  ;  Egolf  v.  Bryant, 
63  Ind.  365  (1878)  ;  Mathews  v.  Taaffe,  44  Minn.  400,  46  N.  W.  850  (1890)  ; 
East  St.  Louis  v.  Thomas,  102  111.  453  (1882)  ;  In  re  Lasak,  131  N.  Y.  624 
(1892);  Boone  v.  Bush,  91  Tenn,  29,  17  S.  W.  792  (1891)  ;  Northwestern 
Mut.  Life  Ins.  Co.  v.  Barbour,  95  Ky.  7,  23  S.  W.  584,  15  Ky.  L.  394  (1893)  ; 
Rumbough  v.  Young,  119  N.  Car.  567,  26  S.  E.  143  (1896)  ;  Samaha  v.  Saniaha, 
18  App.  Dist.  Columbia,  76  (1910)  ;  Lay  v.  Collins,  74  Ark.  536,  86  S.  W. 
281  (1905)  ;  Cray  v.  Granger,  48  Wash.  442,  93  Pac.  912  (1908)  ;  Menke  v. 
Barnhart,  12,7  111.  App.  223  (1907)  ;  Znckcrman  v.  Witkowski,  115  N.  Y.  S. 
157  (1909)  ;  Hamlin  v.  Walker,  228  Mo.  611,  128  S.  W.  945  (1910)  ;  Giirr  v. 
Brinson,  138  Ga.  665,  75  S.  E.  979  (1912)  ;  Long  v.  Bagwell,  38  Okla.  312, 
133  Pac.  50  (1913)- 

In  England  the  rules  of  the  supreme  court,  order  21,  rule  16,  provide : 
"If,  in  any  case  in  which  the  defendant  sets  iip  a  counterclaim,  the  action 
of  the  plaintiff  is  stayed,  discontinued,  or  dismissed,  the  counterclaim  may 
nevertheless  be  proceeded  with."  Roberts  v.  Booth,  L.  R.  (1893)  i  Ch.  Div. 
52;  Adams  v.  Adams,  L.  R.  (1892)  i  Ch.  Div.  369.  In  equity  see  Pullman's 
Palace  Car  Co.  v.  Cent.  Tr.  Co.,  171  U.  S.  138,  43  L.  ed.  108,  18  Sup.  Ct. 
808  (1897);  Boyle  V.  Stallings,  140  N.  Car.  524,  53  S.  E.  346  (1906); 
Inman  v.  Hodges,  80  S.  Car.  455,  61  S.  E.  958  (1908)  ;  Frost  v.  Idaho  Irriga- 
tion Co.,  19  Idaho  372,  114  Pac.  38  (1911)  ;  Tee  v.  Noble,  23  N.  Dak.  225, 
13s  N.  W.  769  (1912)  ;  Brooks  v.  White,  22  Cal.  719,  136  Pac.  500  (1913)  ; 
Holmes  v.  Holt,  90  Kans.  774,  136  Pac.  246  (1913). 

26 — Civ.  Proc. 


402  TKIAL 

suited  without  his  consent?  2iul.  Did  the  court  err  in  refusinj^  the 
motion  for  a  nonsuit?  Botli  questions  were  answered  in  the  affirm- 
ative and  a  new  trial  was  granted.  Upon  tlie  first  point  tlic  opinion 
of  the  court  was  as  follows:'-'^ 

Bf.nnett,  J. :  As  to  tlie  right  of  tlie  court  to  direct  a  compulsory- 
nonsuit.  Upon  this  point  we  are  met  by  a  contrariety  of  authorities 
and  a  diversity  of  argument.  In  some  of  the  states,  the  affirmative, 
in  others  the  negati\e,  of  the  proposition  is  asserted  in  theory  and 
maintained  in  practice.  In  some,  it  is  held,  that  the  court  has  no 
right,  in  any  case,  to  nonsuit  the  plaintiff  even  though  his  evidence 
he  insufficient  in  law  to  support  his  action;  whilst,  in  others,  it  is 
settled,  that  a  jury  should  be  allowed  to  receive  no  cause  until  the 
court  is  satisfied  that  the  evidence  is  sufficient  in  law  to  autliorize 
the  jury  to  find  a  verdict  in  favor  of  the  plaintiff.  In  all,  however, 
it  is  agreed,  that  cases  may  sometimes,  under  certain  forms,  be 
witlidrawn  from  the  jury  and  reserved  for  tlie  sole  consideration  and 
determination  of  the  court.  This  last  is  a  common  ground  in  the 
English  courts,  in  the  federal  courts  of  the  Union,  and  in  the  courts 
of  the  various  states.  The  only  difference  upon  the  subject  which 
appears  to  exist,  is  as  to  the  manner  in  which  the  conceded  end  shall 
be  reached.  In  the  federal  courts,  and  in  the  courts  of  some  of  the 
states,  the  object  is  attained  by  means  of  the  cumbrous  and  compli- 
cated machinery  of  a  demurrer  to  evidence;  in  the  courts  of  others 
of  tlie  states,  through  the  simpler  and  easier  process  of  motion  for 
nonsuit  at  the  trial.  In  both  cases,  the  same  end  is  arrived  at;  and 
the  one  remedy  as  well  as  the  other  can  be  applied  only  where  the 
plaintiff  shall  have  failed  to  have  made  out  a  case  which  the  law  says 
is  proper  to  be  submitted  to  a  jury.  The  former  practice  is  constantly 
passing  more  and  more  into  disfavor,  and  the  latter  usurping  its 
place.  Thus,  at  the  present  day,  in  the  English  courts,  although  it 
is  held,  in  theory,  to  be  optional  witli  the  plamtiff  w'hether  he  shall 
be  nonsuited  or  not,  and  that  he  may  compel  tlie  defendant  to  resort 
to  a  demurrer  to  evidence,  yet  the  constant  practice  there  is  for  the 
plaintiff,  upon  tlie  suggestion  of  the  judge  that  the  evidence  is 
insufficient,  to  submit  to  a  nonsuit,  w^ith  leave  to  move  the  court  in 
banc  to  set  it  aside.^*^  Graham's  Pr.  270.  In  the  state  of  New  York 
the  practice  of  compulsory  nonsuit  is  perfectly  well  settled.  Clements 
v.  Benjamin,  12  Johns.  (N.  Y.)  298;  Pratt  y.  Hull,  13  Johns.  (N.  Y.) 
334;  Stuart  V.  Simpson,  1  Wend.  (N.  Y.)  376;  Betts  v.  Jackson,  6 
Wend.  (N.  Y.)  173.  The  reasoning  of  the  court  upon  this  subject  in 
Pratt  V.  Hull  is  convincing:  "The  answer  to  this  abstract  question," 
they  say,  "can  not  admit  of  a  doubt.  This  must  be  a  power  vested 
in  the  court.  It  results  necessarily  from  their  being  made  the  judges 
of  the  law  of  the  case  where  no  facts  are  in  dispute.  It  is  a  pure 
question  of  law,  whether  under  a  given  state  of  facts,  the  plaintiff 
is  in  law  entitled  to  recover.  Unless  this  is  a  question  of  law  for  the 
courts,  there  is  no  meaning  in  what  has  been  considered  a  salutary 


The   statement   of    facts   is   abridged   from  the   opinion   of   the   court, 
only  a  part  of  which  is  printed. 

■"aBut  see  note  89  to  Washburn  v.  Allen  ante  p.  394. 


RINGGOLD  V.    HAVEN  403 

rule  in  our  courts  of  justice,  that  to  questions  of  law  the  judges  are 
to  respond,  and  to  questions  of  fact  the  jury."  The  general  rule  is 
well  laid  down  in  Stuart  v.  Simpson,  above  cited,  as  follows :  "If  the 
evidence  would  not  authorize  a  jury  to  find  a  verdict  for  the  plain- 
tiff, or  if  the  court  would  set  it  aside,  if  so  found  as  contrary  to  evi- 
dence, in  such  case  it  is  the  duty  of  the  court  to  nonsuit  the  plaintiff." 
The  power  of  a  court,  acting  according  to  the  course  of  the  common 
law,  to  set  aside  a  verdict,  which  is  contrary  to,  or  unsustained  by, 
the  evidence,  is  too  clear  to  admit  of  a  doubt;  and  the  power  of  a 
civil  law  court  of  second  instance  to  reverse  the  judgment  of  a  court 
of  first  instance,  on  the  ground  that  it  is  against  the  weight  of  evi- 
dence, is  also  unquestionable.  If,  therefore,  upon  a  given  state  of 
facts,  a  court  would  be  obliged  to  set  aside  a  verdict  of  the  jury  as 
against  the  evidence,  we  see  no  reason  or  propriety  in  submitting 
such  facts  to  them  for  their  consideration.  When  their  determina- 
tion will  be  a  nullity,  why  compel  them  to  deliberate  ?  Such  a  course 
is  neither  creditable  to  the  law,  nor  complimentary  to  the  jury.  Nor, 
in  adopting  the  practice  of  nonsuit,  is  there  to  be  apprehended  any 
danger  of  encroachment  upon  the  rights  of  parties  or  of  abridgment 
of  the  prerogatives  of  juries.  This  system  of  trial  can  be  expected  to 
operate  beneficially,  and  with  certain,  not  fickle,  results,  only  when 
the  practical  sense  of  a  jury  is  guided  by,  and  acts  in  subserviency 
to,  established  principles  of  law,  expounded  and  enforced  by  the 
court.  We  are  of  the  opinion,  therefore,  that  the  power  of  compul- 
sory nonsuit  should  be  upheld.^^ 


®'At  common  law  a  nonsuit  was  never  ordered  against  the  will  of  the 
plaintiff.  If  he  failed  to  make  out  a  case  the  court  directed  him  to  be  called 
and  it  was  usual,  in  such  a  case,  to  submit  to  a  nonsuit  with  leave  to  move 
to  set  it  aside ;  but  if  the  plaintiff  thought  proper  to  answer  when  he  was 
called,  he  might  do  so  and  insist  on  taking  a  verdict.  Pochin  v.  Pawley,  i 
Wm.  Bl.  670  (1769)  ;  Dewar  v.  Piirday,  4  N.  &  M.  633  (1835)  ;  Stancliffe  v. 
Clarke,  7  Exch.  439  (1852)  ;  Ross  v.  Gill,  I  Wash.  (Va.)  87  (1792)  ;  Thweat  v. 
Finch,  I  Wash.  (Va.)  217  (1793)  ;  Irving  v.  Taggart,  I  Serg.  &  JR..  (Pa.)  360 
(1815)  ;  Mitchell  v.  New  England  Marine  Ins.  Co.,  23  Mass.  117  (1S26)  ; 
Smith  V.  Crane,  12  Vt.  487  (1840).  Following  this  rule  it  has  been  frequently- 
held  that  the  court  has  no  power  to  order  a  nonsuit,  where  the  plaintiff 
msists  on  going  to  the  jury.  De  Wolf  v.  Raband,  i  Pet.  (U.  S.)  476,  7 
L.  ed.  227  (1828)  ;  Booe  v.  Davis,  5  Blackf.  (Ind.)  115  (1839)  ;  Wells  v.  Gaty, 
8  Mo.  681  (1844)  ;  Saunders  v.  Coffin,  16  Ala.  421  (1849)  ;  Rankin  v.  Curtenius, 

12  111.  334  (1851).  Compare  Plolmcs  v.  Chicago  &  A.  R.  Co.,  04  111.  439 
(1880)  ;  Hill  V.  Rucker,  14  Ark.  706  (1854)  ;  Castle  v.  Bv.llard,  64  U.  S.  172, 
16  L.  ed.  424  (1859);  Case  v.  Hannahs,  2  Kans.  490  (1864);  Hudson  v. 
Strickland,  49  Miss.  591  (1873)  ;  Oscanyan  v.  Arms  Co.,  103  U.  S.  261,  26  L. 
ed.  539  (1880)  ;  Zittle  v.  Schlesinger,  46  Nebr.  844,  65  N.  W.  892  (1896).  In 
other  jurisdictions  the  power  to  order  a  compulsory  nonsuit  is  exercised 
where  the  plaintiff's  evidence  is  insufficient  in  law  to  maintain  the  action. 
Eddy  v.  Wilson,  i  G.  Greene  (Iowa)  259  (1848);  Bailey  v.  Kimball,  26  N. 
H.  351  (1853)  ;  Central  Railroad  v.  Moore,  24  N.  J.  L.  824  (1854)  ;  Ellis  v. 
Ohio  Life  Ins.  &■  Trust  Co.,  4  Ohio  St.  628,  64  Am.  Dec.  610  (1855)  ;  Nauga- 
tuck  R.  Co.  v.  Waterbv.ry  Button  Co.,  24  Conn.  468  (1856)  ;  Gardinier  v.  Otis, 

13  Wis.  460  (1861)  ;  Cooper  v.  Waldron,  50  Maine  80  (1862)  ;  Aycrigg  v. 
A^.  Y.  &  E.  R.  Co.,  30  N.  J.  L.  460  (1864)  ;  Deyo  v.  A^.  Y.  Cent.  R.  Co.,  34 
N.  Y.  9,  88  Am.  Dec.  418   (1865)  ;   f^ifl  v    Th^   hinting   Trust.  Cn  .   108  Pa.   St. 

>^  L-ll^8£),  see  act  of  March  11,  1875,  P.  L.  6,  extending  to  all  parts  of  the 

\ )  commonwealth  the  act  of  March   11,   1836,  P.  L.  76,  and  13  P.  &  L.   Dig. 

Vof  Dec.  23154;   Turner  v.  Bowley,  12  Times  Law  Rep.  402  (1896);  Hanna 


404  TRIAL 

RUMFORD  NATIONAL  BANK  z:   ROBAIN  ARSENAULT. 

Su  PKKME  JlDlCIAL  CoUUT  OF  IMaINE,    I9II. 
108  Maine  Reports  241' 

Emery,  C.  J. :  This  was  an  action  against  the  Richmond  Manu- 
facturing Company  and  three  individuals,  Riley,  Maxwell  and  Arsc- 
nault,  as  promisors  upon  a  promissory  note  payable  to  the  plaintiff 
bank.  The  note  offered  and  admitted  in  evidence,  however,  was 
signed  as  promisors  only  by  tlie  Richmond  Company,  Riley  and 
Maxwell.  Arsenault  had  merely  endorsed  it  as  payee  and  endorser. 
The  defendants  asked  for  an  order  of  nonsuit  because  of  this 
variance,  whereupon  the  plaintiff  by  leave  of  court  discontinued  as 
to  Arsenault.  The  court  nevertheless  then  ordered  a  nonsuit  and  the 
plaintiff  excepted. 

1.  The  discontinuance  as  to  Arsenault  left  the  action  as  if  orig- 
inally brought  against  the  other  three  defendants  only,  so  that  at  the 
time  of  the  nonsuit  there  was  no  variance  as  to  defendants  between 
tlie  note  declared  on  and  tliat  put  in  evidence. 

2.  The  note  was  subscribed  by  Riley  and  Maxwell  personally, 
and  also  bore  the  subscription  "Richmond  Manufacturing  Company 
by  Edwin  Riley,  Pres.,  J.  L.  Cummings,  Treas."  There  was  no  other 
evidence  that  the  note  was  that  of  the  company.  This  lack  of  evi- 
dence is  also  urged  as  sufficient  ground  for  the  nonsuit.  But  the 
nonsuit  can  not  be  maintained  on  that  ground.  The  note  was  admit- 
tedly the  note  of  Riley  and  Maxwell,  the  individual  defendants,  since 
tliey  had  not  denied  their  signatures  as  required  by  Court  Rule  X. 
As  the  case  stood,  the  plaintiff  was  entitled  to  a  verdict  against  them, 
even  if  not  against  the  company,  R.  S.,  ch.  84,  sec.  98.  The  in- 
sufficiency of  tlie  evidence  against  the  company,  (if  it  was  in- 
sufficient) might  have  required  a  direction  for  a  verdict  in  its  favor 
if  asked  for,  but  did  not  require,  nor  authorize,  a  nonsuit  as  to  the 
other  defendants. 

3.  In  the  declaration  tlie  note  was  described  as  bearing  interest 
while  the  note  in  evidence  did  not  bear  interest.  This  variance,  how- 
ever, was  not  urged  at  the  trial  as  ground  for  the  nonsuit,  and  is 
easily  remedied  by  amendment  of  the  declaration.  Hence  it  can  not 
be  admitted  here  as  ground  for  sustaining  the  nonsuit. 


V.  De  Garmo,  140  Cal.  172,  73  Pac.  830  (1903)  ;  Kearns  v.  Southern  Railroad, 
139  X.  Car.  470,  52  S.  E.  131  (1905)  ;  Martin  v.  Werman,  107  App.  Div.  482, 
95  X.  Y.  S.  284  (1905).  But  where  a  prima  facia  case  is  shown  the  motion 
must  be  denied.  Davis  v.  Columbia  &  Greenville  R.  Co.,  21  S.  Car.  93  (1883)  ; 
Brearley  v.  London  &  N.  W.  R.  Co.,  15  Times  Law  Rep.  237  (1899)  ;  American 
Mfg.  Co.  V.  Smith,  3j  Pa.  Super._Ct.  469  (1907);  Sloan  v.  Pliiladelphia_7!r 
R.  R.  Co.  22^  Pa.  5;2r7-t  At1.'Tr^?Tp~('TQOQ)  ;  Fcaley  v.  Bull,  163  N.  Y.  397,  57 
N.  E.  631  (1900)  {Walters  v.  Syracuse  Rapid  Transit  Co.,  178  N.  Y.  50,  70 
N.  E.  98  (1904). 

'The  reporter's  statement  of  facts  is  omitted. 


ISAACS   v.    EVANS  405 

4.  As  a  general  rule  variances  that  are  remediable  by  allow- 
able amendments  or  discontinuance  are  not  grounds  for  a  nonsuit 
unless  the  plaintiff  refuses  to  make  the  necessary  amendments.^ 

Exceptions  sustained.  Case  to  stand  for  trial. 


^ 


ISAACS  V.  EVANS. 


Court  of  Appeal,  1900. 
16  Times  Law  Reports  480  P  -f)^  « 

This  was  an  appeal  from  a  decision  of  Mr,  Justice  Farwell.  The 
action  related  to  an  alleged  partnership  in  a  gold  mine  in  Wales. 
One  of  the  plaintiffs  Thomas  Evans  (who  had  assigned  his  interest 
to  Godfrey  D.  Isaacs)  alleged  that  he  and  Meredith  Evans  the  de- 
fendant had  agreed  to  acquire  a  certain  property  at  Garthgell  in 
Merioneth,  with  a  view  to  mining  goM,  and  that  the  lease  was  made 
to  the  defendant  who  had  worked  the  mine  and  wrongfully  refused 
to  recognize  the  plaintiffs'  interest.  The  defendant  denied  the  part- 
nership, and  pleaded  the  statute  of  fratids.  In  reply  the  plaintiffs 
set  up  acts  which  they  alleged  to  be  in  part  performance. 

When  the  case  was  opened  on  behalf  of  the  plaintiffs  Mr.  Justice 
Farwell  intimated  that  he  would  first  deal  with  the  question  arising 
under  the  statute.  The  plaintiffs'  counsel  desired  to  go  into  tlie  evi- 
dence before  the  question  of  law  was  determined,  but  the  learned 
judge  declined  to  adopt  that  course;  and  at  tlie  conclusion  of  the 
opening  he  decided  against  the  plaintiffs  on  the  ground  that  the 
statute  of  frauds  applied.  He  therefore  dismissed  the  action  with 
costs.  The  plaintiffs  appealed.^ 

The  Master  of  the  Rolls  (Lord  Alverstone)  said  that  the 
learned  Judge  had  decided  this  case  upon  a  preliminary  discussion 
arising  out  of  the  opening  of  the  learned  counsel  for  the  plaintiffs. 
Inasmuch  as  he  (the  Master  of  the  Rolls)  thought  that  there  were 


'A  nonsuit  may  be  ordered  for  a  material  variance  between  the  allegations 
in  the  pleadings  and  the  evidence.  Heath  v.  Freeland,  i  M.  &  W.  543  (1836)  ; 
Waldron  v.  Hopper,  1  N.  J.  L.  339  (1795)  ;  Stone  v.  Knowlton,  3  Wend. 
(N.  Y.)  374  (1829);  Cunningham  v.  3'/iazc?^_^PjL-St40i  (1847)  ;  Beck  v. 
ferrara,  19  Mo.  30  (i8s3)  :  Jcnneson  v.Camden'^&  A  R.  Co..  5  Clark(Pa.') 
409  (1856);  Zeig  V.  Ort,  3  Chand.  (Wis.)  26  (1850);  Hereford~v7Lake, 
15  La.  Ann.  693  (i860);  Flanagan  v.  Wilmington,  4  Houst.  (Del.)  548 
(1873)  ;  Johnson  v.  Moss,  45  Cal.  515  (1873)  ;  Boone  v.  Stover,  66  Mo.  430 
(1877)  ;  Waldhier  v.  Hannibal  &  S.  J.  R.  Co.,  71  Mo.  514  (1880)  ;  Hnggins 
V.  Watford,  38  S.  Car.  504,  17  S.  E.  363  '1892)  ;  Elmore  v.  Elmore,  114  Cal. 
516,  46  Pac.  458  (1896)  ;  Morton  V.  Dennis  5  Pa.  Dist.  342  (1896).  But  an 
opportunity  to  amend  is  generally  allowed.  ToJice  Jury  v.^Jahoiidean,  27 
La.  Ann.  224  (1875)  ;  Harkins  v.  Edwards,  i  Iowa  296  (1855)  ;  Richardson 
V.  Carbon  Hill  Co.,  6  Wash.  52,  32  Pac.  1012,  20  L.  R.  A.  338  (1893)  ; 
Little  field  v.  Maine  Cent.  R.  Co.,  104  Maine  126,  71  Atl.  657  (1908),  subject 
to  the  defendant's  right  to  a  continuance  if  surprised.  Bell  v.  Rowland, 
9  Iowa  281   (1859). 

'The  statement  of  facts  is  abridged. 


4C6  TRIAL 

not  suftkient  materials  before  the  court  to  enable  it  to  determine  the 
case  and  that  there  must  be  a  further  inquiry,  he  Avould,  in  accord- 
ance with  the  usual  practice,  abstain  from  saying  anything  upon  the 
questions  wliich  had  been  raised  since  it  might  embarrass  the  parties 
upon  the  further  inquiry.  He  would  only  say  this,  that,  there  being 
here  three  questions  to  be  determined,  viz.,  as  to  what  the  agreement 
was,  whether  there  had  been  part  performance  of  it,  and  what  were 
tlie  rights  of  the  plaintiffs  and  the  defendant — he  did  not  think  that 
the  court  could  deal  with  those  questions  without  hearing  the  evi- 
dence. He  would  have  had  more  hesitation  in  adopting  this  course 
but  for  the  decision  of  the  Court  of  Appeal  in  Fletcher  v.  London 
and  North-Western  Ralhvay  Company,  (1892)  i  Q.  B.  122;  and  hi;; 
hesitation  arose  from  the  fact  that  in  his  own  personal  experience 
he  had  known  many  cases  in  which  the  plaintiff  had  been  nonsuited. 
But  he  thought  that  it  would  not  conduce  to  expedition  if  a  prelim- 
inary judgnient  was  to  be  given  upon  an  assumed  state  of  facts  in  a 
case  where  there  was  any  dispute  as  to  the  real  facts,  and  in  all  cases 
there  ought  to  be  tlie  consent  of  the  plaintiffs'  counsel  to  that  pro- 
cedure. It  was  not  possible  to  say  in  this  case  that  there  had  been 
any  such  consent,  and  it  was  for  that  reason  that  he  was  pressed 
with  the  decision  of  the  Court  of  Appeal  in  Fletcher  v.  London  and 
North-Western  Railzvay  Company.  In  that  case  the  court  laid  it 
down  broadly  that,  except  by  the  consent  of  the  plaintiff's  counsel,  a 
plaintiff  ought  not  to  be  nonsuited  without  the  evidence  being  heard. 
Where  that  consent  was  given  it  might  fairly  be  assumed  that  the 
plaintiff"  was  satisfied  with  the  facts  as  stated  in  the  opening.  This 
case  must  therefore  be  remitted  for  trial. 

Lord  Justice  Rigby  agreed.  He  was  not  sorry  to  be  bound  by  the 
rule  laid  down  in  Fletcher  v.  London  and  North-JVestern  Raihvay 
Company.  In  his  opinion,  as  a  general  rule,  the  time  that  w^as  wasted 
in  discussions  whether  the  witnesses  should  be  called  and  the  almost 
inevitable  disputes  that  arose  when  the  evidence  had  not  been  given, 
more  than  counterbalanced  any  advantage  to  be  gained  by  deciding 
a  case  at  the  trial  upon  a  preliminary  point  of  law. 

Lord  Justice  Collins  said  that  Fletcher  v.  London  and  North- 
western Railway  Company  came  as  somewhat  of  a  surprise  to  the 
profession,  but  it  was  a  decision  of  the  Court  of  Appeal  and  their 
Lordships  were  bound  by  it.  Speaking  for  himself,  where  a  case  was 
tried  before  a  judge  without  a  jury  and  the  counsel  for  the  plaintiff 
had,  as  he  might  be  trusted  to  do,  stated  his  case  up  to  the  very  high- 
water  mark  of  what  he  was  able  to  prove  and  the  judge  was  against 
him,  he  thought  it  would  be  a  w^aste  of  public  time  to  hear  the  evi- 
dence. It  was,  however,  improbable  that  counsel  would  often  insist 
upon  the  evidence  being  heard  when  the  result  must  be  the  same  as 
upon  his  opening  statement.  He  regretted  the  delay  which  would  re- 
sult in  this  case.'* 


*Accord:  Cross  v.  Rix,  29  Times  Law  Rep.  85  (1912)  ;  Fisher  v.  Ftshcr, 
5  Wis.  472  (1856);  Haley  v.  Western  Transit  Co.,  76  Wis.  344.  45  N.  \V. 
16  (1890)  ;  Wheeler  v.  Oregon  R.  &c.  Co.,  16  Idaho  375.  102  Pac.  347  (i909~>  ; 
Pietsch  V.  Pietsch,  245  111.  454,  92  N.  E.  325,  29  L.  R.  A.  N.  S.  218  and  note 
rigio).    See  also  Barlo  v.  Detroit  Iron  &  Steel  Co.,  IS5  Mich.  94,  118  N.  W. 


HOPKINS   v.    CLARK  407 

HENRY  C  HOPKINS  v.  JAMES  F.  A.  CLARK  ET  AL. 
Court  of  Appeals  of  New  York,  1899. 

158  N.  y.  299= 

Bartlett,  J. :  The  defendants  are  Boston  stockbrokers  and  the 
plaintiff  is  their  customer,  residing  in  Philadelphia. 

The  transactions  involved  in  this  suit  took  place  in  February, 
1893.  The  defendants,  on  the  17th  of  February,  1893,  purchased  for 
the  account  of  plaintiff  $10,000  par  value  Reading  railroad  third 
mortgage  bonds  at  forty-two.  At  the  time  this  purchase  was  made 
plaintiff  had  an  open  account  with  tlie  defendants,  showing  a  balance 
due  him  of  $2,737.41.  This  action  was  brought  to  recover  that  bal- 
ance, ignoring  the  purchase  of  the  Reading  bonds,  on  the  theory  that 
it  was  unauthorized  and  duly  repudiated. 

The  action  is  defended  on  two  grounds :  First,  that  Campbell,  3 
member  of  the  defendants'  firm,  was  given  discretionary  authority 
by  plaintiff  to  make  such  purchases  on  his  account  as  he  (Campbell) 
thought  would  be  profitable ;  second,  that  the  Reading  bond  purchase 
was  subsequently  ratified  by  plaintiff. 

There  were  but  two  witnesses  sv/orn,  plaintiff  in  his  own  behalf 
and  defendant  Campbell  for  the  defense. 

The  proofs  were  supplemented  by  a  number  of  letters  that  passed 
between  the  parties  about  the  time  of  this  transaction.  The  conflict 
in  the  evidence  was  unusually  sharp,  and  the  case  was  submitted  to 
the  jury,  who  found  for  the  plaintiff. 

The  first  point  virged  by  appellants  on  this  appeal  is  that  the  evi- 
dence does  not  support  or  tend  to  support  the  verdict  on  which  the 
judgment  was  entered. 

The  course  of  the  trial  was  this:  At  the  end  of  the  plaintiffs' 
case  the  defendants  moved  for  a  dismissal  of  the  complaint.  The 
court  denied  the  motion  and  the  defendants  excepted. 


738    (1908);    Bastian    v.    Philadelphia,    180    Pa.    227,    36  j\tl.    746    (1897); 
Walker  v.  Supple,  54  Ga.  178   (1875),  and  compare  ^kelTon  v.  Schacht,  22 
Cal.  App.  144,  133  Pac.  504  (1913).    In  a  number  of  jurisdictions  the  right 
of  the  court  to  direct  a  verdict  or  nonsuit  upon  the  facts  stated  by  counsel 
is  well  established.  Oscanyan  v.  Arms  Co.,  103  U.  S.  261,  26  L.  ed.  539  ( 1880) 
Lindlcy  v.  Atchison,  T.  &  S.  F.  R.  Co.,  47  Kans.  432,  28  Pac.  201   (1891) 
Butler  V.  National  Home,  144  U.  S.  64,  36  L.  ed.  346,  12  Sup.  Ct.  581  (1892) 
Pratt  V.  Cotnvay,  148  Mo.  291,  49  S.  W.  1028,  71  Am.  St.  602  (1898)  ;  United 
States  v.  Dietrich,  126  Fed.  676   (1904)  ;  Brashcar  v.  Rabenstein,  yi   Kans. 
455,  80  Pac.  950  (1905)  ;  Miner  v.  Hopkinton,  yz  N.  H.  232,  60  Atl.  433  (1905)  ; 
Broivn  v.  District  of  Columbia,  29  App.  D.  C.  273   (1907)  ;  Kelly  v.  Bergen 
Comity  Gas  Co.,  74  N.  J.  L.  604,  67  Atl.  21  (1906)  ;  Hey  v.  Prime,  197  Mass. 
474,  84  N.  E.  141   (1908)  ;  Gross  v.  Bennington,  52  Wash.  417,  100  Pac.  846 
(1909)  ;  D'Aloia  v.  JJnione  Fratcllauza,  84  N.  J.  L.'  683,  87  Atl.  472  (1913). 

A  motion  made  at  the  commencement  of  a  trial  to  dismiss  a  complaint 
on  the  ground  that  it  does  not  state  facts  sufficient  to  constitute  a  cause 
of  action  is  practically  a  demurrer  to  the  complaint  on  that  ground,  and 
it  can  not  be  sustained  unless  it  appears  that  admitting  all  of  the  facts 
alleged,  no  cause  of  action  whatever  is  stated.  Abbott  v.  Easton,  195  N.  Y. 
372,  88  N.  E.  572  (1909). 

"The  arguments  of  counsel  and  part  of  the  opinion  of  the  court   are 
omitted. 


-H^  TKIAL 

Tlie  defense  thou  ]nit  in  their  evidence  and  the  case  was  sub- 
mitted to  the  jury,  without  a  motion  of  any  kind  being  made  on  be- 
lialf  of  the  defendants. 

It  is  now  insisted  that  the  question  of  kiw  that  there  is  no  evi- 
dence to  support  the  verdict  is  before  the  court  by  reason  of  defend- 
ants' excciUion  to  the  denial  of  the  motion  to  dismiss  at  the  end  of 
phiintilT's  case. 

^\'e  are  of  opinion  that  this  exception  is  not  available  here  for  the 
reason  that  the  motion  was  not  renewed  at  the  close  of  the  whole 
evidence. 

The  learned  counsel  for  appellants  insists  that  this  is  not  the  rule 
of  practice  and  cites  a  number  of  cases  to  sustain  his  contention. 
The  following  are  the  cases  cited: 

Erust  \.  Hudson  Rkrr  R.  R.  Co.,  24  How.  Pr.  (N.  Y.)  97.  This 
case  is  not  in  point,  as  it  presented  a  single  exception  upon  the  re- 
fusal of  the  circuit  judge  to  nonsuit  upon  the  whole  evidence  after 
the  testimony  had  been  given  by  the  defendant  and  both  parties  had 
rested. 

Tiffany  v.  St.  John,  65  N.  Y.  314,  Here  the  motion  was  made  and 
denied  at  close  of  plaintiff's  case,  and  Mr.  Commissioner  Dwight,  in 
the  Commission  of  Appeals,  said  that  the  propriety  of  this  ruling 
could  be  regarded  in  the  light  of  the  additional  evidence  taken  after 
the  denial  of  the  motion.  This  same  rule  is  laid  down  in  other  cases 
cited  by  appellants.  Painton  v.  Northern  Central  Railway  Co.,  83 
X.  Y.  7;  Commercial  Bank  of  Keokuk  v.  Pfciffer,  108  N.  Y.  242, 
252;  McCotter  v.  Hooker,  8  N.  Y.  497,  503;  Jackson  v.  Leggett,  7 
Wend.  (N.  Y.)  377.  These  cases  go  to  the  extent  of  holding  that 
the  defendant  could  not  be  heard  to  insist  on  appeal  to  tliis  court 
that  his  motion  to  dismiss  at  the  end  of  plaintiff's  case  should  have 
been  granted,  if  the  defendant's  proofs  had  in  any  way  supplied  the 
defects  of  plaintiff's  case.^ 

Other  cases  are  cited  by  appellants,  but  are  not  in  point,  as  in  all 
of  them  defendant's  motion  to  dismiss  was  renewed  at  tlie  end  of 
the  case.  Schenectady  &  Saratoga  Plankroad  Co.  \.  Thatcher,  11 
N.  Y.  102,  105 ;  Byrnes  v.  N.  Y.,  L.  E.  and  IV.  R.  R.  Co.,  113  N.  Y. 
251,  257;  Potter  V.  A^.  Y.  C.  and  H.  R.R.  R.  Co.,  136  N.  Y.  77,  80. 
In  none  of  these  cases  was  the  point  distinctly  raised  as  to  the  effect 
of  defendant  going  to  the  jury  after  his  own  case  is  closed  without 
renewing  his  motion  to  dismiss  made  at  the  end  of  plaintiff's  evi- 
dence. 

It  is  doubtless  true  that  this  state  of  the  authorities  has  proved 
misleading  and  tended  to  create  some  confusion  in  the  minds  of  the 
profession  as  to  the  correct  practice.  It  is  also  true  that  it  may  be 
inferred  from  some  of  the  cases  cited  that  if  defendant's  proofs  had 
not  supplied  the  defects  of  plaintiff's  case,  the  exception  at  close  of 


"Accord:  Weil  v.  Ncvitt,  18  Colo.  10,  31  Pac.  487  (1892);  Ingalls  v. 
Olberg,  70  Minn.  102,  72  N.  VV.  841  (1897)  ;  Hicks  v.  Southern  Ry.,  6,3  S.  Car. 
559,  41  S.  E.  753  (1901)  Van  Cott  v.  North  Jersey  St.  R.  Co.,  72  N.  J.  L. 
229,  62  Atl.  407  (1905)  ;  Trickey  v.  Clark,  50  Ore.  516,  93  Pac.  457  (1908)  ; 
Lou-e  V.  San  Francisco  &  N.  IV.  R.  Co.,  154  Cal.  573,  98  Pac.  678   (1908). 


HOPKINS   v.    CLARK  409 

plaintifiPs  evidence  would  be  available  here.  It,  therefore,  is  desira- 
ble that  the  practice  on  this  point  should  be  settled. 

The  rule  laid  down  by  the  Supreme  Court  of  the  United  States 
seems  the  proper  one,  to  the  effect  that  when  a  defendant,  after  tlie 
close  of  the  plaintiff's  evidence,  moves  to  dismiss,  and,  the  m.otion 
being  denied,  excepts  thereto,  and  then  proceeds  with  his  case,  and 
puts  in  evidence  on  his  part,  he  thereby  waives  tlie  exception,  and 
the  overruling  of  the  motion  to  dismiss  can  not  be  assigned  as  error. 
Union  Pacific  Railway  Co.  V.  Daniels,  152  U.  S.  684;  Columbia  and 
Piiget  Sound  R.  R.  Co.  v.  Hawthorne,  144  U.  S.  202,  206,  and  cases 
cited.'' 

This  rule  is  founded  upon  reason  and  convenience.  In  a  court 
whose  jurisdiction  is  limited  to  the  review  of  questions  of  law,  there 
ought  not  to  be,  as  a  general  rule,  any  necessity  to  examine  the  record 
at  large  in  order  to  determine  whether  an  exception  is  available.  The 
case  at  bar  illustrates  this  point.  It  is  the  contention  of  appellants 
tliat  they  are  entitled  to  the  benefit  of  the  exceptions  taken  to  the 
denial  of  the  motion  to  dismiss  at  the  close  of  plaintiff's  case,  as 
that  case  was  not  strengthened,  but  was  clearly  weakened  by  tlie 
defendants*  evidence.  In  other  words,  this  court  is  to  be  asked  in  all 
cases  to  examine  the  evidence  of  the  defendant,  no  matter  how 
lengthy  it  may  be,  to  determine  whether  tlie  defendant  shall  have 
the  benefit  of  an  exception  concerning  which  all  doubt  would  be  re- 
moved by  his  renewing  tlie  motion  to  dismiss  at  the  close  of  the 
whole  evidence. 

In  holding  in  the  case  at  bar  that  we  can  not  consider  the  excep- 
tion taken  at  the  end  of  plaintiff's  case  and  thus  settling  the  rule  of 
practice,  we  do  not  deprive  the  appellants  of  any  valuable  right,  as 
this  brief  record  very  clearly  discloses,  if  we  were  called  upon  to 
examine  it,  questions  that  were  properly  submitted  to  the  jury. 

The  learned  counsel  for  the  respondent  has  cited  us  to  a  number 
of  cases  where  no  motion  to  dismiss  was  made  by  defendant  at  any 
time  during  the  trial.  The  rule  in  such  cases  has  long  been  settled 
that  the  defendant  by  failing  to  move  concedes  there  was  a  question 
for  the  jury.  Barrett  v.  Third  Ave.  R.  R.  Co.,  45  N.  Y.  628,  631 ; 
Schwinger  v.  Raymond,  105  N.  Y.  648,  649;  Hazvver  v.  Bell,  141 
N.  Y.  140,  143 ;  Pollock  v,  Pennsylvania  Iron  JJ'orks  Co.,  157  N.  Y. 
699;  Hecla  Powder  Co.  v.  Sigua  Iron  Co.,  157  N.  Y.  437. 

It  follows  that  the  verdict  of  the  jury  must  stand  and  the  judg- 
ment entered  thereon  should  be  affirmed,  unless  there  are  exceptions 
disclosed  by  the  record  that  entitle  the  defendants  to  a  reversal.^ 

Judgment  affirmed. 


'Accord:  Runkle  V.  Burnham,  153  U.  S.  216,  38  L.  ed.  694,  14  Sup.  Ct. 
837  (1894)  ;  Sigafus  v.  Porter,  179  U.  S.  116,  45  L.  ed.  113,  21  Sup.  Ct.  34 
(1900)  ;  Northwestern  Steamship  Co.  v.  Griggs,  146  Fed.  472  (1906)  ;  Carr 
V.  Manahan,  44  Vt.  246  (1872)  ;  Hurley  v.  O'Sidlivan,  137  Mass.  86  (1884)  ; 
Joliet  A.  &  N.  R.  Co.  v.  Velie,  140  111  59,  29  N.  E.  706  (1892);  Chicago 
&  G.  W.  R.  Co.  V.  Wedel,  144  111.  9,  32  N.  E.  547  (1892)  ;  Lvnch  v.  Johnson, 
109  Mich.  640,  67  N.  W.  908  (1896)  ;  Field  v.  Tliornell,  106  Iowa  7,  75  N.  \V. 
685,  68  Am.  Rep.  281    (1898). 

^Accord:  Wangner  v.  Grimm,  169  N.  Y.  421  (1902);  Sigua  Iron  Co. 
V.  Brown,  171  N.  Y.  488,  64  N.  E.  194  (1902)  ;  Bopp  v.  A^.  Y.  El.  V.  T.  Co., 


410  TKIAL 

SECTION  7.     DIRECTION  OF  VERDICT. 

PLEASANTS  v.  FANT. 

Supreme  Court  of  the  United  States,  1874. 

89  U.  S.  116. 


X 


Error  to  the  circuit  court  for  the  District  of  Maryland.  R.  &  H. 
Pleasants  sued  Fant  in  the  court  below  and  tlie  only  question  was 
whetlier  tlie  defendant  was  a  partner  in  the  firm  of  Keene  &  Co. 
Testimony  was  offered  to  prove  that  Fant  had  procured  for  Keene  a 
loan  of  ;?  10,000  from  a  bank  of  which  he  was  president  and  that 
Keene  had  voluntarily  promised  to  give  Fant  a  part  of  the  profits 
jrom  the  transaction,  but  had  mentioned  no  particular  portion  of  the 
profits.  i\t  the  conclusion  of  the  testimony  the  court  said  to  tlie  jury : 

"There  is  no  evidence  in  this  cause  from  which  the  jury  can  find 
that  the  defendant  had  such  an  interest  in  the  purchase  and  sale  of 
the  cotton  by  Keene  &  Co.  as  will  make  him,  the  defendant,  a  partner 
as  to  third  persons,  and  the  jury  will,  therefore,  find  their  verdict 
for  defendant." 

Verdict  and  judgment  for  defendant.  Plaintiff  brings  error." 

]\Iiller,  J. :  We  are  pressed  with  the  proposition  that  it  was  for 
the  jury  to  decide  this  ciucslion,  because  the  testimony  received  and 
offered  had  some  tendency  to  establish  a  participation  in  the  profits, 
and  the  question  of  liability  under  such  circimi stances  should  have 
been  submitted  to  them,  with  such  declarations  of  what  constitutes  a 
partnership  as  would  enable  them  to  decide  correctly. 

No  doubt  there  are  decisions  to  be  found  which  go  a  long  way  to 
hold  that  if  there  is  the  slightest  tendency  in  any  part  of  the  evidence 
to  support  plaintiff's  case  it  must  be  submitted  to  the  jury,  and  in  the 
present  case,  if  the  court  had  so  submitted  it,  with  proper  instruc- 
tions, it  would  be  difficult  to  say  that  it  would  have  been  an  error  of 
which  the  defendant  could  have  complained  here. 

But,  as  was  said  by  this  court  in  the  case  of  the  Improvement 
Company  v.  Munson,^^  recent  decisions  of  high  authority  have  estab- 
lished a  more  reasonable  rule,  that  in  every  case,  before  the  evidence 
is  left  to  the  jury,  there  is  a  preliminary  question  for  the  judge,  not 
whether  there  is  literally  no  evidence,  but  whether  there  is  any  upon 
which  a  jury  can  properly  proceed  to  find  a  verdict  for  the  party 

177  I^'-  Y.  33  (1903)  ;  Spencer  v.  State,  187  N.  Y.  484,  80  N.  E.  375  (1907)  ; 
Seeman  v.  Levine,  205  N.  Y.  514,  99  N.  E.  158  (1912)  ;  Barrow  v.  B.  R.  Lewis 
Lumber  Co.,  14  Idaho  698,  95  Pac.  682  (1908)  ;  Bordeaux  v.  Atlantic  Coast 
Line  R.  Co.,  150  N.  Car.  528,  64  S.  E.  439  (1909).  Compare  Van  Ness  v. 
North  Jersey  St.  R.  Co.,  75  X.  J.  L.  273,  67  Atl.  1027  (1907)  ;  Dryden  v. 
Pelton-Armstrong  Co.,  53  Ore.  418,  loi  Pac.  190  (1909);  Northern  Pac. 
R.  Co.  V.  Spencer,  56  Ore.  250,  108  Pac.  180  (1910). 

•The  statement  of  facts  is  abridged  and  part  of  the  opinion  of  the  court 
omitted. 

'"81  U.  S.  442,  21  L.  ed.  867   (1871). 


PLEASANTS   V.    FANT  4II 

producing  it,  upon  v;hom  the  onus  of  proof  is  imposed.  The  English 
cases  there  cited  fully  sustain  the  proposition,^^  and  the  decisions  of 
this  court  have  generally  been  to  the  same  effects- 
It  is  the  duty  of  a  court  in  its  relation  to  the  jury  to  protect 
parties  from  unjust  verdicts  arising  from  ignorance  of  the  rules  of 
law  and  of  evidence,  from  impulse  of  passion  or  prejudice,  or  from 
any  other  violation  of  his  lawful  rights  in  the  conduct  of  a  trial. 
This  is  done  by  making  plain  to  them  the  issues  they  are  to  try,  by 
admitting  only  such  evidence  as  is  proper  in  these  issues,  and  reject- 
ing all  else ;  by  instructing  them  in  the  rules  of  law  by  which  that  evi- 
dence is  to  be  examined  and  applied,  and  finally,  when  necessary,  by 
setting  aside  a  verdict  which  is  unsupported  by  evidence  or  contrary 
to  law. 

In  the  discharge  of  this  duty  it  is  the  province  of  the  court,  either 
before  or  after  the  verdict,  to  decide  whether  the  plaintiff  has  given 
evidence  sufficient  to  support  or  justify  a  verdict  in  his  favor.  Not 
whether  on  all  the  evidence  the  preponderating  weight  is  in  his  favor, 
that  is  the  business  of  the  jury,  but  conceding  to  all  the  evidence 
offered  the  greatest  probative  force  which  according  to  the  law  of 
evidence  it  is  fairly  entitled  to,  is  it  sufficient  to  justify  a  verdict? 
If  it  does  not,  then  it  is  the  duty  of  the  court  after  a  verdict  to  set  it 
aside  and  grant  a  new  trial.  IMust  the  court  go  through  the  idle  cere- 
mony in  such  a  case  of  submitting  to  the  jury  the  testimony  on  which 
plaintiff  relies,  when  it  is  clear  to  the  judicial  mind  that  if  the  jury 
should  find  a  verdict  in  favor  of  plaintiff  that  verdict  would  be  set 
aside  and  a  new  trial  had  ?  Such  a  proposition  is  absurd,  and  accord- 
ingly we  hold  the  true  principle  to  be  that  if  tlie  court  is  satisfied 
that,  conceding  all  the  inferences  which  the  jury  could  justifiably 
draw  from  the  testimony,  the  evidence  is  insufficient  to  warrant  a 
verdict  for  the  plaintiff,  the  court  should  say  so  to  the  jury.  In  such 
case  the  party  can  submit  to  a  nonsuit  and  try  his  case  again,  if  he 
can  strengthen  it,  except  where  the  local  law  forbids  a  nonsuit  at 


^Jewell  V.  Parr,  13  C.  B.  909  (1853)  ;  Toomey  v.  London,  Brighton  & 
South  Coast  R.  Co.,  3  C.  B,  N.  S,  146  (1857)  ;  Ryder  v.  IVombwell,  L.  R.  4 
Exch.  31  (1868),  In  the  last  case  it  is  said  by  Willes,  J.:  "It  was  formerly 
considered  necessary  in  all  cases  to  leave  the  question  to  the  jury,  if  there 
was  any  evidence,  even  a  scintilla,  in  support  of  the  case,  but  it  is  now 
settled  that  the  question  for  the  judge  (subject  of  course  to  review)  is,  not 
whether  there  is  literally  no  evidence,  but  whether  there  is  none  that_  ought 
reasonably  to  satisfy  the  jury.that  the  fact  sought  to  be  proved  is  established." 
See  further,  Thompson  on  Trials,  vol.  II,  p.  1595 ;  6  Encyclopaedia  of  Pleading 
and  Practice,  667 ;  38  Cyc.  1563. 

^Parks  V.  Ross,  11  How.  (U.  S.)  362,  13  L.  ed.  730  (1850)  ;  Schuchardt 
V.  Aliens,  I  Wall.  (U.  S.)  359,  17  L.  ed.  64:2  (1863);  Commissioners  of 
Marion  County  v.  Clark,  94  U.  S.  278,  24  L.  ed.  59  (1876)  ;  Hathaway  v.  East 
Tennessee  R.  Co.,  29  Fed.  489  (1886);  Scho field  v.  Chicago,  &c.,  R.  Co., 
114  U.  S.  615,  29  L.  ed.  224,  5  Sup.  Ct.  1125  (1884);  Treat  Mfg.  Co.  v. 
Standard  Steel  &c.  Co.,  157  U.  S.  674,  39  L.  ed.  853,  I5  Sup.  Ct.  718  (1894)  ; 
Delaware  L.  &  W.  R.  Co.  v.  Converse,  139  U.  S.  469,  35  L.  ed.  213,  il  Sup. 
Ct.  569  (1890)  ;  Hepner  v.  United  States,  213  U.  S.  103,  53  L.  ed.  720  (1909)  ; 
Delk  V.  St.  Louis,  &c.,  R.  Co.,  220  U.  S.  580,  55  L.  ed.  590  (1910). 


.|IJ  TRIAL 

that  staple  of  tlic  trial,  or  if  he  lias  done  his  best  he  must  abide  the 
jiulgiiicnt  of  the  court,  subject  to  the  rij^hts  of  review,  whether  he 
has  made  such  a  case  as  ous^ht  to  be  submitted  to  the  jury;  such  a 
case  as  a  jury  mic^lit  justifiably  find  for  him  a  verdict. 
Judgiuent  aflirmed.^^ 


^IcDONALD  V.  IMETROrOLITAN  STREET  RAILWAY  CO. 

Court  of  Appeals  of  New  York,  1901. 
167  A'.  Y.  66.^' 

^Iartin,  J.:  This  action  was  for  personal  injuries  resulting  in 
'tlie  death  of  tlie  plaintiff's  intestate,  and  was  based  upon  the  alleged 
'negligence  of  tlie  defendant.  An  appeal  was  allowed  to  tliis  court 
upon  the  ground  of  an  existing  conllict  in  the  decisions  of  different 
departments  of  the  appellate  division  as  to  when  a  verdict  may  be 
directed  where  there  is  an  issue  of  fact,  and  because  in  this  case  an 
erroneous  principle  was  asserted  which,  if  allowed  to  pass  uncor- 
rected, would  be  likely  "to  introduce  confusion  into  the  body  of  the 
law."  Sciolina  v.  Erie  Preserving  Co.,  151  N.  Y.  50.  The  court  hav- 
ing directed  a  verdict,  the  appellant  is  entitled  to  the  most  favorable 
inferences  deducible  from  the  evidence,  and  all  disputed  facts  are 
to  be  treated  as  established  in  her  favor.  Ladd  v.  JEtna  Ins.  Co.,  147 
N.  Y.  478,  482;  Higgins  V.  Eagleton,  155  N.  Y.  466;  Ten  Eyck  v. 
U'hitheck,  156  N.  Y.  341,  349;  Bank  of  Monongahela  Valley  v. 
Weston,  159  N.  Y.  201,  208. 

It  is  believed,  the  testimony  of  the  plaintiff's  witnesses  was  suffi- 
cient to  justify  the  jury  in  finding  the  defendant  negligent  and  the 
plaintiff's  intestate  free  from  contributory  negligence.  The  evidence 
of  the  defendant  was  in  many  respects  in  direct  conflict,  and  if 
credited  would  have  sustained  a  verdict  in  its  favor.  Whether  the 
defendant  was  negligent,  tlie  plaintiff's  intestate  free  from  contribu- 


*'Accord:  Bartclott  v.  International  Bank,  II9  111.  259,  9  N.  E.  898 
(1887)  ;  Hite  v.  Metropolitan  St.  Ky.,  130  Mo.  132,  31  S.  W.  262^  X2  S.  W.  Z3, 
51  Am.  St.  555  (1895)  ;  Saltier  v.  Chicago  R.  I.  &  P.  R.  Co.  71  Nebr.  213, 
98  N.  W.  663  (1904)  ;  West  fall  v.  Wait,  165  Ind.  35^  jz  N.  E.  1089  (1Q05)  ; 
J'andergrift  Const.  Co.  V.  Camden,  &c.,  R.  Co.,  74  N.  J.  L.  669,  65  Atl.  986 
( 1906;  ;  Cobb  V.  Glenn  Boom  Lumber  Co.,  57  W.  Va.  49,  49  S.  E.  1005,  no  Am. 
St.  734  (1905)  ;  Walker  v.  Warner,  31  App.  (D.  C.)  76  (1908)  ;  Krenz  v.  Lee, 
104  Minn.  455,  Ii6  N.  W.  832  (1908)  ;  Hinckley  v.  Danbury,  81  Conn.  241,  70 
Atl.  590  (1908)  ;  Weston  v.  Livezey,  45  Colo.  142,  100  Pac.  404  (1909)  ;  Well- 
ington V.  Corinna,  104  Alaine  252,  71  Atl.  889  (1908).  In  the  same  manner  as  for 
the  defendant,  a  verdict  may  be  directed  for  a  plaintiflf  who  has  fully  made  out 
his  case,  where  the  defendant's  evidence  does  not  warrant  a  finding  in  his  fa- 
vor. Tilly  v.  Cox,  119  Ga.  867,  47  S.  E.  219  (1904)  ;  Rochester  Mach.  Tool 
Works  V.  Weiss,  100  Wis.  545,  84  N.  W.  866  C1901)  ;  Gilchrist  v.  Brown,  165 
Pa.  St.  27s  (1895)  ;  Friedline  v.  State,  93  Ind.  366  (1883)  ;  Harding  v.  Roman 
Catholic  Church,  113  App.  Div.  685,  99  N.  Y.  S.  945  (1906)  ;  Xjt)ldstein  v. 
D'Arcy,  201  Mass,  312,  87  N.  E.  584  (1909). 

"The  arguments  of  counsel  and  part  of  the  ©pinion  of  the  court  are 
omitted. 


m'donald  v.  metropolitan  ST.  R.  CO.  413 

tory  negligence,  and  the  amount  of  damages  were  submitted  to  the 
jury.  It,  however,  having  agreed  upon  a  general  verdict  and  failed 
to  answer  the  questions  submitted,  the  trial  judge  withdrew  them  and 
directed  a  verdict  for  the  defendant.  Upon  the  verdict  so  directed  a 
judgment  was  entered.  Subsequently  an  appeal  was  taken  to  the 
appellate  division,  where  it  was  affirmed,  and  the  plaintiff  has  now 
appealed  to  this  court. 

Although  there  was  a  direct  and  somewhat  severe  conflict  in  tlie 
evidence,  the  questions  of  negligence  and  contributory  negligence 
were  clearl}^  of  fact,  and  were  for  the  jury  and  not  for  the  court 
unless  the  right  of  trial  by  jury  is  to  be  partially,  if  not  wholly 
abolished.  It  was  assumed  below  tliat  the  plaintiff's  evidence  estab- 
lished a  case  which,  undisputed,  was  sufficient  to  warrant  a  verdict 
In  her  favor.  But  the  court  said  tliat  at  the  close  of  the  defendant's 
evidence  the  plaintiff's  case  had  been  so  far  overcome  that  a  verdict 
in  her  favor  would  have  been  set  aside  as  against  the  weight  of  evi- 
dence. Upon  that  alleged  condition  of  the  proof.  It  held  tliat  the 
trial  court  might  have  properly  submitted  the  case  to  the  jury  if  it 
saw  fit,  but  that  It  was  not  required  to  as  the  verdict  might  have  been 
thus  set  aside.  The  practical  result  of  that  decision,  if  sustained,  is 
in  every  close  case  to  vest  in  the  trial  court  authority  to  determine 
questions  of  fact,  although  the  parties  have  a  right  to  a  jury  trial,  if 
it  tliinks  tliat  the  weight  of  evidence  is  in  favor  of  one  and  it  directs 
a  verdict  in  his  favor. 

There  have  been  statements  by  courts  which  seem  to  lend  some 
justification  to  that  theory,  but  we  think  no  such  broad  principle 
has  been  Intended  and  tliat  no  such  rule  can  be  maintained  either 
upon  principle  or  authority.  The  rule  that  a  verdict  may  be  directed 
whenever  the  proof  Is  such  that  a  decision  to  the  contrary  might 
be  set  aside  as  against  the  weight  of  evidence  would  be  both  uncer- 
tain and  delusive.  There  is  no  standard  by  which  to  determine  when 
a  verdict  may  be  tlius  set  aside.  It  depends  upon  the  discretion  of  the 
court.  The  result  of  setting  aside  a  verdict  and  tlie  result  of  directing 
one  are  widely  different  and  should  not  be  controlled  by  the  same 
conditions  and  circumstances.  In  one  case  there  Is  a  re-trial.  In  the 
other  the  judgment  is  final.  One  rests  in  discretion ;  tlie  other  upon 
legal  right.  One  involves  a  mere  matter  of  remedy  or  procedure. 
The  other  determines  substantive  and  substantial  rights.  Such  a 
rule  would  have  no  just  principle  upon  which  to  rest. 

While  in  many  cases,  even  where  tlie  evidence  is  sufficient  to 
sustain  it,  a  verdict  may  be  properly  set  aside  and  a  new  trial  ordered, 
yet,  that  In  every  such  case  the  trial  court  may,  whenever  it  sees 
fit,  direct  a  verdict  and  thus  forever  conclude  the  parties,  has  no  basis 
in  the  law,  which  confides  to  juries  and  not  to  courts  the  determina- 
tion of  the  facts  in  this  class  of  cases. 

We  think  it  can  not  be  correctly  said  In  any  case  where  the  right 
of  trial  by  jury  exists  and  the  evidence  presents  an  actual  Issue  of 
fact,  that  the  court  may  properly  direct  a  verdict.  So  long  as  a  ques- 
tion of  fact  exists,  it  is  for  the  jury  and  not  for  the  court.  If  the  evi- 
dence Is  Insufficient,  or  if  that  which  has  been  introduced  Is  con- 
clusively answered,  so  that,  as  a  matter  of  law,  no  question  of  credi- 


414  TRIAL 

bility  or  issue  of  fact  remain.-^,  then  the  question  being  one  of  law, 
it  is  the  (lutv  of  the  court  to  dcterniinc  it.  Cut  \\hcnever  a  pkiintilf 
has  cstabUshcd  facts  or  circumstances  \vhich  would  justify  a  linding 
in  his  favor,  the  right  to  have  the  issue  of  fact  determined  by  a  jury 
continues,  and  the  case  must  ultimately  be  submitted  to  it. 

The  credibility  of  Avitnesses,  the  effect  and  weight  of  conflicting 
and  contradictory  testimony,  are  all  questions  of  fact  and  not  ques- 
tions of  law.  If  a  court  of  review  having  power  to  examine  tb.e  facts 
is  dissatisfied  with  a  verdict  because  against  the  weight  or  prepon- 
derance of  evidence,  it  may  be  set  aside,  but  a  new  trial  nuist  be 
granted  before  another  jury  so  that  the  issue  of  fact  may  be  ulti- 
mately determined  by  the  tribunal  to  which  those  questions  are  con- 
fided. If  tliere  is  no  evidence  to  sustain  an  opposite  verdict,  a  trial 
court  is  justified  in  directing  one,  not  because  it  would  have  author- 
ity to  set  aside  an  opposite  one,  but  because  there  was  an  actual 
defect  of  proof,  and,  hence,  as  a  matter  of  law,  the  party  was  not 
entitled  to  recovery.     .     .     . 

\\'e  are  of  the  opinion  that  a  plain  issue  of  fact  was  presented 
for  tlie  jury;  that  the  court  erred  in  directing  a  verdict;  that  the 
judgment  and  order  should  be  reversed  and  a  new  trial  granted,  with 
costs  to  abide  the  event.^^ 

Parker,  C.  J.,  Eartlett,  Vann,  Cullen  and  Werner,  JJ.,  concur. 

Gray,  J.,  dissents. 


"Accord:  Mitchell  v.  Third  Ave.  R.  Co.,  62  App.  Div.  371,  70  N.  Y.  S. 
1 1 18  (1901)  ;  Scott  V.  Barker,  129  App.  Div.  241,  113  N.  Y.  S.  693  (1908) ; 
S eager  v.  Solvay  Process  Co.,  129  App.  Div.  813,  114  N.  Y.  S.  591  (1909)  ; 
Kircher  v.  Iron  Clad  Mfg.  Co.,  134  App.  Div.  144,  nS  N.  Y.  S.  823  (1909)  ; 
Keller  v.  Halsey,  202  N.  Y.  588,  95  N.  E.  634  (1911)  ;  Little  Rock,  &c.,  R. 
Co.  V.  Henson,  39  Ark.  413,  (1882)  ;  Ailee  v.  S.  Car.  Railway  Co.,  21  S.  Car. 
c;50  (1884);  Conadeau  v.  American  Ace.  Co.,  95  Ky.  280  (1894);  Clark 
V.  Stitt,  12  Ohio  C.  C.  759  (1894);  Leiuis  v.  Prien,  98  Wis.  87,  7;^  N.  W. 
654  (1897);  Devlin  V  Beacon_LirMJLcU-l^.  Pa^-5&L_48.  Atl.  482  (1901)  ; 
Heh  v.  ConsoJidat_cd_G_as  (To^oi  Pa.  4^13,  jOj^tl.  994,  88  Am.  St.  819  (1902)  ; 
VinariV.  Supreme  Council,  210  Pa.  456,  00  AtT  10  (1904)- 

In  Denny  v.  WiUiajnsTBf  W^ss^  I  C1S62)  it  is  said:  "The  practical  line 
of  dhtinction  is,  that  if  the  evidence  is  such  that  the  court  would  set  aside 
any  number  of  verdicts  rendered  upon  it,  toties  quotics,  then  the  cause 
should  be  taken  from  the  jun,-,  by  instructing  them  to  find  a  verdict  for 
the  defendant.  On  the  other  hand,  if  the  evidence  is  such  that,  though  one 
lOr  two  verdicts  rendered  upon  it  would  be  set  aside  on  motion,  yet  a  second 
lor  third  verdict  would  be  suffered  to  stand,  the  cause  should  not  be  taken 
•from  the  jury,  but  should  be  submitted  to  them  under  instructions."  Accord : 
Crosby  V.  Wells,  73  N.  J.  L.  790,  67  Atl.  295  ('1906),  see  l^n-n'nj-d  Fxpi-^sf  (:n_ 
v.  V.'iie.  6-1  Pa  St.  201  (1870).  "When  the  determination  of  the  issue  depends 
only  on  the  existence  of  certain  facts,  and  these  are  not  in  question,  the 
decision  rests  with  the  court.  But  when  it  depends  not  merely  on  the  existence 
of  facts,  but  on  conclusions  arising  from  them  respecting  which  there  is 
no  fixed  standard  of  judgment,  it  is  for  the  jury,  even  where  there  is  no 
dispute  as  to  the  facts.  While  facts  may  be  admitted,  the  conclusions  to  be 
drawn  from  them  may  remain  a  matter  of  controversy.  To  justify  a  verdict 
by  direction,  two  conditions  must  concur:  (i)  The  controlling  facts  must  be 
established  beyond  doubt;  (2)  their  effect,  in  the  conclusions  to  which  they 
lead,  must  be  so  clear  and  unquestionable  that  it  may  be  judicially  declared." 
Mcnner  v.  Delaware  &  H.  Canal  Co.,  7  Pa.  Super.  Ct.  135  (1898). 


EMPIRE  STATE  CATTLE  CO.  V.  ATCHISON,  &C.  R.  CO.  415 

X^EMPIRE  STATE  CATTLE  COMPANY  v.  ATCHISON, 
r  TOPEKA  AND  SANTA  FE  RAILWAY  COMPANY. 

Supreme  Court  of  the  United  States,  1907. 
210  U.  S.  I." 

White,  J. :  With  the  object  of  saving  them  from  destruction  by 
the  flood  which  engulfed  portions  of  Kansas  City  on  May  31  and  the 
first  week  of  June,  1903,  more  than  three  thousand  head  of  cattle 
belonging  to  the  petitioners,  which  were  in  the  Kansas  City  stock 
yards,  were  driven  and  crowded  upon  certain  overhead  viaducts  in 
those  yards.  For  about  seven  days,  until  the  subsidence  of  the  flood, 
they  were  there  detained  and  could  not  be  properly  fed  and  watered. 
Many  of  them  died  and  the  remainder  were  greatly  lessened  in 
value.  These  actions  were  brought  by  the  petitioners  to  recover  for 
the  loss  so  sustained  upon  the  ground  that  the  cattle  were  in  the 
control  of  the  defendant  railway  company  as  a  common  carrier,  and 
that  the  loss  sustained  was  occasioned  by  its  negligence. 

The  railway  company  defended  in  each  case  upon  the  ground 
that  before  the  loss  happened  it  had  delivered  the  cattle  to  a  con- 
necting carrier,  but  that  if  the  cattle  were  in  its  custody  it  was  with- 
out fault,  and  the  damage  was  solely  the  result  of  an  act  of  God, 
that  is,  the  flood  above  referred  to. 

As  the  cases  depended  upon  substantially  similar  facts  and  in- 
volved identical  questions  of  law,  they  were  tried  together,  and  at 
the  close  of  the  evidence  the  trial  court  denied  a  peremptory  instruc- 
tion asked  on  behalf  of  the  plaintiffs,  and  gave  one  asked  on  behalf 
of  the  railway  company.    135  Fed.  135. 

While  there  was  some  contention  in  the  argument  as  to  what 
took  place  concerning  the  requests  for  peremptory  instructions,  we 
think  the  bill  of  exceptions  establishes  that  at  the  close  of  the  evi- 
dence the  plaintiffs  requested  a  peremptory  instruction  in  their  .fa- 
vor, and  on  its  being  refused  duly  excepted  and  asked  a  number  of 
special  instructions,  which  were  each  in  turn  refused,  and  exceptions 
were  separately  reserved,  and  the  court  then  granted  a  request  for  a 
peremptory  instruction  in  favor  of  the  railway  company,  to  which 
the  plaintiffs  excepted. 

On  the  writs  of  error  which  were  prosecuted  from  the  Circuit 
Court  of  Appeals  for  the  Eighth  Circuit  that  court  affirmed  the 
judgment  on  the  ground  that  as  both  parties  had  asked  a  peremptory 
instruction  the  facts  were  thereby  submitted  to  the  trial  judge,  and 
hence  the  only  inquiry  open  was  whether  any  evidence  had  been  in- 
troduced which  tended  to  support  the  inferences  of  fact  drawn  by 
the  trial  judge  from  the  evidence.  One  of  the  members  of  the  Cir- 
cuit Court  of  Appeals  (Circuit  Judge  Sandborn)  did  not  concur  in 

"Only  so  much  o£  the  opinion  of  the  court  as  relates  to  peremptory 
instructions  is  printed.  On  a  review  of  the  evidence  the  judgment  of  the 
court  below  was  affirmed. 


4l6  TRIAL 

the  opinion  of  the  court,  because  he  deemed  that  as  the  request  for 
peremptory  instruction  made  on  behalf  of  plalntilTs  ^vas  followed  by 
special  requests  seeking  to  have  the  jury  determine  the  facts,  the 
asking  for  a  peremptory  instruction  did  not  amount  to  a  submission 
of  the  facts  to  the  court  so  as  to  exclude  the  right  to  have  the  case 
go  to  the  jury  in  accordance  with  the  subsecpicnt  special  requests. 
He,  neverlhclcss,  concurred  in  the  judgment  of  affirmance,  because, 
alter  examining  the  entire  case,  he  was  of  oi)inion  that  prejudicial 
error  had  not  been  committed,  as  the  evidence  was  insufficient  to 
have  justified  the  sul)mlssion  of  the  issues  to  the  jury.  147  Fed.  457. 
The  cases  are  here  because  of  the  allowance  of  writs  of  certiorari. 
They  present  similar  questions  of  fact  and  law,  were  argued  together 
and  are,  therefore,  embraced  in  one  opinion.  The  scope  of  the  in- 
quiry before  us  needs,  at  the  outset,  to  be  accurately  fixed.  To  do  so 
requires  us  to  consider  the  question  which  gave  rise  to  a  division  of 
opinion  in  the  Circuit  Court  of  Appeals.  If  it  be  that  the  request  by 
both  parties  for  a  peremptory  instruction  is  to  be  treated  as  a  submis- 
sion of  the  cause  to  the  court,  despite  the  fact  that  the  plaintiffs 
asked  special  instructions  upon  the  effect  of  the  evidence  then,  as 
said  in  Beuttell  v.  Magone,  157  U.  S.  154,  "the  facts  having  been 
tluis  submitted  to  the  court,  w^e  are  limited  in  reviewing  its  action, 
to  a  consideration  of  the  correctness  of  tlie  finding  on  the  law  and 
must  affirm  if  there  be  any  evidence  in  support  thereof."  If,  on  the 
other  hand,  it  be  that,  although  the  plaintiffs  had  requested  a  peremp- 
tory instruction,  the  right  to  go  to  the  jury  was  not  waived  in  view 
of  the  other  requested  instructions,  then  our  inquiry  has  a  wider 
scope,  tliat  is,  extends  to  determining  whether  the  special  instruc- 
tions asked  w- ere  rightly  refused,  either  because  of  their  inherent  un- 
soundness or  because,  in  any  event,  the  evidence  was  not  such  as 
would  have  justified  the  court  in  submitting  the  case  to  the  jury.  It 
was  settled  in  Beuttell  v.  Magons,  157  U.  S.  154,  that  where  both  par- 
ties requested  a  peremptory  instruction  and  do  nothing  more,  they 
thereby  assume  the  facts  to  be  undisputed  and  in  effect  submit  to  the 
trial  judge  the  determination  of  the  inferences  proper  to  be  drawn 
from  them.  But  nothing  in  that  ruling  sustains  the  view  that  a  party 
may  not  request  a  peremptory  instruction,  and  yet,  upon  the  refusal 
of  the  court  to  give  it,  insist  by  appropriate  requests,  upon  the  sub- 
mission of  the  case  to  tlie  jury,  where  the  evidence  is  conflicting  or 
the  inferences  to  be  drawn  from  the  testimony  are  divergent.  To 
hold  the  contrary  would  unduly  extend  the  doctrine  of  Beuttell  v. 
Magone,  by  causing  it  to  embrace  a  case  not  within  the  ruling  in  that 
case  made.  The  distinction  between  a  case  like  the  one  before  us 
and  that  which  was  under  consideration  in  Beuttell  v.  Magone  has 
been  pointed  out  in  several  recent  decisions  of  Circuit  Court  of  Ap- 
peals. It  was  accurately  noted  in  an  opinion  delivered  by  Circuit 
Judge  Severens,  speaking  for  the  Circuit  Court  of  Appeals  for  the 
Sixth  Circuit,  in  Minahan  v.  Grand  Trunk  Ry.  Co.,  138  Fed.  37,  41, 
and  was  also  luclrlly  stated  in  the  concurring  opinion  of  .Shelby, 
Circuit  Judge,  in  McCormack  v.  National  City  Bank  of  Waco,  142 
Fed.  132,  where,  referring  to  Beuttell  v.  Magone,  he  said  (p.  133)  : 


EMPIRE  STATE  CATTLE  CO.  V.  ATCHISON,  &C.  R.  CO.  417 

"A  party  may  believe  that  a  certain  fact  which  is  proved  without 
conflict  or  dispute  entitles  him  to  a  verdict.  But  there  may  be  evi- 
dence of  other,  but  controverted  facts,  which,  if  proved  to  the  satis- 
faction of  the  jury,  entitles  him  to  a  verdict,  regardless  of  the  evi- 
dence on  which  he  relies  in  the  first  place.  It  can  not  be  that  the 
practice  would  not  permit  him  to  ask  for  peremptory  instructions, 
and,  if  the  court  refuses,  to  then  ask  for  instructions  submitting  the 
other  question  to  the  jury.  And  if  he  has  the  right  to  do  this,  no  re- 
quest'for  instructions  that  his  opponent  may  ask  can  deprive  him  of 
the  right.  There  is  nothing  in  Beuttell  v.  Magone,  157  U.  S.  154,  that 
conflicts  with  this  view  when  the  announcement  of  the  court  is 
applied  to  the  facts  of  the  case  as  stated  in  the  opinion. 

"In  New  York  there  are  many  cases  showing  conformity  to  the 
practice  announced  in  Beuttell  v.  Magone,  but  they  clearly  recognize 
the  right  of  a  party  who  has  asked  for  peremptory  instructions  to  go 
to  the  jury  on  controverted  questions  of  fact  if  he  asks  the  court  to 
submit  such  questions  to  the  jury.  Kirts  v.  Peck,  113  N.  Y.  226; 
Slitter  V.  Vanderveer,  122  N.  Y.  652. 

"The  fact  that  each  party  asks  for  a  peremptory  Instruction  to 
find  in  his  favor  does  not  submit  the  issues  of  fact  to  the  court  so  as 
to  deprive  the  party  of  the  right  to  ask  other  instructions,  and  to  ex- 
cept to  the  refusal  to  give  them,  nor  does  it  deprive  him  of  the  right 
to  have  questions  of  fact  submitted  to  the  jury  if  issues  are  joined 
on  which  conflicting  evidence  has  been  offered.  Minahan  v.  G.  T.  W. 
Ry.  Co.,  138  Fed.  37." 

From  this  it  follows  that  the  action  of  the  trial  court  in  giving 
the  peremptory  Instruction  to  return  a  verdict  for  the  railway  com- 
pany can  not  be  sustained  merely  because  of  the  request  made  by 
both  parties  for  a  peremptory  instruction  In  view  of  the  special  re- 
quests asked  on  behalf  of  the  plaintiffs.  The  correctness,  therefore, 
of  the  action  of  the  court  In  giving  the  peremptory  instruction  de- 
pends, not  upon  the  mere  requests  which  were  made  on  that  subject, 
but  upon  whether  the  state  of  the  proof  was  such  as  to  have  author- 
ized the  court.  In  the  exercise  of  a  sound  discretion,  to  decline  to 
submit  the  cause  to  the  jury.^^ 

^'Compare  Thompson  v.  Simpson,  128  N.  Y.  270,  28  N.  E.  627  (1891)  ; 
Westervelt  v.  Phelps,  171  N.  Y.  212,  63  N.  E.  962  (1902)  ;  First  Nat.  Bank 
V.  Hayes,  64  Ohio  St.  100,  59  N.  E.  893  (1901)  ;  Lindquisf  v.  Northwestern 
Port  Huron  Co.,  22  S.  Dak.  298,  117  N.  W.  365  (1908)  ;  Fairbanks  v. 
Nichols,  135  App.  Div.  298,  119  N.  Y.  S.  752  (1909)  ;  Saxton  v.  Perry,  47 
Colo.  263,  107  Pac.  281  (1910);  Mims  v.  Johnson,  8  Ga.  App.  850,  70  S.  E. 
139  (1911)  ;  Bankers  Surety  Co.  V.  Miller,  105  Ark.  697,  150  S.  W.  570  (1912)  ; 
Rice  V.  Bennett,  29  S.  Dak.  341,  137  N.  W.  359  (1912)  ;  Home  Fire  Ins.  Co. 
V.  Wilson,  109  Ark.  324,  159  S.  W.  11 13  (1913)  ;  United  States  v.  Two  Baskets, 
20s  Fed.  2>7  (1913);  Krccck  v.  Supreme  Lodge,  95  Nebr.  428,  145  N.  W. 
859  (1914)  ;  Fairbanks  V.  Austin,  96  Nebr.  137,  147  N.  W.  126  (1914),  with 
Thompson  V.  Brcnnan,  104  Wis.  564,  80  N.  W.  947  (1899)  ;  German  Sav. 
Bank  V.  Bates  Addition  Imp.  Co.,  ill  Iowa  432,  82  N.  W.  1005  (1900)  ; 
Stauff  V.  Bingenheimer,  94  Minn.  309,  102  N.  W.  694  (1905) ;  Wolf  v.  Chicago 
Sign  Printing  Co.,  233  111.  501,  84  N.  E.  614  (1908)  ;  Lonier  v.  Ann  Arbor 
Sav.  Bank,  153  Mich.  253,  116  N.  W.  1088  (1908);  Osterholm  v.  Boston  & 
Montana  Consol.  Min.  Co.,  40  Mont.  508,  107  Pac.  499  (1909)  ;  Bank  of 
Commerce  v.  Broyles,  16  N.  Mex.  414,  120  Pac.  670  (1910)  reversed  on 
27 — Civ.  Proc. 


4l8  TRIAL 

YOUNG,  ADMINISTRATRIX,  v.  CENTRAL  RAILROAD  OF 

NEW  JERSEY. 

Supreme  Court  of  the  United  States,  1914. 
232  U.  S.  602. 

Memorandum  opinion  by  direction  of  the  court.  By  Mr.  Chief 
Justice  White. 

As  administratrix  of  the  estate  of  her  deceased  husband,  the 
plaintiff  in  error  sued  to  recover  for  the  loss  occasioned  by  his  death 
alleged  to  have  resulted  from  the  negligence  of  the  defendant  rail- 
road company.  Over  the  objection  of  the  defendant  the  case  was 
submitted  by  the  trial  court  to  the  jury  and  from  the  judgment  en- 
tered on  the  verdict  rendered  against  the  railroad  company,  error 
was  by  the  company  prosecuted  from  the  Circuit  Court  of  Appeals. 
On  tlie  hearing  that  court  concluding  that  the  evidence  did  not 
justify  the  submission  of  the  case  to  the  jury,  reversed  the  judgment 
and  in  passing  upon  a  motion  made  by  the  railroad  company  in  the 
trial  court,  pursuant  to  the  Pennsylvania  practice  for  judgment  in 
its  favor  no7i  obstante  veredicto^^  it  was  held  that  the  motion  was  well 
taken  and  the  case  was  remanded  to  the  trial  court  not  for  a  new 
trial,  but  with  directions  to  enter  a  judgment  for  the  defendant.  200 
Fed.  359.  As  the  case  as  made  by  the  pleadings  depended  not  merely 
upon  diverse  citizenship,  but  was  expressly  based  on  the  Employers' 
Liability  Act,  error  was  prosecuted  from  this  court. 

We  shall  not  undertake  to  analyze  the  evidence  or  review  the 
grounds  which  led  the  court  below  to  conclude  that  error  was  com- 
mitted in  submitting  the  case  to  the  jury,  because  we  think  it  is 
adequate  to  say  that  after  a  careful  examination  of  the  record  we 
see  no  reasons  for  holding  that  the  court  below  erred  in  so  deciding. 
As  regards,  however,  the  ruling  on  the  motion  for  judgment  non 
obstante  veredicto,  it  is  apparent  in  view  of  the  recent  decision  in 


other  grounds,  234  U.  S.  64,  58  L.  ed.  1214;  King  v.  Cox,  126  Tenn.  553,  151 
S.  \V.  58  (1912);  Virginia-Tennessee  Hardware  Co.  v.  Hodges,  126  Tenn. 
370,  149  S.  W.  1056  (1912)  ;  Rite  v.  Kecnc,  149  Wis.  207,  134  N.  W.  383, 
135  N.  W.  354   (1912);  Fitzsimmons  V.  Richardson,  86  Vt.  229,  84  Atl.  811 

(1912)  ;  Perkins  v.  Board  of  Comrs.  of  Putnam  County,  88  Ohio  St.  495, 
103  N.  E.  377  (1913);  Midland  Valley  v.  Lynn,  38  Okla.  695,  135  Pac.  370 
(1913);  Mann  v.  Franklin  Trust  Co.,  158  App.  l3iv.  491,  143  N.  Y.  S.  660 

(1913)  ;  Chesapeake  &  O.  R.  Co.  v.  McKell,  209  Fed.  514  (1913)  ;  Breakwater 
Co.  V.  Donovan,  218  Fed.  340  (1914). 

^  'Tn  Pennsylvania  under  the  act  of  April  22,  1905,  Pub.  L.  286,  whenever 
on  the  trial  of  any  issue  a  point  requesting  binding  instructions  has  been 
reserved  or  declined,  the  party  presenting  the  point  may  move  to  have  the 
evidence  certified  and  filed  and  for  judgment  non  obstante  veredicto  upon 
the  -whole  record,  \vhereupon  it  shall  be  the  duty  of  the  court  to  enter  such 
judgment  as  should  have  been  entered  upon  that  evidence.  The  act  of  April 
20,  1911,  Pub.  L.  70,  extends  the  practice  to  cases  where  the  jury  have  dis- 

1  agreed.  It  has  been  held  that  if  there  was  a  conflict  of  evidence  on  a 
material  fact  or  any  reason  why  there  should  not  have  been  a  binding  direction 
at  the  trial  there  can  be  no  judcrment  against  the  verdict  entered  under  the 
act.  Dalmas  v.  Kemble,  215  Pa.  410,  64  Atl.  559  (1906)  ;  Duffy  v.  York  Havjn 

UVater  F17'd.vr  Ci^.T^.p  f^-   107.  »i   Atl.  908   (1911)  ;   .Squires  v.  Job^  SO  Pa. 

^Super.  Ct.  289  (1912)  ;  Hanick  \.~Veader_,__  243  Pa.  272,  90  Atl.  146  (1914). 


LYMAN   V.    FIDELITY   &   CASUALTY   CO.  419 

Slocum  V.  Insurance  Company,  228  U.  S.  364,  that  error  was  com- 
mitted.^^ It  follows  tliat  our  duty  is  to  affirm  and  modify;  that  is,  to 
affirm  the  judgment  of  reversal  and  to  modify  by  reversing  so  much 
of  tlie  action  of  the  court  below  as  directed  the  entry  of  a  judg- 
ment in  favor  of  the  defendant.  Conformably  to  this  conclusion  it 
is  ordered  that  the  judgment  of  reversal  be,  and  the  same  is  hereby 
affirmed,  and  that  the  direction  for  entry  of  judgment  in  favor  of 
defendant  be  reversed  and  the  case  is  remanded  to  the  trial  court 
with  directions  to  set  aside  its  judgment  and  grant  a  new  trial. 
Affirmed  and  modified. 


SECTION  8.    ARGUMENTS  OF  COUNSEL. 

HENRY  H.  LYMAN,  STATE  COMMISSIONER  OF  EXCISE 

V.  THE  FIDELITY  AND  CASUALTY  COMPANY  OF 

NEW  YORK,  APPELLANT,  IMPLEADED  WITH 

MARGARET  A.  OUSSANI. 

Supreme  Court  of  New  York,  Appellate  Division,  1901. 
6s  App.  Div.  (N.  Y.)  27. 

Appeal  by  the  defendant,  The  Fidelity  and  Casualty  Company  of 
New  York,  from  a  judgment  of  the  Supreme  Court  in  favor  of  the 
plaintiff,  entered  in  the  office  of  the  clerk  of  the  county  of  New  York 
on  the  4th  day  of  January,  1901,  upon  the  verdict  of  a  jury,  and  also 
from  an  order  entered  in  said  clerk's  offices  on  the  28th  day  of  De- 
cember, 1900,  denying  the  defendant's  motion  for  a  new  trial  made 
upon  the  minutes. 

Per  Curiam  :  This  action  was  brought  against  the  principal 
and  surety  upon  an  excise  bond  to  recover  the  penalty  thereof,  to 
wit,  the  sum  of  $1,600  for  a  violation  of  the  Liquor  Tax  Law  (Laws 
of  1896,  ch.  112,  as  amended)  by  the  principal.  The  principal  and 
surety  answered  separately,  and  the  issues  raised  by  the  answers 
were  somewhat  different.  Upon  the  trial  they  appeared  by  separate 
counsel.  At  the  close  of  the  plaintift"'s  case  a  separate  motion  was 
made  in  behalf  of  each  defendant  to  dismiss  the  complaint,  and  in 

^'In  Slocum  v.  New  York  Life  Ins.  Co.,  228  U.  S.  364,  57  L.  ed.  879 
(1912),  it  was  held  by  a  divided  court  that  the  "right  of  trial  by  jury" 
secured  by  Art.  7  of  the  amendments  to  the  Constitution  of  the  United  States 
did  not  permit  entr_v,  by  a  federal  court,  after  a  verdict  in  favor  of  one  party, 
of  a  judgment  for  the  opposing  party  under  the  Pennsylvania  statute.  Accord : 
Pcdersen  v.  Delaware,  Lackawanna  &  W.  R.  Co.,  229  U.  S.  146,  57  L.  ed. 
1 125  (1913)  ;  Myers  v.  Pittsburgh  Coal  Co.,  233  U.  S.  184,  58  L.  ed.  906  (1913)  ; 
Engemoen  v.  Chicago,  St.  P.  M.  O.  R.  Co.,  210  Fed.  896  (1914)  Alinnesota 
jurisdiction.  In  Bothwell  v.  Boston  El.  R.  Co.,  215  Mass.  407,  102  N.  E.  665 
O913)  it  is  pointed  out  that  the  decision  is  not  binding  on  the  state  courts 
in  determining  what  abridges  trial  by  jury  under  their  own  constitutions, 
and  in  passing  on  the  constitutionality  of  the  Massachusetts  act  of  1909,  ch. 
236  it  is  said,  per  Rugg,  C.  J.,  "We  are  of  opinion  that  the  history  of  our 
practice  as  to  trial  by  jury  both  before  and  since  the  adoption  of  the  Consti- 
tution shows  that  the  trial  by  jury  of  our  Constitution  has  slightly  more 


4-0  TRIAL 

many  respects  upon  difTcrcnt  ji^rouncls.  The  court  decided  to  sub- 
mit but  two  qucslions  of  fact  to  the  jury,  viz.,  whether  hquor  was 
sold  on  the  premises  after  one  o'clock  on  the  nij^hts  of  February  22 
and  27.  1900.  Counsel  for  the  princii)al  then  oi)ened  the  case  to  the 
jury  for  his  client,  at  the  close  of  which  counsel  for  the  surety  com- 
pany demanded  the  right  to  open  the  case  in  behalf  of  his  client  and 
to  state  to  the  jury  his  client's  position  with  reference  to  the  evi- 
dence. The  court  refused  to  permit  such  openinj^  and  appellant's 
counsel  excepted.  At  the  close  of  all  the  evidence  the  principal's 
counsel  summed  up  for  his  client,  and  the  counsel  for  the  surety 
company  asserted  his  right  to  also  sum  up  in  behalf  of  appellant. 
This  was  objected  to  by  plaintiff's  counsel.  The  objection  was  sus- 
tained by  the  court  and  appellant's  counsel  excepted. 

The  liability  of  the  defendants  was  several  and  was  not  neces- 
sarily the  same.  We  think  the  court  had  no  right,  without  appel- 
lant's consent,  to  require  it  to  acquiesce  in  the  opening  and  summing 
up  by  the  counsel  for  the  principal  and  to  deprive  it  of  the  right  and 
privilege  of  presenting  through  its  counsel  its  own  views  of  tlie 
conflicting  evidence  and  questions  upon  w^hicli  the  jury  was  to  pass. 
Where  such  a  case  is  being  defended  in  good  faith,  an  arrangement 
can  ordinarily  be  made  at  the  suggestion  of  the  court,  by  which  one 
counsel  will  discuss  the  question  of  fact  for  all  of  a  class  of  defend- 
ants that  may  be  affected  alike;  and  the  court  has  it  in  its  power, 
by  limiting  time  of  counsel  in  addressing  the  jury,  to  prevent  the 
time  of  tlie  court  and  the  jury  being  unnecessarily  occupied;  but  we 
can  not  assent  to  the  doctrine  that  tlie  court  may  say  arbitrarily  that 
the  attorney  or  counsel  for  a  principal  shall  open  and  sum  up  the  case, 
not  only  for  his  own  client,  but  for  the  surety  w'hom  he  does  not 
represent. 

No  other  question  in  the  case  calls  for  serious  consideration,  but 
these  exceptions  require  that  the  judgment  and  order  should  be  re- 
versed as  to  appellant  and  a  new  trial  granted,  with  costs  to  appellant 
to  abide  the  event.-*^ 

Present — Van  Brunt,  P.  J.,  Patterson,  Ingraham,  ]\IcLaughlin 
and  Laughlin,  JJ. 


flexibility  in  its  adaptation  of  details  to  the  changing  needs  of  society  without 
in  any  degree  impairing  its  essential  character  than  is  ruled  by  the  majority 
of  the  court  in  Slocum  v.  New  York  Life  Ins.  Co.  We  are  constrained  not 
to  adopt  the  reasoning  or  the  conclusion  of  that  opinion  as  correctly  defining 
the  scope  of  the  legislative  power  under  our  Constitution."  See  article  by 
Prof.  E.  R.  Thayer  in  63  Univ.  of  Pa.  L.  Rev.  385.  See  also,  Muench  v. 
Hcinemann,  119  Wis.  441,  96  N.  W.  800  (1903)  ;  Miller  v.  Bank  of  Harvey, 
22  N.  Dak.  538,  134  N.  W.  745  (1912)  ;  Erwin  v.  Shell,  119  Minn.  496,  138 
N.  W.  691  (1912)  ;  Stchlins  v.  Martin,  121  Minn.  154,  140  N.  W.  1029  (1913)  ; 
Brown  V.  U'alla  Walla,  76  Wash.  670,  136  Pac.  1166  (1913)  ;  McVeety  v. 
Harvey  Mercantile  Co.,  24  N.  Dak.  247,  139  N.  W.  586  (1913)  ;  Knight  v. 
Martin,  124  Minn.  191,  144  N.  W.  941  (1914)  ;  Johnston  v.  Nichols,  83  Wash. 
394,  145  Pac.  417  (1915).  Compare  Baltimore  &  Ohio  R,  Co.  v.  Nohil, 
85  Ohio  St.  175,  97  N.  E.  374  (1911);  Jones  v.  Chicago  B.  &  O.  R.  Co., 
(Wvo.)  147  Pac.  508  (1915). 

-"Compare  Sodowsky  v.  McGee,  4  J.  J.  Marsh.  (Ky.)  267  (1830)  ;  In  re 
Gird's  Estate,  lS7  Cal.  534,  108  Pac.  499  (  1910). 

When  a  question  of  fact  is  left  to  the  jury  the  parties  have  a  right  to 
be  heard  by  counsel.    Douglass  v.   Hill,  29  Kans.  527    (1883)  ;   Lee  v.^Lee^^ 


/^ 


HYMAN  &  CO.  V.  IT.  II.  SNYDER  CO.  42I 

LOUIS  P.  HYMAN  &  COMPANY  v.  H.  H.  SNYDER 
COMPANY. 


Court  of  Appeals  of  Kentucky,  1914.  ^ /  y,  —  / 


159  Ky.  354.' 


r-    A-i 


William  Rogers  Clay,  Commissioner:   Another  ground  urged 
for  reversal  is  the  fact  that  the  trial  court  limited  the  time  for  argu- 
ment by  counsel  to  ten  minutes  on  a  side.    Counsel  for  plaintiff 
moved  the  court  to  extend  the  time  beyond  ten  minutes.    He  also  \ 
moved  the  court  to  extend  the  time  to  thirty-five  minutes.  Both  mo-   \ 
tions  w^ere  overruled. 

In  almost  every  jurisdiction  it  is  the  rule  that  the  time  fixed  for 
argument  is  within  the  sound  discretion  of  the  trial  court,  and  a 
case  will  not  be  reversed  unless  it  appears  tliat  this  discretion  has 
been  abused.  What  is  a  reasonable  time  for  argument  depends  upon 
the  circumstances  of  each  particular  case.  In  reviewing  the  discre- 
tion of  the  trial  court,  appellate  courts  will  take  into  consideration 
not  only  the  amount  involved,  the  number  of  witnesses  examined, 
and  the  time  consumed  in  developing  the  testimony,  but  also  the 
simplicity  or  complexity  of  the  instructions  and  of  the  issues  in- 
volved, and  of  the  facts  and  circumstances  out  of  which  those  issues 
arise.  In  this  case  the  amount  in  controversy  was  about  $2,000.  -^ 
Almost  two  days  were  consumed  in  the  trial.  A  number  of  witnesses  ) 
testified  on  each  side.  The  instructions  were  somewhat  long,  and  I 
presented  issues  growing  out  of  plaintiff's  claim  and  defendant's  ' 
counter-claim.  While  we  appreciate  the  necessity  for  the  dispatch 
of  legal  business,  and  therefore  the  further  necessity  for  not  inter- 
fering with  the  sound  discretion  of  the  trial  court  in  limiting  the 
time  for  argument,  yet  that  discretion  should  never  be  exercised  in 
such  a  way  as  to  amount  to  a  practical  denial  of  the  right  of  argu- 
ment. In  this  case  a  time  limit  of  ten  minutes  amounted  to  a  practi- 
cal denial  of  that_right.  For  this  reason  the  judgment  must  be  re- 
versed.^^  "'""" ' 


9Pa.__Stl^(l848)  ;  Garrison  v.  W'llcoxson,  li  Ga.  154  (1852)  ;  Millerd  v 
Thorn,  657NrYr402  (1874);  Hoicck  v.  Cite,  30  Nebr.  113,  46  N.  W.  280 
(1890);  Fareira  v.  Sviith,  3  Misc.  255,  22  N.  Y.  S.  939,  52  N  Y  St  i-^a 
(1893);  Lanon  v  Hibbard,  63  111.  App.  54  (1895);  Wilken  v.  Exterkamp, 
102  Ky.  143,  420  S.  W.  1140,  19  Ky  L.  1132  (1897).  Compare  Heagy  v.  State, 
«S  Ind.  260  (1882);  Gunn  v.  Head,  116  Ga.  1325,  42  S.  E  343  (1902)- 
IVarner  v.  Close,  120  Mo.  App.  211,  96  S.  W.  491  (1906)  ;  Young  v.  McNeill. 
78  S.  Car.  143,  59  S.  E.  986  (1907). 

/  o  ^^  *°  *^^  ^^^^t  of  waiving  arguments  see  Tyre  v.  Morris,  5  Har.  (Del  )  -i 
(1848);  Reardon  y.  Smith,  72  111.  App.  674  (1897);  New  York  &  L.  B. 
R.  Co  V.  Garrity,63N.  J.  L.  50,  42  Atl.  842  (1899)  ;  Hackney  v.  Del.  &  Atl. 
^el  Co.,  69  N.  J.  L.  335,  55  Atl.  252  (1903);  Conrad  v.  Cleveland,  &c., 
R.  Co.,  34  Ind.  App  133,  72  N.  E.  489  (1904)  ;  Henry  v.  Dussell,  71  Nebr. 
691,  99  N.  W  484  0^4)  I  St.  Louis  &  S.  F.  R.  Co.  v.  Johnson,  74  Kans. 
83,  86  Pac.  156  (1906)  ;  Stlber  v.  Public  Service  R.  Co.,  78  N.  J  L  qo  7^ 
Atl.  232  (1909)  ;  Barney  v.  Quaker  Oats  Co.,  85  Vt.  372,  82  Atl.  113  '(1912) 
;;  Fart  of  the  opmion  is  omitted. 

/  J'^^^'^^''^  ^-  ^i^^^^.'r  -1  ^"^-  370  (1854);  Frcligh  V.  Ames,  31  Mo.  2S3 
vi«6o;;    frice  v.  Hannibal,   &c.,  R.   Co.,  35   Mo.  416    (1865);   Baldwin  \. 


4^2  TRIAL 

>OraY  r.  CriESAPEAKI'  &  OTITO  RAILWAY  CO. 
/       Supreme  Court  of  Atpeals  of  \\'kst  Virginia,  1905. 

57  //'•  Ta.  333. 

Action  by  A.  S.  Ray,  administrator  of  Annie  S.  Ray  against  the 
Chesapeake  and  Ohio  Railway  Company.  Judgment  for  plaintiff 
and  defendant  brings  error. -^ 

Brannon,  p.  J.:  Another  alleged  error  Is  based  on  the  reading 
from  the  code  and  books  of  reported  cases  by  counsel  of  the  plaintiff 
in  argument  before  the  jury.  Counsel  distinctly  call  upon  us  to  say 
Avhetlier  it  is  not  error  to  allow  counsel  to  read  law  to  the  jury 
against  obicction.  The  subject  has  been  much  discussed  in  Bloyd  v. 
Pollock,  27  W.  Va.  75  ;  Ric'kcffs  v.  C.  and  O.  Ry.  Co.,  33  W.  Va.  433 ; 
Gregory  v.  O.  R.  R.  Co.,  37  W.  Va.  606.  As  stated  in  the  Gregory 

I  case  reading  law  from  law  books  to  the  jury  is  very  dangerous  and 

I  should  not  be  indulged.  So  many  books  and  decisions  are  read,  of 
such  diverse  statement  and  conclusion,  some  good  law,  some  bad, 
some  not  pertinent  to  the  case,  and  misapplied  to  the  facts,  and  at 
the  close  of  the  argument  the  law  of  the  case  is  "confusion  worse 

iconfounded."    How  can  the  most  intelligent  jury  solve  the  riddle? 

/The  safer  course  is  not  to  read  law  to  the  jury.   As  in  this  case  it 

'  may  entail  reversal.  The  court  has  full  power  to  refuse  to  allow  it. 
It  consumes  time  and  lengthens  trials.  Attorneys  should  argue  and 
apply  the  facts  and  get  the  law  by  instructions  from  the  court,  if 

'  desired.  If  it  is  true  that  tlie  jury  is  tlie  judge  of  evidence  and  the 
court  of  tlie  law,  then  it  follows  that  law  should  not  be  read  to  the 
jury ;  for  if  the  jury  is  not  the  judge  of  tlie  law,  why  read  law  books 
to  it  ?  The  courts  of  the  United  States  do  not  allow  it.  In  most  of  the 

I  states  it  is  not  allowed.  Sidlivan  v.  Royer,  y2  Cal.  248,  i  Am.  Stat.  51 
and  note ;  Phoenix  v.  Allen,  11  Mich.  501 ;  Hudson  v.  Hudson,  90  Ga. 
581.  "The  practice  of  counsel  reading  from  law  books  when  arguing 
to  the  jury  is  exceedingly  dangerous  and  should  not  be  indulged  in." 
Steffenson  v.  Chicago,  51  N.  W.  610.  "The  court  may,  in  civil  cases, 
refuse  to  permit  counsel  to  read  law  to  a  jury,  and  this  can  not  be 
assigned  as  error.  It  is  the  province  of  the  court,  in  such  cases  to 
interpret  the  law  for  the  jury,  and  not  for  the  jury  to  interpret  the 
law  for  themselves."  Sprague  v.  Craig,  51  111.  288.-*   When,  how- 


Bitrrows,  95  Ind.  81  (1883)  ;  Commonwealth  v.  Bnccicri.  1^3  Pa.^  53S,  26 
Atl.  228  (1893)  ;  People's  Casualty  Ltaim  Adj.  Co.  v.  JJatrow^  172  111.  62, 
49  N.  E.  1005  (1898)  seven  minutes  allowed  on  each  side;  Christiansen  V. 
Graver  Tank  Works,  223  III.  142,  79  N.  E.  97  ( 1906)  ;  Mitchell  v.  State, 
86  Ark  486,  in  S.  W.  806  (1908)  ;  Mitchell  v.  Robinson,  (Tex.  Civ.  App.) 
162  S.  W.  443  (1913).  Compare  Nesbitt  V.  Walters,  38  Tex.  576  (1873); 
Senior  V.  Brogan,  66  Miss.  178,  6  So.  649  (1888);  Zweitiisch  v.  Lowy,  57 
111.  App.  106  (1804)  ;  Neumann  v.  St.  Louis  Transit  Co.,  109  Mo.  App.  221,  84 
S.  W.  1S9  (1904). 

^Part  only  of  the  opinion  is  printed. 

^Whilc  counsel  may  express  their  own  views  of  the  lav/,  it  is,  according 
to  some  authorities,  error  to  permit  them  to  read  extracts  from  hooks  as  the 
law  of  the  case.  Johnson  v.  Culver,  116  Ind.  278,  19  N.  E.  129  (1888)  ;  Tnllcr 


RAY   V.    CHESAPEAKE    &   O.    R.    CO.  423 

ever,  law  has  been  read,  it  becomes  a  question  whether  it  should 
cause  reversal.  If  the  law  is  bad,  or  not  pertinent  to  the  case,  unless 
instructions  after  such  argument  propound  the  sound  law  on  the  very 
points  to  which  the  bad  law  relates,  it  will  call  for  reversal ;  but  if 
so^ured,  it  will  not.  If  good  and  pertinent  law,  it  will  not  call  for 
reversal.  The  law  read  in  this  case  was  statute  and  decided  law 
"pertinent  and  sound,  except  as  stated  below,  and  we  see  no  cause  for 
reversal  for  tliat  cause  under  cases  above  cited.  I  will  say,  however, 
that  the  reading  from  Cleveland  v.  Corrigan,  46  Ohio  St.  283,  3  L.  R. 
A.  387,  was  bad,  because  it  states  three  clashing  lines  of  authorities, 
as  to  the  care  required  of  children,  leaving  it  to  the  jury  to  say  which  ', 
was  the  correct  one.  Perhaps  plaintiff's  instruction  No.  i  cured  it ;  / 
but  it  should  not  have  been  read.  L_ 

But  this  does  not  end  the  trouble.   The  attorney  read  long,  con- 
fusing recitals  of  facts   from  decided  cases.    For  what  purpose? 
From  Omaha  v.  Morgan,  a  long  recital  of  the  facts  of  that  case — \  n^-fi.. 
notliing  but  a  recital  of  facts.   What  had  they  to  do  with  this  case<.,^t/ 
except  to  confuse  the  jury?   Was  it  intended  to  similarize  the  two/,^-/^ 
cases?    This  was  not  admissible.    It  is  purely  evidentiary  matter,  W ''^ 
which  everybody  concedes  to  be  not  allowable,  because  a  jury  must  ^'^iff, 
try  a  case  by,  and  only  by  its  own  evidence.   The  facts  had  little  or 
no  similarity  with  the  case  before  the  jury.    So  far  as  they  had,  it 
was  improper;  if  they  had  not,  then  it  was  improper  for  that  case 
to  touch  this  case.   Then,  there  is  tlie  long  detail  of  facts  read  from 
Swift  V.  Staten  Island  R.  T.  R.  Co.,  25  N.  E.  378,  touching  injury  to  a 
little  girl  of  fifteen  while  crossing  a  railroad  track,  injured  while 
watching  one  train  by  another  approaching  from  another  direction. 
The  cases  being  nearly  akin  in  facts  and  character,  the  object  was  to 
lend  strength  to  the  plaintiff's  case  by  using  that  case  as  a  precedent ; 
in  other  words,  to  try  tliis  case  by  that  case.   It  also  contained  much 
argumentation  to  prove  the  liability  on  the  facts  of  that  case — mere 
facts — and  thence  deduced  liability  on  the  defendant  in  this  case. 


V.  Talbot,  23  111.  357,  76  Am.  Dec.  695  (i860)  ;  Phoenix  Ins.  Co.  v.  Allen,  11 
Mich.  501,  83  Am.  Dec.  756  (1863)  ;  Baldwin's  Appeal,  44  Conn.  37  (1876)  ; 
Reich  V.  New  York,  12  Daly  (N.  Y.)  72  (1883)  ;  Gricbel  v.  Rochester  P.  Co., 
24  App.  Div.  288,  48  N.  Y.  S.  505  (1897)  ;  Marriage  v.  Electric  Coal  Co.,  176 
111.  App.  457  (1912).  Others  hold  that  the  matter  lies  in  the  discretion  of  the 
court.  May  field  v.  Cotton,  yj  Tex.  229  (1872);  People  v.  Anderson,  44  Cal. 
65  (1872)  ;  Curtis  v.  State,  36  Ark.  284  (1880)  ;  Gilberson  v.  Miller  Min.  & 
Smelt.  Co.,  4  Utah  46,  5  Pac.  699  (1885)  ;  Baltimore  &  O.  R.  Co.  v.  Kean, 
65  Md.  394,  5  Atl.  325  (1886)  ;  Williams  v.  Brooklyn  El.  R.  Co.,  126  N.  Y.  96, 
26  N.  E.  1048  (1891)  ;  Stratton  v.  Dole,  45  Nebr.  472,  63  N.  W.  875  (1895)  ; 
Commonwealth  v^  Renso,  2ibJP?i.  147.  6.=;  Atl.  30  (1906)  ;  Mahoney  v.  Dixon, 
'34  Mont.  454,  '&7  Pac.  452~(T9o6).  And,  the  court's  refusal  of  such  permission 
will  not  be  disturbed.  Richmond's  Appeal,  59  Conn.  226,  22  Atl.  82  (1890)  ; 
Newport  News,  &c.,  R.  Co.  v.  Bradford,  100  Va.  231,  40  S.  E.  900  (1902)  ; 
Stone  v.  Comm.,  181  Alass.  438,  63  N.  E.  1074  (1902)  ;  Meyer  v.  Foster,  147 
Cal.  166,  81  Pac.  402  (1905)  ;  Ryan  v.  Lambert,  49  Wash.  649,  96  Pac.  232 
(1908)  ;  Sullivan  v.  Capital  Trac.  Co.,  34  App.  Cas.  (D.  C.)  358  (1910).  In  Good 
V.  Mylin,  i-^  Pa.  St.  538  £1850)  it  was  held  proper  to  refuse  permission  to 
counsel  to  read  to  the  jury  the  opinion  of  the  Supreme  Court  reversing:  a 
former  judgment  in  the  same  cause.  Accord:  Bell  v.  McMaster,  29  Hini 
(N.  Y.)  272  (1883)  ;  Clark  v.  Iowa  Cent.  R.  Co.,  162  Iowa  630,  144  N.  W. 
332  (1913)- 


.JJ4  TRIAL 

It  is  not  allowable  to  tluis  introduce  evidence  and  facts  of  another 
case,  because  it  lends  its  impress,  inllucnces,  or  may  influence,  the 
iury  trying  the  case  in  hand.  It  is  matter  foreign  and  extraneous  to 
the' case.  See  Richrtts  v.  CJics.  and  O.  Ry.,  33  W.  Va.  433,  citing 
I  Thompson  on  Trials,  sec.  947,  saying  that  counsel  had  no  right 
to  introduce  any  evidentiary  matter  not  in  evidence,  and  can  not 
under  pretence  of  reading  law  books  read  passages  which  bear  on 
, <luest!ons  of  facts  before  the  jury,-^  It  is  not  allowable  even  to.read 
the  facts  of  the  same  case  as  contained  in  a  rc[)ort  of  a  decision 
upon  it  in  the  Supreme  Court.  State  v.  IVIilt,  5  Jones  L.  (N.  Car.) 
224,  y2  Am.  Dec.  533. 
Judgment  reversed. 


/ 


BOONE  V.  HOLDER. 

Supreme  Court  of  Arkansas,  1908. 
87  Ark.  461. 


Hart,  J. :  B.  E.  Boone  brought  this  suit  against  Albert  Holder 
for  alienation  of  the  affections  of  his  wife,  Alice  Boone.  There  was 
a  jury  trial,  and  a  verdict  for  the  defendant,  and  plaintiff  has  ap- 
pealed.-^ 

It  is  unnecessary  to  abstract  the  testimony,  except  to  state  that 
it  was  sufficient  to  sustain  the  allegations  of  the  complaint. 

Xo  objections  were  made  to  the  instructions  of  the  court.  The 
sole  ground  relied  upon  for  reversal  is  on  account  of  alleged  im- 
proper argument  of  counsel.  In  his  motion  for  a  new  trial  the 
plaintiff,  Boone,  states  that  R.  J.  White,  counsel  for  the  defendant 
was,  over  his  objections,  permitted  to  argue  to  the  jury  "that  if  the 
mouth  of  the  plaintiff"'s  wife  was  not  closed  by  the  iron  laws  she 
would  swear  that  Holder,  the  defendant,  never  had  sexual  inter- 
course with  her;  that  her  husband,  the  plaintiff,  had  mistreated  her; 
that  he  had  neglected  her  and  had  been  too  intimate  with  one  of  the 
witnesses  for  the  plaintiff — Doshy  Holder." 

It  is  a  well  established  rule  that  it  is  error,  sufficient  to  reverse  a 
judgment,  for  the  court  to  suffer  counsel,  against  objection,  to  state 

='In  Williams  v.  Brooklyn  El.  R.  Co.,  126  N.  Y.  96,  26  N.  E.  1048  (i8gi), 
it  is  said:  "If,  however,  tlie  reading  from  a  decision  was  to  bring  before  the 
jur>'  the  facts  of  the  case  decided,  or  the  amount  of  the  verdict,  or  the  com- 
ments of  the  judge  on  the  facts  to  influence  the  jury  in  deciding  upon  the  facts 
in  the  case  on  trial,  or  in  fixing  the  amount  of  damages,  then  clearly  the  read- 
ing ouglit  not  to  be  permitted."  Accord:  Porter  v.  Cohen,  60  Ind.  338  (1878)  ; 
Dempscy  v.  State,  3  Tex.  App.  429,  30  Am.  Rep.  148  (1878)  ;  Evansville  v. 
Milter,  86  Ind.  414  (1882)  ;  Williams  v.  State,  83  Ala.  68,  3  So.  743  (1887)  ; 
Mullen  V.  Rcinig,  72  Wis.  388,  30  N.  W.  861  (1888)  ;  Laughlin  v.  Street  R.  Co., 
80  Mich.  154,  44  N.  W.  1049  (1890)  ;  East  Tenn.,  &e.,  R.  Co.  v.  King,  88  Ga. 
443,  14  S.  E.  708  (1891)  ;  Jackson  v.  Pool,  91  Tenn.  448,  19  S.  W.  324  (1892). 
Contra:  Harrington  v.  Wadeshoro,  153  N.  Car.  437,  69  S.  E.  399  (1910),  by 
statute. 

See  also  Elliott  v.  New  York,  N.  H.  &  IE  R.  Co.,  83  Conn.  320,  76  Atl. 
298  (1910). 

**Part  of  the  opinion  is  omitted. 


UNITED    STATES    CEMENT    CO.    V.    COOPER  425 

facts  pertinent  to  the  issue  and  not  in  evidence.  12  A.  &  E.  Encyc. 
"oi  PI.  &  Pr.,  p.  ^2^ ;  Thompson  on  Trials,  963.  Although  not 
expressly  decided,  the  language  used  by  the  court  in  the  case  of 
Little  Rock  Ry.  and  Electric  Co.  v.  Goerner,  80  Ark.  158,  expresses 
the  same  view.  The  reason  for  the  rule  is  that  a  party  can  not  be 
permitted  to  present  his  evidence  in  the  form  of  argument  of  his 
counsel  to  the  jary,  but  unust  confine  himself  to  the  legal  method  of 
establishing  his  cause  of  action  or  defense  thereto. 

The  remarks  complained  of  being  a  statement  of  matters  material 
to  the  issues,  the  court  should  have  admonished  the  attorney  that 
the  statement  was  improper,  and  should  have  told  the  jury  to  dis- 
regard it.  Having  failed  to  do  this,  it  was  prejudicial  error  to 
permit  counsel  to  travel  out  of  the  record  and  to  base  his  argument 
on  facts  not  appearing  therein.  Little  Rock  and  Ft.  Smith  Ry.  Co.  v. 
Cavanesse,  48  Ark.  106 ;  Fort  v.  State,  74  Ark.  210.-^ 

For  error  in  counsel  for  defendant  stating  to  the  jury  prejudicial 
facts  which  were  not  in  evidence,  the  judgment  must  be  reversed 
and  the  cause  remanded  for  a  new  trial. 


.^UNITED  STATES  CEMENT  COMPANY  v.  COOPER. 

Supreme  Court  of  Indiana,  1909. 

172  Ind.  599. 

Action  by  Spencer  E.  Cooper,  by  his  next  friend,  against  the 
United  States  Cement  Company,  From  a  judgment  on  a  verdict  for 
pjlaintiff  for  $500  defendant  appeals. ^^ 

Hadley,  J. :  Appellee's  counsel,  in  his  closing  argument  to  the 
jury,  used  the  following  langauge :  "The  plaintiff  is  not  rich.  He 
w-as  not  born  with  a  silver  spoon  in  his  mouth.  He  can  not  sit  in  a 
richly  adorned  chair  with  silver  and  gold  piled  about  his  plate.    He 

^' Among  the  many  cases  in  accord  see:  Mitchnm  v.  State,  ll  Ga.  615 
(1852)  ;  Tucker  v.  Heimikcr,  41  N.  H.  317  (i860)  ;  State  v.  Lee,  66  Mo.  163 
(1877)  ;  Union  Cent.  Life  Ins.  Co.  v.  Chcever,  36  Ohio  St.  201,  38  Am.  Rep 
573  (1880)  ;  Williams  v.  Brooklyn  El.  R.  Co.,  126  N.  Y.  96,  26  N.  E.  1048 
(1891)  ;  Indianapolis  Journal  Newspaper  Co.  v.  Pugh,  6  Ind  App  510  ^3 
N.  E.  991  (1892)  ;  Roso  v.  Detroit,  96  Mich.  447,  56  N.  W.  11  (1893)  ;  Union 
Pac.  RCo.v.  Field,  137  Fed.  14,  69  C.  C.  A.  536  (1905)  ;  Fjsliei^.  FemisyLdmtia 
.LiUM^-  Super.  Ct.JSQQ-UOiXZ)  ;  Berger  v.  Standard  Oil  Co.,  31  Kv.  L.  613,  103 
S.  W.  245  (1907)  ;  Angelas  v.  Pelias,  150  III.  App.  527  (1909)  ;  Bliss  v.  IP'ol- 
cott,  40  Mont.  491,  107  Pac.  423  (1910)  ;  CHisens  Mut.  Fire  Ins.  Co.  V.  Cono- 
wtngo  Bridge  Co.,  116  Md.  422,  82  Atl.  372  (1911)  ;  IVorden  Lumber,  &c.  Co. 
v.  Minneapolis,  St.  P.,  &c.  R.  Co.,  168  Mich.  74,  133  N.  W.  949  (1911)-  St 
L,  I  M  &  S  R.  Co.  V.  Earle,  103  Ark.  356,  146  S.  W.  520  (1912)  ;  Chicago, 
St.  L.  6-  N.  O.  R.  Co.  v.  Rozvell,  151  Ky.  313,  i^i  S.  W.  9S0  (1912)  ;  Lucas 
V.  Peoria  &  E.  R.  Co.,  171  III.  App.  i  (1912)  ;  Spahn  v.  Peoples  R.  Co.,  (Del.), 
02  Atl.  727  (1912)  ;  Nuckols  V.  Andrews,  6  Ala.  App.  275,  60  So.  592  (1912)  • 
Herricks  v.  Chicago  &  E.  I.  R.  Co.,  2S7  HI-  264,  100  N.  E.  897  (1913)  •  Buck- 
ley V.  Bo.'iton  El.  R.  Co.,  215  Mass.  50,  102  N.  E.  75  (1913)  ;  Fadden  v.  Mc- 
Kmney,  87  Vt.  316,  8g  Atl.  351  (1914). 

^Only  so  much  of  the  opinion  as  relates  to  the  argument  of  counsel  is 
given. 


426  TKIAL 

can  not  riJc  in  fine  chariots.  lie  docs  not  have  millions,  like  the 
defendant,  made  from  the  labor  of  other  men."  The  appellant,  in 
the  presence  of  the  jury,  objected  to  the  laiij:[ua<:^e  at  the  time,  and 
moved  that  the  court  withdraw  the  same  from  the  jury,  which  mo- 
tion was  overruled.  Api>ellant  thereupon  moved  that  the  court  with- 
draw the  case  from  the  jury  and  set  aside  the  submission,  w'hich 
motion  was  also  overruled,  and  an  exception  properly  reserved.  The 
language  complained  of  was  not  directed  to  any  issue  or  legitimate 
evidence  in  the  case,  and  w'as  of  a  prejudicial  character.  There  could 
have  been  no  justilication  for  its  use,  and  it  can  not  now  be  said  that 
it  did  not  affect  the  result. 

Judgment  reversed  and  cause  remanded,  with  instructions  to 
sustain  appellant's  motion  for  a  new  trial,  and  for  further  proceed- 
ings not  inconsistent  herewith.-'' 


SECTION  g.     CHARGE  OF  THE  COURT. 

STUMPS  V.  KELLEY. 
'  Supreme  Court  of  Illinois,  1859. 

22  ///.  140. 

Action  on  the  case  by  Susanna  Kelley  by  her  next  friend,  appellee, 
against  Barbara  Stumps,  appellant,  for  damages  resulting  from  in- 
juries inflicted  by  a  vicious  cow  belonging  to  the  appellant.    At  the 

*^In  addressing  the  jur>'  appeals  to  passion  and  prejudice  are  not  allow- 
able. Galveston,  H.  &  S.  A.  R.  Co.  v.  Cooper,  70  Tex.  67,  8  S.  \V.  68  (1888)  ; 
Wagner  V.  Hazle  Township,  2i5j^:3^2iQ^64^AtI.  405  (1906)  ;  Holmes  v.  Loud, 
149  Mich74io,  112  JN.  W.  1 109  (1907)  ;  Seaboard  Air  Line  R.  Co.  v.  Smith,  53 
Fla.  375,  43  So.  235  (1907)  ;  Saxtonv.  Pittsburgh  R.  Co,,_2iq  Pa._492,  68  Atl. 
1022  (1908)  ;  Hyman  v.  Kirt,  153  Atich.  113,  116  N.  W.  536  (190S)  ;  llhite  v. 
Chicago  &  N.  W.  R.  Co.,  145  Iowa  408,  124  N.  W.  309  (1910);  Jones  v. 
Tucker,  26  Del.  422,  84  Atl.  4,  1012  (1912) ;  Haake  v.  G.  H.  Dnlle  Mill.  Co., 
168  'Sio.  App.  177,  153  S.  W.  74  (1912)  ;  Moore  v.  Springfield,  &c.  Trac.  Co., 
180  III.  App.  623  (1913)  ;  Appel  V.  Chicago  City  R.  Co.,  259  III.  561,  102  N.  E. 
1021  (1913)  ;  Almon  v.  Chicago  &  N.  W.  R.  Co.,  163  Iowa  449,  144  N.  W. 
997  (1914);  Becker  v.  Phila.  Rapid  Transit  (7<?..^21i_P?  1^  9^  Atl.  86l 
(1914);  Morrison  v.  Carpenter,  179  Mich.  207,  146  N.  W.  100(1914).  But 
appeals  to  s\Tnpathy  based  on  the  evidence  are  not  ordinarily  improper. 
Doii'dell  V.  Wilcox,  64  Iowa  721,  21  N.  W.  147  (1884)  ;  Gulf  C.  &  S.  F.  R. 
Co.  V.  Norflcet,  78  Tex.  321,  14  S.  W.  703  (1890);  LIenry_y.  HnfJ,  143  Pa. 
St.  ^^  22  Atl  1046 ,(1801):  Shute  V.  Exeter  Mfg.  Co.,  69  rs^  R.  210,  46  Atl. 
391  (I'^^J?)  ;  Atlantic  Coast  Line  R.  Co.  V.  Jones,  132  Ga.  189,  63  S.  E. 
834  (looS)  ;  Eaton  v.  Hope,  177  Mich.  411,  143  N.  W.  241  (1913).  In  Ferguson 
V.  Moore,  98  Tenn.  342,  39  S.  \V.  341  (1897),  it  is  said,  per  Wilkes,  J.: 
"Tears  have  always  been  considered  legitimate  arguments  before  a  jury,  and 
■while  the  question  has_  never  arisen  out  of  any  such  behavior  in  this  court, 
we  know  of  no  rule  or  jurisdiction  in  the  court  below  to  check  them.  It  would 
appear  to  be  one  of  the  natural  rights  of  counsel,  which  no  court  or  consti- 
tution could  take  away.  It  is  certainly,  if  no  more,  a  matter  of  the  highest 
personal  privilege.    Indeed,  if  counsel  has  them  at  command,  it  may  be  seri- 


STUMPS  V.    KELLEY  427 

trial  there  was  a  verdict  for  the  plaintiff  for  $500.   Defendant  ap- 
pealed.^° 

Walker,  J. :  Courts  are  created  and  established  for  the  admin- 
istration of  justice,  and  all  legal  and  proper  means  should  be  em-  % 
ployed  for  the  attainment  of  that  end.    And  how  can  it  be  error  for 
the  court  to  instruct  the  jury  as  to  the  law  of  the  case,  whether  \ 
asked  to  do  so  or  not,  we  are  at  loss  to  conjecture.    We  have  been 
referred  to  no  authority  that  so  holds,  and  we  can  not  imagine  that 
such  can  exist.   One  of  the  very  objects  of  having  a  judge  is  to  in- 
struct the  jury  on  the  law  applicable  to  the  case.  Instead  of  its  being 
error  for  the  court  on  its  own  motion  to  instruct,  where  it  seems 
to  be  required  by  the  justice  of  the  case,  it  is  rather  the  duty  of  the 
judge   to   give   such   instructions.    The   instructions   given  by   the 
court  in  this  case,  without  being  requested  by  either  party,  we  think 
embraced  the  law  as  applicable  to  the  case,  and  it  is  not  denied  that  ) 
it  does.   And  we  have  no  hesitancy  in  saying  that  so  far  from  its  / 
being  error,  that  tlie  court  acted  in  strict  conformity  wuth  the  duty/ 
imposed  by  the  oath  of  the  judge,  and  the  requirements  of  the  law.^i 

Affirmed. 


ously  questioned  whether  it  is  not  his  professional  duty  to  shed  them  when- 
ever proper  occasion  arises,  and  the  trial  judge  would  not  feel  constrained 
to  interfere  unless  they  were  indulged  in  to  such  excess  as  to  impede  or  delay 
the  business  of  the  court." 

'"The  statement  of  facts  is  abridged  from  the  opinion  of  the  court,  only 
a  part  of  which  is  printed. 

'^The  court  may  of  its  own  motion  instruct  the  jury  upon  the  questions 
of  law  involved.  Clarke  v.  Baker,  7  J.  J.  Marsh.  (Ky.)  194  (1832)  ;  Blunt  v. 
Commonxijealth,  4  Leigh  (Va.)  689,  26  Am.  Dec.  341  (1843)  ;  Thistle  v.  Frost- 
hurgh  Coal  Co.,  10  Md.  129  (1856)  ;  State  v.  Burns,  8  Xev.  251  (1873)  ;  Mc- 
Lellan  v.  Wheeler,  70  Maine  285  (1879)  ;  Parker  v.  Georgia  Pac.  R.  Co.,  83 
Ga.  539,  10  S.  E.  2T,S  (1889);  Roscnkovits  v.  United  Rys.  &  Electric  Co., 
108  Md.  306,  70  Atl.  108  (1908).  Contra  by  statute:  Archer  v.  Sinclair,  49 
Miss.  343  (1873);  Wat  kins  v.  State~,Zo  'M^iss'.'^223"XiSB2).  It  has  been  held 
that  the  court  is  not  bound  to  give  any  instructions  unless  by  the  request  of 
the  parties.  Reasoner  v.  Brown,  19  Ark.  234  (1857)  ;  Haiipt  v.  Pohlmann,  I 
Robt.  (N.  Y.)  121  (1863);  McLellan  v.  Wheeler,  70  Maine  285  (1879); 
Stuckey  v.  Fritsche,  77  Wis.  329,  46  N.  W.  SQ  (1890)  ;  Osgood  v.  Skinner,  211 
111.  229,  71  N.  E.  869  (1904)  ;  Morgan  v.  ]\IiilJiall,  214  Mo.  451,  114  S.  \V.  4 
(1908).  Elsewhere  it  is  held  mandatory  upon  the  court  to  charge  with  reason- 
able fulness  upon  all  the  material  issues  presented,  even  in  the  absence  of 
requests.  Capital  City  Brick  &  Pipe  Co.  v.  Bes  Moines,  136  Iowa  243,  113 
N.  W.  83s  (1907);  Douglass  V.  Geiler,  32  Kans.  499,  4  Pac.  1039  (1884)  ; 
Barton  v.  Cray,  57  jMich.  622,  24  N.  W.  638  (1885);  Rowell  V.  Vershire,  62 
Vt.  405,  19  Atl.  990,  8  L.  R.  A.  708  (1890)  ;  Chattanooga  &  D.  R.  Co.  v.  Foils, 
113  Ga.  361,  38  S.  E.  819  (1901)  ;  Falkner  v.  Pilcher,  137  N.  Car.  449,  49  S.  E. 
945  (1905),  and  see  Ball  v.  Intcrtirban  St.  R.  Co.,  49  Misc.  129,  96  N.  Y.  S. 
739  (1905)-  But  generally,  where  the  :harge  to  the  jury  is  correct,  as  far  as 
it  goes,  failure  to  give  further  or  more  specific  instructions  upon  a  particular 
point  will  not  be  held  error  in  the  absence  of  any  request  therefor.  Pcnnock 
V.  Dialogue,  2  Pet.  (U.  S.)  I,  7  L.  ed.  327  (1829)  :  Cnober  v.  Altimus.  62  Pa.  St 
486  (1869)  ;  Webber  v.  Djinn,  71  Maine  331  (1880)  ;  Sudlozu  v.  Warshing,  108 
N.  Y.  520,  15  N.  E.  532  ( 1888)  ;  Humes  v.  United  States,  170  U.  S.  210,  42  L.  ed. 
loii,  18  Sup.  Ct.  602  (1897)  ;  Camden  &  A.  R.  Co.  v.  Williams,  61  N.  J.  L. 
646,  40  Atl.  634  (1898)  ;  Na.^hville  &  St.  L.  R.  Co.  v.  Heikens,  112  Tenn.  378, 
79  S.  W.  1038  (1903);  Miller  v.  Shumway,  135  Mich.  654,  98  N.  W.  385 
(1904);  Price  V.  Huddleston,  167  Ind.  536  (1906);  Bailey  v.  Grand  Forks 


INDIANA  RATTAVAY  CO^IPANV  r.  IMAURER. 

SUPKEMli   CoL'KT   (M"   ImMANA,    1902. 
160  Iiid.  25. 

Action  I)}'  Joliii  Maurcr  against  the  Indiana  Railway  Company. 
From  a  judgment  for  plaintiff,  defendant  appeals.^^ 

Hadlky,  C.  J.:  Suit  by  appellee  to  recover  damages  for  injuries 
received  through  the  alleged  negligence  of  appellant  in  operating  its 
street  railroad  in  the  city  of  South  Bend.  Upon  issues  joined  by  the 
general  denial,  the  jury  returned  its  verdict  for  appellee  for  ^400, 
and  therewith  returned  their  answers  to  divers  interrogatories  pro- 
pounded by  the  court. 

It  is  averred  in  the  complaint  tliat  the  plaintiff  is  old,  infirm,  and 
possessed  of  but  one  leg ;  that  in  alighting  from  the  street  car  it  was 
necessary  for  him  to  use  both  hands  in  supporting  himself ;  and 
that  while  reaching  for  and  attempting  to  remove  from  the  car  a  grip 
bag  which  he  had,  and  before  he  had  time  to  remove  it,  the  defendant 
suddenly  and  negligently  started  the  car,  thereby  causing  the  plain- 
tiff to  be  thrown  down  and  dragged  by  the  car,  whereby  he  was  in- 
jured, etc. 

The  second  instruction  gi\en  to  the  jury  is  complained  of.  It  is 
in  substance  as  follows:  A  higher  degree  of  care  is  required  of  a 
street  car  company  towards  passengers  who  are  aged  and  infirm 
than  towards  the  active  and  able-bodied,  and  it  is  the  duty  of  such 
company  to  assist  such  infirm  passengers — if  in  need  of  assistance— 
in  alighting  from  its  car  when  they  are  passengers  thereon;  and  if 
it  was  shown  that  the  plaintiff  was  a  passenger  on  the  defendant's 
car,  and  was  infirm,  and  a  cripple,  and  in  need  of  assistance  in  alight- 
ing from  the  car,  and  the  defendant  knew  such  facts,  and  the 
defendant  having  stopped  the  car  to  allow  the  plaintiff  to  alight, 
failed  and  neglected  to  assist  him,  and  started  the  car  forward  be- 


Lumber  Co.,  107  Minn.  192,  119  N.  W.  786  (1909)  ;  Grealish  v.  Brooklyn  C. 
&  S.  R.  Co.,  130  App.  Div.  238,  114  N.  Y.  S.  582  (1909)  ;  Kahn  v.  Bennett,  223 
Pa.  36,  72  Atl.  342  (1909). 

'  A  misdli-ection  as  lo  the  law  which  injuriously  afTects  one  of  the  parties 
is  error  and  ground  for  reversal.  Carnes  v.  Piatt,  6  Robt.  (N.  Y.)  270 
(1868)  ;  Radcliffe  v.  H  oily  field,  2i6  Pa.  367  65_Atl.  ^89  (1907).  But  error 
will  be  regarded  as  harmless  if  the  riglits  oi  the  appeHant  have  not  been  preju- 
diced thereby.  38  Cyc.  1809  and  cases  cited ;  San  Juan  v.  St.  John's  Cas  Co., 
195  U.  S.  510,  49  L.  ed.  299,  25  Sup.  Ct.  108  (1904)  ;  F.nstice  v.  Cottrtright,  61 
N.  J.  L.  653,  40  Atl.  676  (1898).  Where,  however,  the  instructions  are  cor- 
rect in  themselves,  a  reviewing  court  will  not  reverse  because  wrong  reasons 
were  given  for  them,  unless  it  clearly  appears  that  the  jury  were  misled  or 
injustice  has  resulted  in  consequence  of  such  instructions.  Dale  v.  Arnold,  2 
Bibb  (Ky.)  605  (1810)  ;  liaslcy  v.  Craddock,  4  Rand.  (Va.)  423  (1826)  ;  Car- 
penter V.  Pierce,  13  X.  H.  403  (1843);  Budd  v.  Brooke,  3  Gill  (Md.)  198, 
43  Am.  Dec.  321  (1845)  ;  i2ii^^UY.J2n:*jJiPx_St^Ji7  (^8)  ;  Blodgctt  v. 
Berlin  Mills  Co.,  52  N.  H.  215  ( 1872)  ;  Marion  'vTState,  20  Nebr.  233,  29 
N.  W.  911,  57  Am.  Rep.  825  (1886). 

*^Part  of  the  opinion  of  the  court  is  omitted. 


INDIANA    RAILWAY    CO.    V.    MAURER  429 

fore  the  plaintiff  had  fully  alighted,  thereby  throwing  and  injuring 
the  plaintiff,  the  defendant  should  be  found  guilty  of  negligence. 

Instructions  to  the  jury  must  be  confined  to  the  issues.  ^  It  is^ 
fundamental  that  a  plaintiff  can  recover  only  upon  the  complaint  hes 
makes ;  that  is,  he  can  not  complain  of  one  thing,  and  recover  for(, 
another.  Hence  in  directing  the  jury  as  to  the  rules  of  law  that  shall 
guide  them  in  reaching  their  verdict,  the  court  must  avoid  leading 
them  av/ay  from  the  issue  made  by  the  pleadings,  and  into  giving 
effect  to  facts  not  in  the  case.    If  extraneous  and  irrelevant  facts 
have  been  disclosed  by  the  evidence  which  are  likely  to  influence  the 
jury,  tlie  latter  should  be  admonished  to  disregard  them;  and  a 
statement  of  the  law  relating  to  such  irrelevant  facts  without  limita- 
tion, and  in  such  manner  as  naturally  to  lead  the  jury  to  believe  such 
facts  effective  in  the  consideration  of  their  verdict,  will  constitute 
reversible  error,  because  inclined  to  mislead  the  jury.    Lindley  v. 
Sullivan,  133  Ind.  588,  592;  McKeen  v.  Porter,  134  Ind.  483,  49°; 
Nichol  V.  Thomas,  53  Ind.  42,  52;  Elliott,  Gen.  Pr.,  899.   The  pro-  s 
priety  of  an  instruction  is  to  be  determined,  not  by  whether  it  em-  ' 
bodies  a  correct  statement  of  the  law  upon  a  given  state  of  facts, 
but  whether  it  correctly  states  the  law  relevant  to  the  issuable  facts 
given  in  evidence  on  the  trial.^^ 

The  court  clearly  stepped  outside  the  case  made  by  the  pleadings 
iri  the  giving  of  this  instruction.  The  sole  ground  of  complaint  is 
the  untimely  starting  of  the  car  before  the  plaintiff  had  time  fully  to 
alight.  That  the  defendant  failed  to  assist  the  plaintiff  in  leaving 
the  car  is  not  stated  as  a  cause  for  damages,  or  even  that  such  thing 
had  occurred,  and  therefore,  so  far  as  it  affected  the  plaintiff's  right 
to  recover  damages,  it  was  wholly  immaterial  whether  the  defendant 
did  or  did  not  assist  him  from  the  car.  The  record  shows  that  con- 
siderable evidence  was  given,  without  objection,  both  in  support  and 
in  denial  of  the  conductor's  claim  that  he  did  assist  the  plaintiff  off 
the  car;  but  the  giving  of  irrelevant  evidence  without  objection  fur- 
nishes the  court  no  sufficient  justification  for  charging  the  jury 
that  the  defendant  might  be  found  guilty  of  negligence  upon  a  state 
of  facts  not  properly  in  the  case.=^*  The  natural  effect  of  such  charge 


"Accord:  Hooker  v.  Johnson,  6  Fla.  730  (1856)  ;  Whitman  v.  Keith,  18 
Ohio  St.  134  (1868)  ;  Gulf  of  California  Nov.,  &c.  Co.  v.  State  Investment, 
&c.  Co.,  70  Cal.  586  (1886)  ;  Holt  v.  Pearson,  12  Utah  63,  41  Pac.  560  (1895)  ; 
Baltimore  &  O.  R.  Co.  v.  Lee,  106  Va.  32,  55  S.  E.  i  (1906)  ;  Smitley  V.  Pinch, 
148  Mich.  670,  112  N.  W.  686  (1907)  ;  Smith  v.  Central  Vermont  R.  Co.,  80 
Vt.  208,  67  Atl.  535  (1907)  ;  Ratner  V.  Chicago  City  R.  Co.,  233  111.  169,  84 
N.  E.  201  (1908)  ;  Hackett  v.  Chicago  C.  R.  Co.,  235  III.  116,  85  N.  E.  320 
(1908). 

"Accord:  Coos  Bay  R.  Co.  v.  Siglin,  26  Ore.  387  (1894)  ;  Moody  v.  Rozv- 
land,  100  Tex.  363,  99  S.  W.  11 12  (1907);  Jacksonville  El.  Co.  v.  Batchis, 
54  Fla.  192,  44  So.  933  (1907)  ;  Latourctte  v.  Meldriim,  49  Ore.  397,  90  Pac. 
■^03  C1907)  ;  Kellogg  v.  Kirksville,  132  Mo.  App.  519,  112  S.  W.  296  (1908). 
Contra :  Scott  y.  Sheaklv.  ^  Watts  (Pa.')  ^o  (18.^1) ;  Gayarre  v.  Tunnard, 
9  La.  Ann.  254  (1854);  l^oyce  v.  California  Stage  Co.,  25  Cal.  460  (1864)  ; 
Collins  V.  Collins,  46  Iowa  60  (1877)  ;  Bowers  v.  Thomas,  62  Wis.  480,  22  N. 
W.  710  (1885)  -.Sloan  V.  Baltimore  &  P.  R.  Co..  131  Pa.  St.  568,  18  Atl.  903 
(1890)  ;  Rome  Wotel  Co.  v.  Warlick,  87  Ga.  34,  13  S.  E.  116  (1^91)  ;  Brusie 
T.  Peck  Bros.  &  Co.,  135  N.  Y.  622,  32  N.  E.  76  (1892)  ;  Fox  v.  Utter,  6  Wash. 


430  TKIAL 

is  to  impress  the  jury  that  the  fact  of  assistance  or  non-assistance  is 
material,  and  the  truth  may  he  that  in  arrivinti^  at  tlieir  verdict  the 
jury  found  the  dcfomhint  guiU}'  of  ncci^hgcnce  in  faihng  to  assist  the 
l>haintitT  to  alight,  and  free  fioni  negligence  in  the  untimely  starting 
of  the  car.  \\c  can  not  tlierefore  say  that  the  instruction  was  harm- 
less. 


/ 


Judgment  reversed.^' 


ST.  LOUIS,  I.  M.  &  S.  R.  CO.  v.  SPENCER. 

Circuit  Court  of  Appeals,  U.  S.,  Eighth  Circuit,  1895. 
71  Fed.  93. 

Sandborn,  J. :  About  9  o'clock  in  the  forenoon,  on  the  twenty- 
fourth  day  of  May,  1894,  Sarah  Owen  Spencer,  the  defendant  in 
error,  was  a  passenger  in  a  Pullman  car  attached  to  a  train  of  the 
St.  Louis,  Iron  Mountain  and  Southern  Railway  Company,  the  plain- 
tiff in  error,  which  was  passing  through  the  yard  of  that  company  at 
Texarkana,  in  the  state  of  Arkansas.  A  switchman  of  the  plaintiff 
in  error  carelessly  threw  a  switch  before  the  Pullman  car  had  passed 
it,  and  this  derailed  the  car,  caused  it  to  collide  with  a  train  of  coal 
cars,  smashed  two  of  the  windows  on  one  side  of  the  car,  and  as  the 
defendant  in  error  alleged,  seriously  injured  her.  She  brought  an 
action  for  her  damages,  and  recovered  a  judgment  against  the  com- 
pany. The  writ  of  error  in  this  case  was  sued  out  to  review  the 
proceedings  which  resulted  in  this  judgment. 

Counsel  for  tlie  plaintiff  in  error  declare  in  their  brief  that  they 
rely  upon  eleven  supposed  errors  to  reverse  the  judgment.  The 
first  five  are  founded  upon  exceptions  to  the  refusal  of  the  court  to 
give  certain  requests  for  instructions  to  the  jury,  which  they  pre- 
ferred. The  first  request  was  that  if  the  jury  believed  that  the  injury 
to  the  defendant  in  error  resulted  without  fault  of  the  company,  by 
inevitable  accident,  or  by  reason  of  the  diseased  condition  of  the 
defendant  in  error,  their  verdict  should  be  for  the  plaintiff  in  error. 
The  second  request  was  that  if  the  jury  found  from  the  evidence 
that  the  defendant  in  error  was  injured  by  mere  accident,  without 
fault  on  the  part  of  the  company  or  its  employes,  they  should  return 
a  verdict  for  the  company.   These  requests  were  properly  refused. 

299.  33  Pac.  354  (1893;  Madison  v.  Missouri  Pac.  R.  Co.,  60  Mo.  App.  599 
C1894)  ;  Oualy  v.  Johnson,  80  Alinn.  408,  83  N.  W.  393  (1900)  ;  Davis  v.  At- 
lanta, &c.  R.  Co.,  63  S.  Car.  370,  41  S.  E.  468  (1901)  ;  Struehling  v.  Stevenson, 
129  Iowa  25,  105  N.  W.  341  (1905)  ;  National  Mutual  Fire  Insurance  Co.  v. 
S Prague,  40  Colo.  344,  92  Pac.  227  (1907)  ;  Childs  v.  Childs,  49  Wash.  27,  84 
Pac.  660  (1908J.    See  2  Thompson  Trials  (2d  ed.),  §  2309  et  seq. 

"See  Republic  Iron  &  S.  Co.  v.  Radis,  106  111.  App.  530  (1903), 
where  it  is  said:  "It  is  error  to  instruct  the  jury  upon  matters  inadmissible 
in  evidence  under  the  pleadinps,  when  proper  objections  are  made,  even 
though  the  court  admits  the  evidence  against  the  objection."  Accord:  Illinois 
Cent.  R.  Co.  v.  McKee,  43  111.  119  (1867)  ;  Bick  v.  Minneapolis,  St.  P.  &  S.  S. 
M.  R.  Co.,  107  Alinn.  78,  119  N.  W.  505  (1909). 


ST.   LOUIS,  I.    M.   &  S.   R.    CO.  V.    SPENCER  43 1 

The  evidence  was  undisputed  that  the  derailment  of  the  car  was 
caused  by  the  act  of  the  switchman  of  the  company,  who  threw  the 
switch  before  the  rear  trucks  of  the  car  had  passed  over  it.  It  is 
error  to  charge  the  jury  upon  an  assumed  state  of  facts  to  which  no 
evidence  apphes,  because  it  withdraws  their  attention  from  the  real 
issues  on  trial,  and  tends  to  fix  it  upon  issues  that  are  not  pre- 
sented by  the  case.^^ 

The  requests  for  instructions  of  which  complaint  is  made  in  the 
third,  fourth  and  fifth  supposed  errors  that  are  relied  upon  were 
substantially  given  in  the  general  charge  of  the  court.   It  is  not  error  : 
for  the  trial  court  to  refuse  to  charge  as  requested  by  counsel,  where  ] 
the  rules  of  law  embodied  in  the  requests  are  properly  laid  down  in  , 
the  general  charge  of  the  court.^'^ 

The  sixth,  seventh,  eighth,  ninth  and  tenth  supposed  errors  of 
which  complaint  is  made  relate  to  certain  paragraphs  in  the  general 
charge  of  tlie  court;  but,  upon  examination  of  the  record,  we  find 
that  no  exceptions  to  these  portions  of  the  charge  were  taken  before, 
the  jury  retired. 

The  general  charge  covers  four  closely-printed  pages  of  this 
record.  It  states  uncontroverted  facts  and  propositions  of  law  for 
the  guidance  of  the  jury.  Many,  perhaps  all,  of  these  statements 
and  propositions  are  correct.  The  exception  of  counsel  for  plaintiff 
in  error  to  each  and  every  sentence  of  the  charge  given  was  therefore 
unavailing.  "If  the  entire  charge  of  the  court  is  excepted  to,  or  a 
series  of  propositions  contained  in  it  are  excepted  to  in  gross,  and/ 
any  portion  of  what  is  excepted  to  is  sound,  the  exception  can  not) 
be  sustained."^^  ' 


'"Citing  Northwestern  Miit.  Life  Ins.  Co.  v.  Stevens,  71  Fed.  258  (1895)  ; 
Railroad  Co.  v.  Huston,  95  U.  S.  702,  24  L.  ed.  ^^  (1S77)  ',  A'£?w  York,  N.  H. 
&  H.  R.  Co.  v.  Blessing,  67  Fed.  277  (1895).  Accord :  Etting  v.  Bank  of  U.  S., 
II  Wheat.  (U.  S.)  59,  6  L.  ed.  419  (1826)  ;  State  v.  Gibbons,  10  Iowa  117 
(1859)  ;  Pelley  v.  Wills,  141  Ind.  688,  41  N.  E.  354  (1895)  ;  Consolidated  Trac. 
Co.  V.  Haight,  59  N.  J.  L.  577,  37  Atl.  135  (1896)  ;  Cunningham  v.  Davis,  175 
Mass.  213,  56  N.  E.  2  (1900)  ;  hJieskrll  v.  Farmers  Sr  AJrrhnpir<f  hint  Rpnt-^ 
^V,  ^^  ^'^^  (^^7*7)  ;  Indiana  R.  Co.  v.  Maurer,  160  Ind.  25,  66  N.  E.  156  (1902)  ; 
Clark  V.  Morris,  30  App.  (D.  C.)  553  (1908)  ;  Pelham  v.  Chattahoochie  Gro- 
cery Co.,  156  Ala.  500,  47  So.  172  (1908)  ;  Florida  East  Coast  R.  Co.  v.  Carter, 
67  Fla.  335,  65  So.  254  (1914).  So,  also,  instructions  should  not  be  given  em- 
bodying mere  abstract  propositions  of  law.  Hathorn  v.  Stinson,  10  Maine 
224  (1833)  ;  Mosaic  Tile  Co.  v.  Chiera,  133  Mich.  497,  95  N.  W.  537  (1903) ; 
Harden  v.  City  of  Moline,  l7g  111.  App.  loi  (1912)  ;  Maionica  V.  Piscopo,  217 
Mass.  324,  104  N.  E.  839  (1914). 

''Citing  Union  Pacific  R.  Co.  v.  Jarvi,  53  Fed.  65,  3  C.  C.  A.  433  (1892)  ; 
Gulf  C.  &  S.  F.  R.  Co.  V.  Washington,  49  Fed.  347,  i  C.  C.  A.  286  (iSgi)  ; 
Union  Pac.  R.  Co.  v.  O'Brien,  49  Fed.  538,  i  C.  C.  A.  354  (1891)  ;  Eddy  v. 
Lafayette,  49  Fed.  807,  i  C.  C.  A.  441  (1891).  Accord :  Fleming  v.  Dixon,' IQ4 
Pa.  St.  67,  44  Atl.  1064  (1899);  Hcrbich  v.  North  Jersey  St.  R.  Co",  07 
bi.  J.~tr574,  52  Atl.  357  (1902)  ;  Virginia  P.  &  P.  Co.  v.  Patterson,  104  Va. 
189,  51  S.  E.  157  (1905) ;  Stone  v.  Leiviston  B.  &  B.  R.  Co.,  99  Maine  243, 
59  Atl.  56(1904)  ;  McGarry  v.  Healey,  78  Conn.  365,  62  Atl.  671  (1905)  ; 
Davis  V.  Diamond  Carriage,  &c.  Co.,  146  Cal.  59,  79  Pac.  596  (1905)  ;  Creachen 
v.^omley  Bros  Carpet  Co.,  214  P_a^.LS^_M-Atl  ig.q  (1906);  MacFeat^vT 
P-  ^-  cr  B.  R.  Co.,  t)  l^ennw.  TDel.)  513,  69  Atr744  (1908);  Amorsen  v. 
Swift,  243  111.  93,  90  N.  E.  250  (1909). 

'-Citing  McClellan  v.  Pyeatt,  50  Fed.  686,  I  C.  C.  A.  613  (1891)  ;  Bracken 
V.  Union  Pacific  R.  Co.,  56  Fed.  447,  5  C.  C.  A.  548  (1893)  ;  Beaver  v.  Taylor, 


432  t:ciai. 

The  diargo  of  tlic  court  was  concluded,  and  the  jury  retired  to 
consider  their  verdict,  on  January  20,  1895.  The  exceptions  now 
iirijed  to  certain  siiecillc  jiorlions  of  the  charge  lirst  appeared  in  the 
bill  of  exceptions,  which  was  presented  to  and  signed  by  the  judge 
who  tried  the  case  on  February  23,  1895.  These  exceptions  are 
utterly  futile.  As  early  as  November,  1892,  the  decision  of  this 
court  apprised  counsel  of  this  fact.  In  Price  v.  Pankhurst,^'-^  Judge 
Caldwell,  in  delivering  the  opinion  of  this  court,  said : 

"It  is  the  duty  of  the  party  excepting  to  call  the  attention  of 
the  court  distinctly  to  the  portions  of  the  charge  he  excepts  to,  and 
this  must  be  done  before  the  cause  is  finally  submitted  to  the  jury, 
to  the  end  that  the  court  may  have  an  opportunity  to  correct  or 
explain  the  parts  of  the  charge  excepted  to,  if  it  seems  proper  to  do 
so.  The  practice,  which,  it  has  been  intimated  at  the  bar,  sometimes 
obtains,  of  taking  a  general  exception  to  the  whole  charge,  with 
leave  to  specify  particular  exceptions  after  the  trial,  is  a  plain  viola- 
tion of  the  letter  and  si)irit  of  the  rule.  The  parly  who  conceives 
that  the  charge  is  erroneous  in  any  respect,  and  remains  silent,  will 
not  be  heard  to  point  out  tb.e  error  after  the  trial ;  and  a  general 
exception  to  the  whole  charge,  any  part  of  which  is  good  law,  is 
equivalent  to  silence.  The  rule  is  mandatory.  Its  enforcement  does 
not  rest  in  the  discretion  of  the  lower  court."  This  rule  has  been 
repeatedly  affirmed.^" 

Judgment  affirmed. 


93  U.  S.  46,  23  L.  ed.  797  (1876)  ;  Lincoln  v.  Claflin,  7  Wall.  (U.  S.)  132, 
19  L.  ed.  106  (1868);  Cooper  v.  Schlesinger,  in  U.  S.  148,  28  L.  ed.  382, 
4  Sup.  Ct.  360  (1884);  Burton  v.  Ferry  Co.,  114  U.  S.  474,  29  L.  ed.  215 
(1884)  ;  Rogers  v.  The  Marshall,  i  Wall.  (U.  S.)  644,  17  L.  ed.  714  (1863)  ; 
Moulor  V.  American  Life  Ins.  Co.,  in  U.  S.  333,  28  L.  ed.  447,  4  Sup.  Ct. 
466  (1884)  ;  Block  V.  Darling,  140  U.  S.  234,  35  L.  ed.  476.  n  Sup.  Ct.  832 
(1891).  Accord:  Walsh  v.  Kelly,  40  N.  Y.  s=;6  (1869);  Stcffenson  v.  Chi., 
M.  &  St.  P.  R.  Co.,  51  Minn.  531,  53  N.  W.  ^  (1892)  ;  Syndicate  L  Co.  v. 
Catchings,  104  Ala.  176,  16  So.  46  (1893)  ;  Luedtlcc  v.  Jeffcrv,  89  Wis.  136, 
61  N.  W.  292  (1894);  Brozck  V.  Steinway  R.  Co.,  161  N.  "Y.  63  (1899); 
Luce  V.  Hassam,  76  Vt.  450,  58  Atl.  725  (1904)  ;  Foote  v.  Kellcy,  126  Ga.  799, 
55  S.  E.  1045  (1906)  ;  Inland  Steel  Co.  v.  Smith,  168  Ind.  245]^  80  N.  E.  538 
(1906).  Contra:  Dady  v.  Condit,  188  111.  234,  58  N.  E.  900  (1900)  ;  Ellis  v. 
Leonard,  107  Iowa  487,  78  N.  W.  246  (1899)  ;  Curtis  v.  Winston.  186  Pa!  §):. 
492,  40  Atl.  786  (1898)  ;  Mastel  v.  Walker,  246  Pa.  6.i.  Q2  Atl.  63  (1914). 
"•'53Fcd.  312  (1892).  "  ""^ 

*°Citing  Bracken  v.  Union  Pac.  R.  Co.,  56  Fed.  447,  5  C.  C.  A.  548  (1893)  ; 
Emanuel  v.  Gates,  S3  Fed.  772,  3  C.  C.  A.  663  (1892)  ;  Sutherland  V.  Round, 
57  Fed.  467,  6  C.  C.  A.  428  (1893)  ;  Park  v.  Bnshnell,  60  Fed.  583,  9  C.  C.  A. 
138  (1894).  Accord:  Hickory  v.  United  States,  151  U.  S.  303,  38  L.  ed.  170, 
14  Sup.  Ct.  334  (1894).  Exceptions  to  the  charge  or  to  the  refusal  of  instruc- 
tions must  be  taken  at  the  trial,  but  tlie  precise  time  and  manner  is  usually  a 
matter  of  local  practice.  See  generally  38  Cvc.  1700  and  Vaughan  V.  Porter, 
16  \'t.  266  (1844)  ;  Illinois  Cent.  R.  Co.  v.  Modglin,  85  III.  481  (1877)  ;  Hayes 
V.  Solomon,  90  Ala.  520,  7  So.  921  (1889)  ;  Spooner  v.  Cummings,  151  Mass. 
313,  23  N.  E.  839  (1890)  ;  Caroulte  v.  Williamson,  108  Cal.  135  (1895)  ;  Gehl 
V.  Mitojaukee  Produce  Co.,  n6  Wis.  263,  93  N.  W.  26  (1903)  ;  Polykranas  v. 
Krausz,  73  App.  Div.  583,  77  N.  Y.  S.  46  (1902)  ;  Broadivay  Trust  Co.  v.  Fry, 
40  Misc.  680,  83  N.  Y.  S.  103  (1903)  ;  N.  Y.  Code  Civil  Proc.  §  995;  Nadeait 
V.  Sawyer,  73  N.  H.  70,  59  Atl.  369  (1904)  ;  Block  v.  Great  Northern  R.  Co., 
106  Minn.  285,  118  N.  W.  1019  (1908)  :  Lindsay  v.  Dutton,22ZP3^j2d&^j^s,-At\. 
1096    (1910)  ;    Commonuicalth   v.   Johnston,  44  Pa.    Super.   Ct.   218    (1910); 


r 


WHITNEY   V.    WELLESLEY    &   B.    ST.    R.    CO.  433 


WHITNEY  V.  WELLESLEY  AND  BOSTON  STREET 
RAILWAY  COMPANY. 


Supreme  Judicial  Court  of  Massachusetts,  1908. 

197  Mass.  495." 


Bradley,  J.:  If  trial  by  jury  is  to  retain  its  efficiency,  the  pre- 
siding judge  by  means  of  suitable  instructions  must  enable  jurors  to 
see  their  way  to  a  right  verdict.  The  provisions  of  R.  L.  ch.  173,  sec. 
80,  which  first  appeared  in  Gen.  Stat.  ch.  115,  sec.  5,  that  "tlie  courts 
shall  not  charge  juries  with  respect  to  matters  of  fact,  but  they  may 
state  the  testimony  and  the  law,"  were  not  intended  to  destroy  this 
salutary  power.  In  the  construction  of  the  statute  it  uniformly  has 
been  held  that,  in  charging  juries,  the  judge,  although  prohibited 
from  stating  his  opinion  as  to  the  credibility  of  witnesses,*^  may  sum 
up  the  testimony  according  to  his  recollection,  submitting  its  effect, 
however,  to  their  consideration  and  judgment,  and  leaving  to  them 
for  decision  all  issues  of  fact  within  tlieir  province.  He  may  eluci- 
date the  proper  application  of  the  legal  principles  involved  by  illus- 
trations drawn  from  common  experience,  or  by  reference  to  cases 
where  similar  questions  have  been  decided,  and  define  the  degree  of 
weight  which  the  law  attaches  to  a  whole  class  of  testimony.  In  any 
clear  analysis  of  the  evidence,  however  impartial,  the  attention  of 
the  jury  necessarily  must  be  directed  to  the  weight  and  Importance 
of  particular  facts  which  they  may  find  to  have  been  proved.  If  an 
unbiased  analytical  statement  of  the  testimony  and  of  the  law  dis- 
tinctly indicates  the  party  who  is  entitled  to  prevail,  this  furnishes  no 
just  reason  for  the  defeated  party  to  complain,  either  of  the  method 
employed  or  of  the  adverse  verdict.^^  Besides,  it  is  not  a  violation  of 


Qulmhy  V.  Jay,  196  Mass.  584,  82  N.  E.  10S4  (1907).  Where  points  for  charge 
are  declined,  it  is  not  necessary  to  read  them  to  the  jury;  it  is  better  practice 
not  to  read  them.  IValdie  v.  Doll,  29  Cal.  555  (1866)  ;  Ransom  v.  Christian, 
56  Ga.  351  (1876)  ;  Sherman  v.  State,  17  Fla.  888  (1880)  ;  Walhert  v.  Trexler^ 
i^  Pa.  St.  112,  27  Atl.  6.=;  (1893)  ;  Long  v.  Southern  R.  Co.,  50  S.  Car.  49,  27 
STE.  531  (1897;  ;  Soper  Lnn'wer  Co.  v.  Halsted,  73  Conn.  547,  48  Atl.  425 
(1901)  ;  Muthershauph  v.  McCabe,  22  Pa.  Super.  Ct.  .S87  (190.1). 

"Tlae""statement  of  facts  and  part  ot  the  opinion  of  the  court  are  omitted. 

*^Chapman  v.  Erie  R.  Co.,  55  N.  Y.  579  (1874)  ;  Chicago  &  A.  R.  Co.  v. 
Robinson,  106  111.  142  (1883)  ;  Wheeler  v.  Baars,  33  Fla.  696,  15  So.  584  (1894)  ; 
Jones  V.  Warren,  134  N.  Car.  390,  46  S.  E.  740  (1904)  ;  Sheppehnan  v.  People, 
134  III.  App.  556  (1907)  ;  Cleveland,  C.  C.  &  St.  L.  R.  Co.  v.  Schneider,  40 
Ind.  App.  524,  82  N.  E.  538  (1907)  ;  Central  of  Georgia  R.  Co.  v.  Sowell,  3 
Ga.  App.  142  (1907).  Compare  Simmons  v.  Penna.  R.  Co..  ioq  Pa.  232,  48 
Atl.  1070  (1901). 

_  ^'At  common  law,  the  trial  judge  may  express  his  opinion  upon  the 
weight  of  the  evidence,  provided  the  ultimate  decision  of  the  questions  of  fact 
is  left  to  the  jury.  Petty  v.  Anderson,  3  Bingh.  170  (1825)  ;  Solarte  v.  Mel- 
ville, 7  B.  &  C.  430  (1827)  ;  Dnrkee  v.  Marshall,  7  Wend.  (N.  Y.)  312  (i8y )  ; 
Rowell  V.  Fuller,  59  Vt.  688,  10  Atl.  853  (1887)  ;  Brandt  v.  Frederick,  78  Wis. 
I,  47  N.  W.  6,  II  L.  R.  A.  199  (1890)  ;  Hiirlbnrt  v.  Hurlbnrt,  128  N.  Y.  420,  28 
N.  E.  651,  26  Am.  St.  482  (1891)  ;  Doyle  v.  Union  Pac.  R.  Co.,  147  U.  S.  413,  37 
L.  ed.  223  (1893)  ;  Pool  v.  White.  I7=;  Pn  /\^n  i^  Afl  Sot  (1896)  ;  Cinder^ 
v^  Bachman,  8  Pa.  Super.  Ct.  405  (1898)  ;  Houghton  v.  New  Haven,  79 
2« — Liv.  rROC.  ■ 


TRIAL 


the  constitutional  requirement  that  judj^cs  shall  he  as  "free,  Impartial 
and  independent  as  the  lot  of  humanity  will  admit,"  if  the  instruc- 
tions, while  judicially  fair,  are  comprehensively  strong,  rather  than 
hesitatin£;lv  barren  or  inelVcctive,  and  neither  the  tone  of  a  charge, 
nor  the  form  of  verbal  delivery  are  of  themselves  ground  of  excep- 
tion, if  no  error  of  law  apix^ars.^*  In  a  word,  the  judge  who  dis- 
charges the  functions  of  his  office  Is,  under  the  statute  as  well  as  at 
common  law,  the  directing  and  controlling  mind  at  the  trial,  and  not 
a  mere  functionary  to  preserve  order  and  lend  ceremonial  dignity  to 
the  proceedings. 

In  the  present  case,  under  the  exceptions  taken  at  the  close  of 
the  charge,  tlie  defendant  alleged  a  two-fold  grievance,  namely, 
because  the  testimony  had  been  incorrectly  stated,  and  because  the 
comment  upon  it  was  argumentative,^^  rather  than  expository.  The 
first  objection  has  been  waived  by  tlie  subsequent  stipulation,  that  the 
evidence  had  been  correctly  stated,  and,  to  ascertain  If  the  instruc- 
tions are  open  to  the  second  objection,  the  entire  charge  is  to  be 
considered,  and  not  isolated  portions.  The  plaintiff  sued  for  per- 
sonal injuries  received  while  a  passenger  on  a  car  of  the  defendant, 
and  in  defense  it  was  said  that  her  claim  was  a  fraudulent  Invention 
to  get  damages.  In  her  evidence  she  described  the  injury  as  being 
on  "her  right  leg,  while  a  medical  witness  of  the  defendant,  from  a 
phvslcal  examination  made  shortly  after  the  accident,  directly  con- 
tradicted her,  by  locating  it  upon  the  left  leg.  But  even  then  the 
jury  could  say  that,  if  the  injury  \vas  proved,  the  distinction  of  mem- 
Conn.  6;o,  66  Atl.  509  (1907)  ;  Mcrhlingcr  v.  Lambert,  76  N.  J.  L.  806,  72  Atl. 
119  (1908).  But  in  many  states  the  court  is  restrained  from  commenting  on 
the  facts  or  expressing  an  opinion  upon  the  weight  of  the  evidence.  Salter  v. 
Myers,  5  B.  Mon.  (Kv.)  280  (1845)  ;  Evans  v.  Blackhart.  12  111.  195  (1850)  ; 
Wood  v.  Deutchman,  75  Ind.  148  (1881)  ;  Chieago  &  A.  R.  Co.  v.  Robinson, 
106  111.  142  (1883)  ;  State  v.  Greer,  22  W.  Va.  800  (1883)  ;  Lorie  v.  Adams,  51 
Kans.  692,  2,3  Pac.  599  (1893)  ;  Hamlin  v.  Treat,  87  Maine  310,  32  Atl.  909 
(1895)  ;  Tyler  v.  Chesapeake  &  O.  R.  Co.,  88  Va.  389,  13  S.  E.  975  (1891)  ; 
Supreme  Lodge  v.  Lipscomb,  50  Fla.  406,  39  So.  637  (iQOS)  ;  Latimer  v. 
General  E.  Co.,  81  S.  Car.  374,  62  S.  E.  438  (1908)  ;  Mitchell  v.  Masury,  132 
Ga.  360,  64  S.  E.  295  (1908).  And  in  jurisdictions  where  the  judge  may  com- 
ment on  the  evidence,  he  must  do  so  in  a  dispassionate  manner.  MP^ier  v. 
Phila.  Rcip!d  Trmtsit  Co.,  227  Pa.  273,  75  Atl.  1070  (1910)  ;  Valley  Lumber  Co. 
v7  Smith,' 71  Wis.  304,"  37  -N-  ^^412,  5  Am.  St.  2i6  (1888):  Berkowits  v. 
Schlanger,  70  Misc.  239,  126  N.  Y.  S.  664  (191 1). 

*•  Accord:  Reiger  v.  Davis,  67  N.  Car.  185  (1872)  ;  Rotintree  V.  Gurr,  68 
Ga.  292  (1881)  ;  Page  v.  Smiipter,  S3  Wis.  652,  II  N.  W.  60  (1881)  -.Horton  v. 
TJir  fhrvingfr^r  <^-^r  Cnnl  fl/)..  2  Pennv.  (Pa.)  21_Ll882)  ;  Cibbs  v.  Johnson, 
63  Mich.  671.  30  N.  W.  343  (1886)  ■,Bealv.  Lowell  &D7^t.  R.  Co.,  157  Mass. 
444,  32  N.  E.  653  (1892)  ;  Motherway  v.  Wall,  168  Mass.  333,  47  N.  E.  13S 

*^The  charge  should  be  clear,  direct  and  explicit,  Morris  v.  Morris,  28  Mo. 
114  (1859)  ;  Gafney  v.  .S7.  Paul  City  R.  Co.,  81  Minn.  459,  84  N.  W.  304  (1900)  ; 
Rondinella  \^Jlcirot>oHt_anLife  Iiis^o..  24  Pa.  Super.  Ct.  29.3  (1904).  and  not 
argumentative. /Fray  v.  /:73'7f^TAtSr553,  17  bo.  I80  ( 1894)  ;  UlJea  v.  Michigan 
C.  R.  Co.,  142  Mich.  265,  105  N.  W.  746  (1905)  ;  Illinois  Cent.  R.  Co.  v.  Colh- 
son,  134  111.  App.  443  (1907) ;  Jones  v.  Monson,  137  Wis.  479,  119  N.  W.  179 
(1909).  But  the  fact  that  particular  instructions  are  argumentative  is  not 
reversible  error,  where  the  charge,  as  a  whole,  properly  advises  the  jury  upon 
the  material  issues.  McCormick  v.  Parriott,  Z2,  Colo.  382,  80  Pac.  1044  (1905)  : 
Thrall  v.  Wilson.  17  Pa.  ^nppr  Tf   ^76  (imiA. 


HUDSON    V.    MINNEAPOLIS,    L.    &    M.    R.    CO.  435 

bers  was  of  little  consequence.  If,  in  his  recapitulation  of  the  testi- 
mony, the  judge  dwelt  upon  this  incident  at  great  length,  he  did  not 
misquote  the  evidence,  and  it  can  not  be  said  that  the  illustrations 
used  are  wholly  inappropriate.  The  real  gravamen  of  the  complaint 
is,  that  they  conveyed  to  the  jury  an  argument  in  favor  of  the  plain- 
tiff. But  if  standing  alone,  there  is  some  ground  for  this  criticism, 
as  this  portion  of  the  charge  should  have  been  more  cautiously  ex- 
pressed, upon  his  attention  having  been  directed  to  the  matter,  the 
judge  in  full  and  unexceptional  language  further  instructed  them 
that  not  only  were  they  to  recall  the  evidence  from  having  heard  the 
witnesses,  and  depend  upon  their  own  judgment  as  to  its  evidentiary 
value,  but  also  that  what  he  had  said  by  way  of  comment  was  only*® 
to  make  plain  the  issues,  which  were  solely  for  their  determination. 
Exceptions  overruled.'*' 


FREDERICK  H.  HUDSON  v.   MINNEAPOLIS,  LYNDALE 
^  AND  MINNETONKA  RAILWAY  COMPANY. 

Supreme  Court  of  Minnesota,  1890. 

44  Minn.  52. 

Appeal  by  plaintifif  from  an  order  of  tlie  District  Court  for 
Hennepin  county,  Lochren,  J.,  presiding,  refusing  a  new  trial. 

Mitchell,  J. :  The  ground  upon  which  plaintiff  moved  for  a 
new  trial  was  an  alleged  irregularity  in  the  proceedings  of  the  court. 
The  facts,  as  disclosed  by  affidavits  presented  by  the  respective 
parties,  and  the  statement  of  the  judge  who  presided  at  the  trial, 
were  as  follows :  After  the  jury  had  been  charged,  they  retired  in 
the  care  of  an  officer  to  one  of  the  jury-rooms  to  deliberate  on  their 
verdict.  Later  in  the  afternoon,  tJie  judge,  having  completed  the 
other  work  of  the  day,  but  wathout  adjourning  court,  retired  to  his 
chambers  in  the  same  building.  Although  court  had  not  adjourned, 
yet,  there  being  no  one  in  the  courtroom  where  the  trial  had  taken 
place,  the  officer  in  charge  of  the  jury  permitted  them,  in  accord- 
ance with  a  common  practice,  to  come  out  of  the  jury-room  into 

*^New  York  Fireynen's  Ins.  Co.  v.  Walden,  12  Johns.  (N.  Y.)  513,  7  Am. 
Dec.  340  (1815)  ;  Tracy  v.  Swartwout,  10  Pet.  (U.  S.)  80,  9  L.  ed.  354  (1836)  ; 
Porter  v.  Sciler,  23  Pa.  St.  424,  62  Am.  Dec.  341  (1854)  ;  Illinois  Cent.  R.  Co.  v. 
''Davidson,  76  Fed.  517,  22  L.  C  A.  30b  (1896). 

*'Accord:  Stewart  v.  Fuller,  208  Mass.  359,  94  N.  E.  680  (iQli).  The 
court  may  read  to  the  jury  from  the  statutes  applicable  to  the  case.  Sommer 
V.  Carbon  Hill  Coal  Co.,  107  Fed.  230,  46  C.  C.  A.  255  (1901)  ;  McNatt  v. 
McRae,  117  Ga.  898,  45  S.  E.  248  (1902),  or  from  decisions  which  state  the 
law  correctly  and  are  appHcable  to  the  facts.  Lett  v.  Horner,  S  Blackf.  (Ind.) 
296  (1840)  ;  In  re  Spencer,  96  Cal.  44S  (1892)  ;  Henry  v.  Klopfer,  147  Pa. 
178,  23  Atl.  337,  338  (1892),  but  not  where  the  extract  read  is  inapplicable  or 
misleadmg.  Stiicke  v.  Mihvaukee  &  M.  R.  Co.,  9  Wis.  202  (1859)  ;  Talmadge 
V.  Davenport,  31  N.  J.  L.  561  (1864)  ;  Dimes  Sav.  hut,  v.  Allentown  Bank 
61  Pa.  St.  ^Qi  (i869)r  Stewart  v.  Hiinter,  16  Ore.  62,  16  Pac.  876,  S  Am. 
St.  267  (1888)  ;  Lendberg  v.  Brotherion  Iron  Min.  Co.,  75  Mich.  48,  42  N  W 
C75  (1889). 


436  TRIAL 

the  courtroom,  tlic  latter  beinj^  more  commodious.  After  they  had 
deHberatcd  there  some  tune,  they  notified  tlie  oflicer  that  they  desired 
further  instructions  from  the  judge.  The  officer  communicated  tliis 
recjuest  to  the  judge,  and  also  notified  the  clerk  of  the  court,  and 
then  made  diligent  search  throughout  and  around  the  court-house 
for  the  counsel  and  parties  connected  \vith  the  case,  but  was  unable 
to  find  any  of  them,  as  they  had  all  left.  Theroui)on  the  judge,  ac- 
companied by  the  clerk  and  the  sheriff,  entered  the  court-room;  the 
jury  in  the  meantime  having  taken  tlieir  seats  together  in  the  jury- 
box  as  at  the  trial.  The  judge  then  resumed  his  seat  upon  the  bench. 
The  ofticer,  in  answer  to  the  inquiry  of  the  judge,  stated  to  him 
that  he  had  searched  for  the  parties  and  their  counsel,  and  could  find 
none  of  them  about  the  court-house ;  that  none  of  them  were  in  or 
about  it.  The  clerk  then  called  the  list  of  the  jurors,  who  responded 
to  their  names  as  called.  The  judge  then  asked  them  if  they  had 
agreed  upon  a  verdict,  to  which  they  responded  that  they  had  not. 
The  foreman,  seconded  by  another  juror,  then  asked  the  court  a 
question  respecting  a  matter  of  law  relating  to  the  case.  The  judge 
answered  tlie  question  propounded,  and  then,  together  with  all  others 
except  the  jury,  retired  from  the  court-room.  All  this  w^as  done  pub- 
licly, in  the  presence  of  the  court  officers,  w^ith  the  doors  of  the  court- 
room open,  in  the  day-time,  in  open  session,  and  before  any  adjourn- 
ment of  the  court  for  the  day.  It  is  also  worthy  of  note,  as  indicating 
how  little  real  merit  there  was  in  the  plaintiff's  motion  for  a  new 
trial,  that  he  does  not  claim  that  the  instruction  given  was  erroneous, 
nor  does  he  anywhere  state  what  it  w^as,  or  excuse  himself  for  not 
doing  so  by  alleging  that  he  does  not  know.  We  fail  to  see  anything 
irregular,  or  even  lacking  in  courtesy,  in  tlie  conduct  of  the  court. 

Counsel  for  plaintiff  attempt,  rather  disingenuously  as  we  tliink, 
to  use  the  fact  that  the  jury  had  been  let  out  into  the  courtroom  so 
as  to  convey  tlie  impression  that  the  judge  entered  the  jury-room 
alone,  and  there  held  private  communication  with  them  respecting 
the  cause.  But  the  fact  tliat  the  jury  had  been  deliberating  in  the 
courtroom  for  a  time,  during  the  absence  of  others,  is  wholly  im- 
material. Under  the  facts  stated,  the  instruction  given  by  the  judge 
to  the  jury  was  not  a  privy  communication,  but  a  communication  in 
open  court,  and  in  the  regular  form  of  judicial  proceedings.^^  Most 

^■"It  is  improper  for  the  judge  to  communicate  with  the  jury  except  in  open 
court  after  they  have  retired  to  deHberate  upon  their  verdict.  Bunn  v.  Crotil, 
10  Johns.  (N.  Y.)  239  (1813)  ;  Cook  V.  Green,  6  N.  J.  L.  109  (1822)  ;  Benson 
V.  Clark,  I  Cow.  (N.  Y.)  258  (1823);  Sargent  v.  Roberts,  i  Pick.  (Mass.) 
32>7,  II  Am.  Dec.  183  (1823);  Fish  v.  Smith,  12  Ind.  563  (1859);  Somnter 
v^  HubcjL^S^  Pa.  St.  162  38  Atl.  S9S  (1897)  ;  ffitrst  v.  Webster  MfgTUo':; 
'nS'Wis.  342,  107  N.  W.  566  (1906)  ;  State  v.  Murphy,  17  N.  Dak.  48,  115 
N.  W.  84,  17  L.  R.  A.  (N.  S.)  609  (1908)  and  note;  Du  Cate  v.  Brighton, 
133  Wis.  628,  114  N.  W.  103  (1907);  Berst  v.  Moxom,  163  Mo.  App.  123, 
145  S.  W.  857  (1912);  Mound  City  v.  Mason,  262  111.  392,  104  N.  E.  685 
(1914).  Contra:  Shapley  v.  White,  6  N.  H.  172  (1833).  In  some  cases 
appellate  courts  have  refused  to  reverse  where  the  irregularity  was  trifling 
and  no  prejudice  shown.  Galloway  v.  Corhitt,  52  Mich.  460,  18  N.  W.  218 
(1884)  ;  Mosley  v.  Washburn,  165  Mass.  417,  43  N.  E.  182  (1896)  ;  State  v. 
Olds,  106  Iowa  no,  76  N.  W.  644  (1898)  ;  People  v.  Pickert,  26  Misc.  112,  56 
N.  Y.  S.  1090  (1899). 


HUDSON    V.    MINNEAPOLIS,    L.    &    M.    R.    CO.  437 

of  the  cases  cited  by  counsel  refer  to  communications  of  the  first 
kind,  and  hence  are  not  in  point.  Even  in  the  case  of  Sargent  v. 
Roberts,  i  Pick.  (Mass.)  337,  which  is  a  case  of  that  kind,  and  lays 
down  a  very  strict  rule,  it  is  added:  "No  communication  whatever 
ought  to  take  place  between  the  judge  and  the  jury  after  the  cause 
has  been  committed  to  them  by  the  charge  of  the  judge,  unless  in 
open  court,  and,  where  practicable,  in  presence  of  the  counsel  in  the 
cause."  The  cases  from  Ohio  involving  communications  in  open 
court  were  mainly  controlled  by  a  statute  of  that  state,  which  re- 
quired that  all  instructions  should  be  given  and  the  verdict  received 
"in  the  presence  of,  or  after  notice  to,  the  parties  or  their  counsel." 
But  even  there  it  was  held  no  error  to  receive  a  verdict  or  to  give 
instructions  in  the  absence  of  the  parties  or  their  counsel,  after  they 
had  been  loudly  called  at  the  court-house  door,  or,  pursuant  to  a 
previous  understanding,  had  been  notified  by  ringing  the  court-house 
bell.  Crusen  v.  State,  lo  Ohio  St.  258;  Preston  v.  Bozvers,  13  Ohio 
St.  I.  Davis  V.  Fish,  i  G.  Greene  (Iowa)  406,  was  evidently  decided 
mainly  upon  the  ground  that  the  session  of  the  court  was  held  on 
Sunday,  and  without  any  notice  to  the  parties;  the  court  clearly 
intimating,  however,  that  if  the  session  had  been  on  a  business  day, 
and  within  reasonable  hours,  some  reasonable  effort  to  secure  the 
presence  of  the  absent  counsel  or  party,  such  as  calling  them  at  the 
door,  would  be  sufficient. 

The  trial  of  a  case  is  not  concluded  until  a  verdict  has  been  ren- 
dered, or  tlie  jury  has  been  discharged  from  the  further  considera- 
tion of  the  cause,  and  it  is  the  duty  of  the  counsel  to  remain  in  or  be 
represented  at  the  court  during  its  sessions  until  the  trial  is  ended. 
The  power  of  the  court  to  recall  a  jury  and  give  them  additional  in- 
structions has  never  been  questioned,  and  counsel  and  parties  can 
not,  by  absenting  themselves  from  the  court-room  before  the  trial  is 
ended,  take  away  this  power,  or  suspend  the  right  to  exercise  it 
until  tliey  can  be  found  and  brought  in.  It  is  no  part  of  the  duty  of 
the  court  to  dispatch  messengers  to  hunt  up  absent  parties  or  counsel, 
and  to  suspend  business  until  tliey  return.  A  proper  regard  for  the 
dispatch  of  public  business  in  our  courts  forbids  any  such  thing. 
It  is  customary  to  send  for  counsel  when  the  jury  come  into  court 
for  further  instructions,  and  to  wait  a  reasonable  time  for  tliem  to 
return.  It  is  eminently  proper  and  very  desirable  that  this  should 
be  done  whenever  it  conveniently  can  be,  for  a  court  is,  and  always 
ought  to  be,  unvv^illing  to  give  any  instructions,  if  it  can  be  avoided, 
without  affording  counsel  a  full  opportunity  to  suggest  corrections 
or  additions;  and  Vv-e  have  no  desire  to  do  anything  that  would  in 
any  way  tend  to  a  disregard  of  those  usages  and  customary  forms 
designed  to  insure  a  fair  and  impartial  trial  of  causes  in  courts  of 
justice.  But  the  practice  of  sending  for  parties  or  counsel  who  have 
absented  themselves  before  the  end  of  the  trial  is  a  matter  of  court- 
esy, and  not  of  right,  Wiggins  v.  Downer,  6y  How.  Pr.  (N.  Y.)  65  ; 
Cornish  v.  Graff,  36  Hun.  (N.  Y.)  160;  Cooper  v.  Morris,  48  N.  J. 
L.,  607;  Alexander  v.  Gardiner,  14  R.  I.  15;  Chapman  v.  Chicago 
and  N.  Y.  Ry.  Co.,  26  Wis.  295;  Danntley  v.  Hyde,  6  Jur.  133. 
Hoberg  v.  State,  3  Minn.  181,  262,  involved  a  case  of  a  private  com- 


4^1^  TUIAL 

munioatioii  by  the  judfjc  to  the  jury  after  they  luiJ  retired  to  deliber- 
ate on  tiieir  verdict.  Aloreovcr  that  was  a  prosecution  for  a  felony, 
wiicrc  a  more  strict  rule  is  usually  ai)plied  than  in  civil  actions,  or 
even  prosecutions  for  misdemeanors,  cs[iecially  with  reference  to  the 
personal  presence  of  the  accused  during  all  the  proceedings  had  at 
the  trial. 

In  view  of  the  result  reached  on  the  merits,  we  have  not  found  it 
necessary  to  consider  the  ciuestion  of  practice  as  to  whether  proof 
of  an  irregularity  of  this  kind  can  be  made  by  affidavit,  or  whether 
the  facts  must  be  incorporated  into  a  case  or  bill  of  exceptions. 
See,  however,  People  v.  Kelly,  94  N.  Y.  526. 

Order  affirmed.^^ 


/ 


SECTION  10.     CUSTODY  AND  CONDUCT  OF  JURY. 

BISHOP  OF  L.  V.  EARL  OF  KENT. 

Exchequer  Chamber,  1499. 

2  Brooke's  Abridgement,  309  pi.  ig."^ 


In  the  exchequer  chamber  the  case  was  that  at  the  nisi  prius 
in  tlie  county  of  Bedford,  upon  issue  between  the  Bishop  of  L.  and 
the  Earl  of  Kent,  the  jury  w^as  sworn  at  the  bar,  and  when  the  evi- 
dence was  being  given  to  them,  there  came  such  a  tempest  of  thunder 

**"The  court  has  a  large  discretion  in  the  matter  of  giving  additional 
instructions  after  the  jury  has  retired  for  deUberation,  and  may  supplement 
the  original  charge  whenever  confident  that  the  ends  of  justice  will  be  best 
subserved  by  doing  so.  *  *  *  Only  in  case  of  abuse,  resulting  in  injury  to 
some  substantial  right,  will  an  exercise  of  such  discretion  be  reviewed." 
Carter  v.  Becker,  69  Kans.  524,  yy  Pac.  264  (1904).  Accord:  Bank  of  Kentucky 
V.  McWilliants,  2  J.  J.  Marsh.  (Ky.)  256  (1829);  Lee  v.  Quirk,  20  111.  392 
(1858)  ;  Sittig  v.  Birkestack,  38  Md.  158  (1873)  ;  Nichols  v.  Miinscl,  115  Mass. 
567  (1874)  -.JjirjS  ffigh/ry,  icY^  Pa  .Sf.  ^/jp  (jP^9.'t  ;  People  V.  Perry,  65  Cal. 
568,  4  Pac.  572  (1884)  ;  Brccdlove  v.  Biindylgdlnh.  319  (1884)  ;  Phillips  v.  Neiv 
York  Cent.  &  H.  R.  K.  Co.,  127  N.  Y.  657,  27  N.  E.  978  (1891);  Allis  v. 
United  States,  155  U.  S.  117,  39  L.  ed.  91,  15  Sup.  Ct.  36  (1894)  ;  Miller jv. 
Rovnl  Flint  Glass  Works.  172  Pa.  St.  70,  23  Atl.  350  (1895)  ;  Rafnger  v. 
Boston  Mut.  Life  Assn.,  167  Alass.  log,  44  N.  E.  1088  (1896);  Douglas  v. 
Metropolitan  St.  R.  Co.,  119  App.  Div.  203,  104  N.  Y.  S.  452  (1907)  ;  Charlton 
V.  Kelly,  156  Fed.  433  (1Q07)  ;  Traders  &  Truckers  Bank  v.  Black,  108  Va.  59, 
60  S.  E.  743  (1908)  ;  Holland  v.  Shcehan,  106  Alinn.  545,  119  N.  W.  217  (1909)  ; 
First  Nat.  Bank  v.  Hedgecock,  87  Nebr.  220,  127  N.  W.  171  (1910)  ;  In  re 
Darrow,  175  Ind.  44,  92  N.  E.  369  (1910)  ;  Harrcll  v.  Columbia  Elec.  St.  R. 
&c.  Co.,  89  S.  Car.  97,  71  S.  E.  359  (1911)  ;  Humphrey  v.  Monida  &c.  Stage 
Co.,  115  Minn.  18,  131  N.  W.  498  (1911);  Check  v.  Nicholson  (Tex.  Civ. 
App),  146  S.  W.  594  (1912)  ;  Ruck  V.  Milwaukee  Brew.  Co.,  148  Wis.  222, 
134  N.  W.  914  (1912)  ;  Gotoskcy  v.  Grawunder  (Tex.  Civ.  App.),  is8  S.  W. 
249  (1913)  ;  IValczakowski  v.  Mihvankee  Elec.  R.  &  Light  Co.,  157  Wis.  191, 
147  N.  W.  20  (1974);  Gay  v.  Gay,  74  W.  Va.  800,  83  S.  E.  75  (1914). 
Contra:  Southern  Pacific  Co.  v.  Wilson,  10  Ariz.  162,  85  Pac.  401  (1906) 
statute;  Randolph  v.  Govan,  22  Miss,  g  (1850)  semble. 

""Translated.  The  abridged  case  is  reported  at  length  in  Y.  B.  14  Hen.  VIT, 
29.  The  opinion  of  Keble,  J.,  concurring  with  Woode,  J.,  is  reported  in  Y.  B. 
15  Hen.  VH,  i.  The  substance  of  the  case  is  given  in  the  notes  to  King  v. 
Woolf,  I  Chitty  401  (1819),  and  Smith  v.  Thompson,  1  Cow.  (N.  Y.)  221 
(1823). 


BISHOP   OF   L.    V.    EARL   OF    KENT  439 

and  rain  that  some  of  the  jury  departed  without  leave  of  the  justices 
(it  seems  that  they  stood  open  In  the  street)  and  a  juror  came  into  a 
house  where  divers  said  to  him  that  he  take  care  what  he  did,  for 
the  matter  was  better  for  the  Earl  of  Kent  than  for  the  bishop ;  and 
prayed  him  to  drink  with  them,  and  so  he  did ;  and  after  the  tempest 
ceased  the  jury  came  back,  and  no  challenge  taken  to  them,^^  and 
they  were  sent  into  an  inn,  and  when  they  were  agreed  to  give  their 
verdict,  the  Earl  of  Kent  showed  this  matter  to  the  justices,  who  de- 
manded it  of  the  jury,  who  confessed  it;  and  it  was  demanded  if 
they  were  agreed  in  their  verdict,  who  said  yes ;  and  found  for  the 
bishop.  And  the  justices  were  in  doubt  if  the  verdict  was  good, 
wherefore  they  were  adjourned.  And  per  Woode,  J.,  the  juror  shall 
make  fine;  but  the  verdict  is  good  and  not  void.  But  Vavisor,  J., 
contra ;  and  that  jurors  are  like  prisoners  till  they  have  given  their 
verdict ;  for  the  not  giving  of  the  evidence  is  not  material,  for  if  no 
evidence  was  given,  yet  they  shall  give  their  verdict  for  the  one 
party  or  the  other,  and  the  earl  has  not  surceased  his  time  to  show 
this  matter,  and  at  least  he  may  show  it  amicus  curiae;  but  Rede,  J., 
contra ;  for  the  cause  of  the  departure  was  lawful.  For  the  law  is 
the  same  if  there  comes  a  sudden  affray,  and  the  law  is  the  same 
if  the  house  be  on  the  point  of  falling  down.  But  they  shall  make 
fine  for  eating  and  drinking,  for  this  is  a  contempt,  but  the  verdict 
is  good  and  not  void ;  and  where  they  have  agreed  on  their  verdict — 
and  take  food  and  drink  after  the  agreement  and  before  the  verdict, 
that  shall  not  render  the  verdict  void.  And  here  it  is  not  void,  for  he 
who  gave  him  drink  did  not  entreat  him  for  the  Earl  of  Kent,  and 
also  tlie  verdict  is  given  against  the  Earl.  Note  the  diversity ;  and 
Davers,  J.,  accordingly,  and  that  if  a  deed  which  accords  with  the 
issue  and  is  not  prejudicial  to  either  party  is  put  before  the  jurors  in 
the  house,  that  shall  not  render  the  verdict  void,  and  if  a  party  gives 
money  to  the  jury  which  passes  against  him,  still  the  verdict  is  good 
and  contra  if  it  passes  for  him,  and  agreed  with  Vavisor,  that  the 
party  had  not  surceased  his  time,  and  also  that  he  might  show  it  as 
amicus  curiae;  and  Tremaile,  J.,  agreed  with  Rede  in  omnibus.  And 
that  where  there  are  two  triers  in  a  house  and  one  of  them  drinks, 
which  was  confessed,  but  not  at  the  cost  of  any  party,  their  verdict 
is  good,  but  they  shall  be  fined.  And  at  this  time  Prisot,  J.,  Hody, 
C.  B.,  and  Brian,  J.,  contra,  who  held  the  taking  of  the  meat  and 
drink  before  that  they  were  agreed  shall  make  the  verdict  void,  not- 
v/ithstanding  that  it  was  not  at  the  costs  of  any  party ;  but  Fineux, 
J.,  contra,  and  that  the  verdict  is  good,  and  that  the  juror  shall  make 
fine,  and  agreed  with  Rede  in  omnibus;  and  as  to  the  surceasing  of 
the  time  and  amicus  curiae,  agreed  with  Vavisor,  and  adjornatur. 


"^When  informed  of  misbehavior  by  the  jury  it  is  incumbent  on  counsel 
to  move  promptly  in  the  matter  and  not  sit  silently  by  and  speculate  upon  the 
result.  Cooper  v.  Carr,  i6i  Mich.  405,  126  N.  W.  468  (1910)  ;  Brooks  v. 
Camak,  130  Ga.  213,  60  S.  E.  456  (1907)  ;  Western  Roofing  Co.  v.  South  Park 
Baptist  Church,  137  Mo.  App.  loi,  119  S.  W.  495  (1909)  ;  Francis  y.  Phila- 
delphia. &-C.,  R-  Co..  13  Mont.  County  L.  Rep.  (Pa.)  176  (1897)  ;  McLorHle  VT 
Binns,  5  Binn.  QPa.)  340,  6  Am.  Dec.  420  (1812). 


-J.JO 


TI^IAT, 


Anil  so  the  best  opinion  was  that,  tuic  sliall  he  made,  and  the  verdict 
good  and  not  void.'- 


WILSON  V.  ABRAHAMS. 

Supreme  Court  of  New  York,  1841. 
I  Hlirs  Retorts  C07 

The  trial  of  this  cause  at  the  Albany  circuit  lasted  nearly  two 
davs,  and  when  the  court  adjourned  for  rest  or  refreshment  in  the 
progress  of  the  trial,  the  jurors  were  allowed  to  separate.  During 
the  adjournment  for  dinner  on  the  second  day  of  the  trial,  one  of  the 
jurors  went  into  a  tavern  near  tlie  city  hall,  and  drank  about  half  a 
gill  of  brandy.  This  was  before  the  evidence  had  been  closed.  The 
jury  afterwards  rendered  a  verdict  for  the  plaintiff  for  ten  dollars 
damages,  which  being  much  less  than  he  supposed  himsejf  entitled 
to  recover,  he  now  moved  to  set  aside  the  verdict  for  tlie  misbehavior 
of  the  juror.  There  was  no  allegation  that  the  juror  was  intoxicated, 
or  that  the  drinking  was  at  the  request  or  expense  of  either  party, 
or  rendered  him  less  capable  than  he  was  before  for  the  proper  dis- 
charge of  his  duty.^^ 

Broxson,  J. :  In  civil  cases,  when  the  court  adjourns  for  refresh- 
ment in  the  progress  of  a  trial,  and  before  the  cause  is  finally  com- 
mitted to  the  jury,  it  is  now  the  usual  course  to  allow  the  jurors  to 
separate  and  return  to  their  families  or  boarding  houses  for  food 
and  rest ;  and  if  one  of  them  drinks  a  glass  of  spirituous  liquor  while 
so  absent  from  court,  I  can  not  think  it  sufficient  ground  for  setting 
aside  the  verdict,  unless  there  is  some  reason  to  suppose  that  the 
juror  drank  to  excess,  or  at  the  expense  or  on  the  invitation  of  one 
of  the  parties.  I  agree  that  it  would  be  well  that  all  men  should 
abstain  from  the  use  of  intoxicating  drinks;  but  until  that  senti- 
ment becomes  nearly  or  quite  universal,  I  think  it  should  not  be 
imposed  as  a  law  upon  a  juror  in  these  cases  where  he  is  permitted 
for  a  night  or  an  hour  to  go  w^heresoever  he  pleases  without  being 
attended  by  an  officer.  To  adopt  the  language  of  Parke,  J.,  in 
Everett  v.  YoncUs,  (4  Barn.  &  Adol.  681),  where  food  was  secretly 
delivered  to  the  foreman,  after  the  jury  had  retired  to  consider 
their  verdict,  "it  would  be  a  fearful  thing  if  verdicts  could  be  set 
aside  on  such  grounds  as  this."  We  might  expect  to  see  many  ver- 
dicts overturned.^* 


^Ko.  Lit.  227;  Y.  B.  24  Edw.  Ill  24;  Y.  B.  2  Hen.  IV  21,  22;  Y.  B.  14 
Hen.  VII  I.  A  separation  o£  the  jurors  when  considering  their  verdict 
induced  by  a  sudden  alarm  of  fire  in  a  building  within  less  than  one  hundred 
and  fifty  feet  of  the  jury  room,  is  not,  of  itself,  such  misconduct  as  will 
vitiate  the  verdict.  Armleder  v.  Lieherman,  33  Ohio  St.  77,  31  Am.  Rep.  530 
(■1877).  As  to  criminal  procedure  see  Rex  v.  Kettcridge,  112  Law  Times  783 
(191.O.  .         . 

"Part  of  the  opinion  of  the  court  is  omitted. 

"At  common  law,  if  the  jurors,  before  verdict,  ate  or  drank  at  their  own 
expense,  they  were  subject  to  a  fine,  but  the  verdict  was  not  void;  if  at  the 
cost  of  a  party  to  the   suit  the  verdict   would  be  set   aside.    Anonymous, 


WILSON    V.    ABRAHAMS  441 

When  in  the  course  of  the  trial,  a  juror  has  in  any  way  come 
under  the  influence  of  the  party  who  afterwards  has  the  verdict,  or 
there  is  reason  to  suspect  that  lie  has  drunk  so  much,  at  his  own 
expense,  as  to  unfit  him  for  the  proper  discharge  of  his  duty,  or 
where  he  has  so  grossly  misbehaved  himself  in  any  other  respect  as 
to  show  that  he  had  no  just  sense  of  the  responsibility  of  his  station, 
the  verdict  ought  not  to  stand.  But  every  irregularity  which  would 
subject  the  juror  to  censure,  whether  in  drinking  spirituous  liquor, 
separating  from  his  fellows,  or  the  like,  should  not  overturn  the 
verdict,  unless  there  be  some  reason  to  suspect  that  the  irregularity 
may  have  had  an  influence  on  the  final  result.^^ 

There  is  no  pretence  in  this  case,  that  the  juror  either  drank  to 
excess,  or  at  the  expense  of  the  defendant,  and  we  think  the  verdict 
should  not  be  disturbed. 

Motion  denied.^^ 


I  Dyer  27  (i53S);  Trewennarde  v.  Skewys,  i  Dyer  55  (1544)  ;  Anonymous, 
I  Dyer  218  (1562)  ;  Saunders  v.  Freeman,  i  Plowd.  209  (1562)  ;  Welcden  v. 
Elkington,  2  Plowd.  516  (1578);  Mounson  v.  West,  I  Leon.  132  (1588); 
Mounson  v.  IVest,  Goldsb.  93;  Harebottle  v.  Placock,  Cro.  Jac.  21  (1603); 
King  v.  Burdctt,  2  Salk.  645  (1697)  ;  King  v.  Biirdett,  12  Mod.  iii,  i  Ld. 
RajTn.  148;  Everett  v.  Youells,  4  B.  &  Ad.  681  (1833)  ;  Morris  v.  Vivian,  10 
M.  &  W.  137  (1842).  Compare  Cooksey  v.  Haynes,  27  L.  J.,  N.  S.,  Exch.  371 
(1858),  where  a  jury  covertly  procured  victuals  and  liquor,  and  the  court 
ordered  a  new  trial.  And  see  Hanrahan  v.  Ayres,  10  Misc.  435,  31  N.  Y.  S. 
458,  64  N.  Y.  St.  12  (1894). 

^^Compare  Rose  v.  Smith,  4  Cow.  (N.  Y.)  17,  15  Am.  Dec.  331  (1825)  ; 
Repalh  v.  Walker,  13  Colo.  109,  21  Pac.  917  (1889)  ;  Bernier  v.  Anderson,  8 
Idaho  67s,  70  Pac.  1027  (1902)  ;  Underzvood  v.  Old  Colony  St.  R.  Co.,  31 
R.  I.  253  (iQio).  with  McCausland  v.  McCansland,  i  Yeates  (Fa.)  372  (1794)  ; 
Richardson  v.  Jones,  I  Nev.  405  (1865);  State  v.  Ciicucl,  2)i  N.  J.  L.  249 
(1865)  ;  Hanrahan  v.  Ayres,  10  Misc.  435,  31  N.  Y.  S.  458,  64  N.  Y.  St.  12 
(1894)  ;  Hemmi  v.  Chicago  G.  W.  R.  Co.,  102  Iowa  25,  70  N.  W.  746  (1897)  ; 
Gorham  v.  Sioux  City  Stock  Yards  Co.,  118  Iowa  749,  92  N.  W.  698  (1902)  ; 
Elniney.  Chambers,  T  .Serg.  &  R.  (Pa.)  169^^14')  ;  Long  V.  Davis,  136  Iowa 
734,  114  N.  W.  197  (1907)  ;  St.  Louis  Belt,  &c.,  R.  Co.  v.  Cartan  R.  E.  Co.,  204 
Mo.  565,  103  S.  W.  519  (1907)  ;  Walsh  v.  Winston,  18  Idaho  768,  iii  Pac.  1090 
(1910). 

^''It  has  generally  been  held  that  during  the  trial  of  a  civil  case  and 
before  final  submission  the  court  may,  in  its  discretion,  permit  the  jury  to 
separate  for  rest  and  refreshments,  first  admonishing  them  not  to  talk  about 
the  case  with  others.  Noel  v.  Denman,  76  Tex.  306,  13  S.  W.  318  (1890)  ; 
San  Antonio  &  A.  P.  R.  Co.  v.  Bennett,  76  Tex.  151,  13  S.  W.  319  (1890)  ; 
Welch  V.  Welch,  9  Rich.  L.  (S.  Car.)  133  (1855) ;  Morrow  v.  Saline  Co.,  21 
Kans.  484  (1879)  ;  Stancell  v.  Kenan,  33  Ga.  56  (1861)  ;  Abel  v.  Hitt,  30  Nev. 
93,  93  Pac.  227  (1908)  ;  Guardian  Fire  Ins.  Co.  v.  Central  Glass  Co.,  194  Fed. 
851  (1912).  And  even  after  the  submission  of  the  case  the  separation  of  the 
jury,  although  irregular,  will  not  warrant  a  reversal,  if  it  appears  that  neither 
party  was  prejudiced  thereby.  Brandin  v.  Grannis,  I  Conn.  402n.  (1814); 
Crane  v.  Sayre,  6  N.  J.  L.  no  (1822).  Compare  Shepherd  v.  Baylor,  5  N.  J.  L. 
827  (1820)  ;  Smith  v.  Thompson,  I  Cow.  (N.  Y.)  221  (1823)  ;  Wright  v.  Burch- 
ficld,  3  Ohio  53  (1827);  Harter  v.  Seaman,  3  Blackf.  (Ind.)  27  (1832); 
Pulaski  v.  Ward,  2  Rich.  L.  (S.  Car.)  119  (1845)  ;  Riggins  v.  Brown,  12  Ga.  271 
(1852) ;  Dozvner  v.  Baxter,  30  Vt.  467  (1857)  ;  Evans  v.  Foss,  49  N.  H.  490 
(1870);  Eich  V.  Taylor,  20  Minn.  378  (1874);  Armleder  v.  Lieberman,  t,:^ 
Ohio  St.  77,  31  Am.  Rep.  530  (1877)  ;  Carter  v.  Ford  Plate  Glass  Co.,  85  Ind. 
180  (1882)  ;  Watts  V.  South  Bound  R.  Co.,  60  S.  Car.  67,  38  S.  E.  240  (1900). 


44^ 


TRIAL 


^ 


GULF.  COLORADO  AND  SANTA  FE  RAILWAY  COMPANY 
1'.  ]\L\TTIIEWS  FT  AL. 


Court  of  Civil  Aiteals  of  Texas,  1902. 
28  Tex.  C'xv.  An-  92. 


Trmpleton,  J.:  The  defendants  in  error,  who  are  the  wife  and 
minor  children  of  J.  L.  IMatthcws,  deceased,  brought  this  suit  to 
recover  damages  sustained  by  them  on  account  of  his  death,  which 
it  was  alleged  was  occasioned  by  the  negligence  of  the  plaintiff  in 
error.  On  a  trial  before  a  jury  they  obtained  judgment  for  $10,000." 

Pending  the  trial  of  this  case  in  the  district  court,  one  of  the 
jurors,  who  was  afterwards  selected  as  foreman  of  the  jury,  and 
J,  \^ .  W'oolsey,  whose  mother  was  a  sister  of  J,  L.  Matthews,  met 
during  a  recess  of  the  court.  The  juror  set  up  the  drinks  to  Woolsey. 
They  then  had  dinner  together,  Woolsey  paying  therefor.  After 
dinner  the  juror  bought  cigars  for  both.  They  had  a  private  con- 
versation on  the  streets,  which  lasted  several  minutes.  Woolsey  was 
looking  after  and  managing  the  cause  for  Mrs,  Matthews,  He  em- 
ployed the  attorneys  for  the  plaintiffs  and  w^ent  to  Fort  Worth  to 
look  up  testimony.  Lie  boarded  at  the  same  hotel  with  Mrs.  Mat- 
thews during  the  trial.  Woolsey  and  the  said  juror  lived  at  White- 
wright,  where  they  were  in  business.  They  wxre  intimate  friends. 
They  testified  that  the  case  was  not  mentioned;  that  their  meeting 
was  accidental  and  tliat  their  conversation  was  of  a  purely  social  na- 
ture. The  juror  bore  a  good  reputation.  These  facts  were  shown 
on  the  hearing  of  defendant's  motion  for  a  new  trial  and  were  in- 
sisted upon  as  a  reason  why  tlie  motion  should  be  granted.  We  are 
of  opinion  that  the  point  was  well  made,  and  that  the  trial  court 
erred  in  not  sustaining  tlie  motion  upon  that  ground. 

The  importance  of  guarding  a  jury  engaged  in  the  trial  of  a  cause 
from  improper  influences  is  too  well  understood  to  require  argument. 
While  Woolsey  w^as  not  a  party  to  this  suit  and  had  no  pecuniary  in- 
terest in  it,  his  connection  with  the  case  was  such  that  it  was  mani- 
fest impropriety  for  a  juror  to  exchange  courtesies  with  him.  The 
juror  may  have  been  entirely  innocent  of  any  wrong  intention,  and 
it  is  even  possible  that  the  eating,  drinking,  smoking,  and  social 
intercourse  with  the  kinsman  and  manager  of  the  plaintiffs  did  not 
affect  his  verdict.  However,  such  conduct  was  reasonably  calculated 
to  do  so,  and  may  have  done  so  without  the  juror  knowing  it.  No 
matter  how  innocent  the  parties  may  have  been,  their  conduct  was 
improper,  and  it  is  impossible  to  say  that  injury  to  the  defendant 
did  not  result  from  It.  The  only  safe  rule  to  adopt  upon  a  question 
like  this  is  to  require  of  the  jurors  and  interested  parties  such  cir- 
cumspection as  will  prevent  all  suspicion  of  improper  influence.  The 
jurors  and  parties  should  keep  strictly  aloof  from  each  other  pend- 
ing the  trial,  and  if  they  do  not,  but  meet  under  circumstances  from 
which  injury  to  the  other  party  may  be  reasonably  apprehended,  a 
verdict  for  the  party  engaging  in  intercourse  with  the  juror  can  not 

''Part  of  the  opinion  is  omitted. 


ALEXANDER   V.    JAMESON  (    443 

be  sustained.  Such  a  transaction  is  incapable  of  explanation.  If 
parties  were  permitted  to  excuse  improper  conduct  of  this  character 
on  the  ground  that  no  wrong  was  intended  and  probably  no  injury 
was  done,  it  would  be  impossible  to  draw  the  line  anywhere  short 
of  absolute  corruption.  We  are  unwilling  to  lend  encouragement  to 
practices  which,  if  tolerated,  would  undermine  the  purity  and  efii- 
ciency  of  our  jury  system. 

The  authorities  bearing  on  this  question  are  numerous  and  some- 
what conflicting.  In  Marshall  v.  Watson,  lo  Tex.  Civ.  App.  127,  40 
S.  W.  352,  the  authorities  upon  which  our  conclusion  is  based  are 
collated  and  reviewed.  We  concur  in  the  views  there  expressed, 
and  have  found  no  Texas  case  which  announces  a  different  rule.^^ 

Reversed  and  remanded. 


/^ 


ALEXANDER  v.  JAMESON. 

Supreme  Court  of  Pennsylvania,  1812. 
5  Bin.  (Pa.)  238.'' 


Tilghman,  C.  J. :  This  was  an  issue  directed  by  the  orphans' 
court  of  Franklin  county,  to  try  who  were  the  heirs  of  a  certain 
John  Alexander,  deceased.    The  defendants  gave  in  evidence  a 

^^Accord:  Sloan  v.  Harrison,  l  N.  J.  L.  123  (1792)  (party  talks  to  juror)  ; 
Knight  v.  Freeport,  13  Mass.  218  (1816)  (witness  talks  to  juror)  ;  Cosicr^v. 
Merest,  3  Br.  &  Bing.  272  (1822)  (hand  bills  distributed  reflecting  on  plain- 
tiff) ;  Turner  v.  Beardslcy,  19  Wend.  (N.  Y.)  348  (1838)  ;  Martin  v.  More- 
lock,  32  111.  485  (1863)  (attorney  converses  with  jurors)  ;  McDaniel  V.  Mc- 
Daniels,  40  Vt.  363,  94  Am.  Dec.  408  (1867)  (friends  of  party  talk  to  jurors)  ; 
Erwin  v.  Bulla,  29  Ind.  95,  92  Am.  Dec.  341  (1867)  ;  Kecgan  y.  McCandlcss_, 
^_Phila.  (Pa.)  248  (1869)  (party  treats  juror)  ;  HamUionw.  Pease,  sS^Conn. 
115  (1871);  Piatt  v.  Threadgill,  80  Fed.  192  (1897)  (cigars  for  jurors); 
Austin  &  McCargar  v.  Langlois,  81  Vt.  223  (1908)  (counsel  plays  cards  with 
jurors);  Stcenburgh  v.  McRorie,  60  Misc.  510,  113  N.  Y.  S.  Iii8  (1908) 
(cigars  for  jurors)  ;  Matter  of  Vanderhilt,  127  App.  Div.  408,  III  N.  Y.  S.  558 
(1908)  (extra  pay  for  jurors)  ;  State  v.  Reid,  120  La.  200,  45  So.  103  (1907) 
(treating);  Craig  v.  Picrson  Lumber  Co.,  169  Ala.  548,  53  So.  803  (1910) 
(treating)  ;  Godfrey  v.  Dalquist,  27  S.  Dak.  373,  131  N.  W.  209  (1911)  (party 
and  juror  drink  together)  ;  Solomon  V.  Loud,  17s  Mich,  233,  140  N.  W.  651 
(1912)  (paying  a  juror  not  in  the  case  to  watch  the  jurors)  ;  Van  Loon  v.  St. 
Joseph  R.,  &c.  Co.,  174  Mo.  App.  372,  160  S.  W.  63  (1913)  ;  Sandstrom  v. 
Oregon,  &c.,  R.  Co.,  69  Ore.  194,  136  Pac.  878,  43  L.  R.  A.  (N.  S.)  889  (1913) 
(treating)  ;  In  re  Qiiinn's  Estate,  180  Mich.  502,  147  N.  W.  566  (1914)-  Com- 
pare, where  the  irregularity  was  held  insufficient  to  vitiate  the  verdict,  Barlowe 
V.  State,  2  Blackf.  (Ind.)  114  (1827)  ;  Mcllvaine  v.  Wilkins,  12  N.  H.  474 
(1841)  ;  Koester  v.  Ottiinnva,  34  Iowa  41  (1871)  ;  Borland  v.  Barrett,  76  Va. 
128,  44  Am.  Rep.  152  (1882)  ;  Vane  v.  Evanston,  150  111.  616  (1894)  ;  Prit ch- 
ard V.  Henderson,  3  Pennew.  (Del.)  128,  50  Atl.  217  (1901)  ;  Peary  v.  Metro- 
politan St.  R.  Co.,  162  Mo.  75,  62  S.  W.  452  (1901)  ;  Ayrhart  v.  JVilhelmy, 
135  Iowa  290,  112  N.  W.  782  (1907)  ;  Deighton  v.  Hover,  58  Wash.  12,  107 
Pac.  853  (1910)  ;  Beach  Front  Hotel  Co.  v.  Sooy,  iC)7  F'ed.  881,  118  C.  C.  A. 
579  (1912)  ;  Lints  V.  Denver  City  Tramway  Co.,  54  Colo.  371,  131  Pac.  258 

(1913). 

""The  statement  of  facts,  arguments  of  counsel  and  concurrmg  opmions 
are  omitted. 


444  TRIAL 

maiuiscript  book  found  in  the  trunk  ot  tlic  said  Alexander  after  his 
death.  \Vhcn  the  jury  were  about  to  retire,  the  counsel  for  the 
phiintirt's  objected  to  their  being  permitted  to  carry  this  book  out 
with  them;  but  the  court  were  of  opinion  that  the  jury  should  have 
it,  to  which  opinion  an  exception  was  taken,  on  which  we  are  now 
to  decide.  It  is  no  longer  a  c^ucstion  whether  the  book  was  legal 
evidence,  but  the  naked  ]>oint  is,  wliether,  having  been  given  in 
evidence,  tlie  court  might  i^crmit  tb.e  jury  to  take  it  out  with  them. 
It  is  untloubtediy  laid  down  as  a  principle  in  some  of  tlie  English 
cases  that  the  jury  are  to  take  no  papers  not  under  seal  without  the 
consent  of  both  parties ;°"  yet  the  same  cases  say  that  if  the  court 
permit  them  to  be  taken,  it  shall  be  no  cause  for  setting  aside  the 
verdict.  \\'e  are  somewhat  in  the  dark  as  to  the  reason  of  this  dis- 
tinction between  sealed  and  unsealed  writings,  but  it  is  certain 
that  it  originated  under  circumstances  not  applicable  to  the  present 
time.  The  best  account  of  it  is  to  be  found  in  the  writings  of  Lord 
Hale  and  Lord  Gilbert.^^  They  say  that  in  ancient  times,  men  of  rank 
and  property  had  seals  by  which  their  families  were  distinguished. 
Those  were  not  numerous ;  and  as  causes  were  tried  by  men  in  the 
neighborhood,  it  was  supposed  that  the  seals  were  so  notorious  as  to 
be  well  known  to  the  jury.  Papers  under  seal,  therefore,  carried 
their  own  evidence  along  with  them;  and  indeed  it  is  probable  that 
in  many  instances  it  was  thought  sufficient  to  affix  a  seal  without 
any  subscribing  witness,  so  that  the  instrument  was  authenticated  by 
the  seal  alone.  But  the  notoriety  of  seals  has  long  ceased.  Every 
man  now  takes  vvhat  seal  he  pleases.  They  are  no  longer  a  family 
distinction,  and  so  far  has  it  been  carried  in  this  and  some  other 
states,  that  a  flourish  with  the  pen  in  the  place  of  a  seal  has  been 
held  equivalent  to  a  seal.  It  is  to  be  observed,  that  although  the  rule 
is  laid  down  as  I  have  mentioned  in  the  luiglish  books,  yet  it  does 
not  appear  that  the  point  has  been  brought  before  any  court  for  the 
last  half  century,  during  which  period  the  commerce  of  the  world 
has  been  prodigiously  enlarged,  and  commercial  people  make  very 
little  use  of  seals  in  their  transactions.  I  have  never  known  this 
question  expressly  decided  in  Pennsylvania;  but  I  take  it,  that  in 
practice,  the  English  rule  has  not  been  extended  here.  It  has  been 
our  custom  to  deliver  to  the  jury  all  written  papers  except  deposi- 
tions taken  under  rule  of  court.  These  have  been  withheld,  because 
it  has  been  thought  unequal,  that  while  the  jury  were  not  permitted 
to  call  the  witnesses  before  them  who  had  been  examined  in  court, 
they  should  take  with  them  the  depositions  of  other  witnesses  not 
examined  in  court.*^-    After  the  uniform  practice  which  has  pre- 

n".  B.  n  Hen.  IV,  17;  Y.  B.  34  Hen.  VT,  25;  Vtcary  v.  Farthing  Co.. 
Cro.  Eliz.  411  (1595)  ;  Grazes  v.  Short,  Cro.  Eliz.  616  (1599)  ;  Olive  v.  Guin, 
2  Siderf.  145  (1658)  ;  Lord  Petre  v.  Heneage,  12  Mod.  519  (1702)  ;  Farmers^ 
Bank  V.  Whinficld,  24  Wend.  (N.  Y.)  419  (1840). 

"Hale's  Pleas  of  the  Crown,  307;  Gilbert  on  Evidence,  22;  Co.  Litt.  227b. 
See  TU  Holdsworth's  Hist.  Eng.  Law,  196,  324. 

•"Accord:  Negro  Jerry  v.  ToiL'tisend,  9  Md.  145  (1856);  Rawson  v. 
Curtiss,  19  III.  4S6  ('i8:;8^  ;  Shnmo  y  Zeigler,  10  Phila.  _X£a.l_  6jl.  31  Leg. 
Int.  205  (1874)  ;  Cockrill  v.  Hall,  76  Cal.  192.  18  Pac.  31S  (1888)  ;  Chamber- 
lain V.  Pybas,  81  Tex.  511,  17  S.  W.  50  (1891)  ;  Graham  v.  Citizens'  Bank,  45 


ALEXANDER   V.    JA:MES0N  445 

vailed  in  this  state,  I  can  not  consent  to  the  establishment  of  a  rule 
which  in  many  cases  would  produce  confusion  and  injustice.  I  have 
witnessed  the  trial  of  many  causes,  particularly  of  the  mercantile 
kind,  in  which  the  jury  could  not  decide  without  the  aid  of  unsealed 
papers ;  causes  which  required  the  minute  and  laborious  investiga- 
tion of  a  variety  of  books  and  papers,  in  which  long  calculations 
were  necessary,  founded  on  accounts  and  entries.  To  tell  the  jury 
that  they  must  form  their  verdict  on  the  recollection  of  what  passed 
at  the  bar,  would  be  imposing  on  them  a  most  unreasonable  duty. 
Under  such  circumstances,  they  could  do  no  more  than  make  a 
vague  guess  at  tlie  truth,  and  their  verdict  might  be  an  abuse  instead 
of  a  satisfactory  administration  of  justice.  I  am  of  opinion  there- 
fore that  the  court  of  common  pleas  had  a  right  to  permit  the  jury 
to  take  out  with  them  the  book  which  had  been  given  in  evidence, 
and  that  the  judgment  should  be  affirmed. 

Yeates,  J.,  and  Brackenridge,  J.,  delivered  concurring  opinions. 

Judgment  affirmed.^^ 

W.  Va.  701,  32  S.  E.  24s  (1898)  ;  L.  H.  &  St.  L.  R.  Co.  v.  Morgan,  no  Ky. 
740  (1901)  ;  Standard  S.  Co.  v.  McMiillen,  100  111.  App.  82  (iQoi)  ;  Winter- 
mute  V.  Furniture  Co.,  53  Wash.  539  (1909).  Contra:  Wakeman  v.  Marquand, 
5  Martin  (La.)  (N.  S.)  26s  (1826)  ;  Hopkinson  v.  Steel,  12  Vt.  582  (1840)  ; 
Stitcs  V.  McKihhen,  2  Ohio  St.  588  (1853);  Hozvland  v.  Willets,  9  N.  Y. 
170  (1853)  ;  Hansborough  v.  Stinnett,  25  Grat.  (Va.)  495  (1874).  Matter  rests 
in  discretion  of  judge.  Whitehead  V.  Keyes,  85  Mass.  495  (1862)  ;  Kratiss  v. 
Cope,  180  Mass.  22,  61  N.  E.  220  (1901)  ;  Koosa  v.  Wart  en,  158  Ala.  406,  48 
80.544(1909). 

'^Accord :  The  papers  to  be  taken  out  resting  In  the  court's  discretion, 
rrHnrnv.  Rirhnrdxnn.  46  Pa.  St.  385  Cl86.^)  ;  Porter  V.  Mount,  45  Barb.  (N. 
Yr)r422(l865)  ;  Clark  v.  Phoenix  Ins.  Co.,  36  Cal.  168  ( 1868) .  See  Cal.  Code  (Ziv. 
Proc.  (1915),  §  612;  Collins  v.  Frost, SA  Ind.  242  (1876)  ;  Tabor  v.  Jxidd,  62 
N.  H.  288  (1882}  ;  Hickman  v.  Ford,  43  Ark.  207  (1884)  ;  Barker  v.  Perry, 
67  Iowa  146,  25  N.  W.  100  (1885)  ;  Kittqnina  I.  Co.  v.  O'Neil.  no  Pa.  St. 
548,  I  Atl.  592  (1885)  ;  Mooncy  v.  HoJigJi,  34  Ala.  80,  4  So.  19  (1887)  ;  Tuhhs 
V.  Dwelling-House  Ins.  Co.,  84  Mich.  646,  48  N.  W.  296  (1891);  Chicago  &■ 
J.  E.  R.  Co.  V.  S pence,  213  111.  220,  72  N.  E.  796,  104  Am.  St.  213  (1904)  ; 
Raynolds  v.  Vinier,  12$  App.  Div.  18,  109  N.  Y.  S.  293  (1908)  ;  Phillips  v. 
Chase,  201  Mass.  444,  87  N.  E.  755  (1909)  ;  Johnson  v.  Fairbank  Co.,  156  111. 
App.  381  (1910).  Contra:  Unless  by  consent.  Lots  v.  Briggs,  50  Ind.  346 
(1875)  ;  Williams  V.  Thomas,  78  N.  Car.  47  (1878)  ;  Moore  v.  McDonald,  68 
Md.  321,  12  Atl.  117  (1887)  ;  Watson  v.  Watson,  12,7  Ky.  25,  121  S.  W.  626 
(1910).  Notes  of  testimony  should  not  be  given  to  the  jury.  Commonwealth 
v_Wnre^  T37  Pa.  S\.  /\6,K  (1890^  ;  Crisman  V.  McMurray,  loj' Tenn.  469,  64 
S.  W.  711  (1901).  Nor  documents  not  in  evidence.  Whitney  v.  Whitman,  5 
Mass.  405  (1809)  ;  Alger  v.  Thompson, 83Mass.4S3  (1861)  ;  Schappner  v.  Sec- 
ond Ave.  R.  Co.,  55  Barb.  (N.  Y.)  497  (1870)  ;  Peeks  v.  Odom,  70  Tex.  183, 
7  S.  W.  702  (1888)  ;  Rich  v.  Hayes,  97  Maine  293,  54  Atl.  724  (1903).  But  if 
a  document  not  in  evidence  is  sent  to  the  jury  by  mistake  and  has  no  influ- 
ence on  the  verdict,  a  new  trial  will  not  be  granted.  Winslow  v.  Campbell, 
46  Vt.  746  (1874)  ;  Hix  v.  Drury,  5  Pick.  (Mass.)  296  (1827).  It  is  most  ir- 
regular for  the  jury  to  take  documents  out  with  them,  without  the  court's 
consent.  Heylor  v.  Hall,  Palm.  325  (1623)  ;  Goodman  v.  Cotherington,  Siderf. 
235  (1665)  ;  Rex  v.  Burdett,  i  Ld.  Raym.  148  (1698)  ;  Sheaff  v.  Gray,  2  Yeates 
(Pa.)  273  (1798)  ;  Lott  v.  Macon,  2  Strob.  (S.  Car.)  178  (1847),  but  the  ver- 
dict may  be  allowed  to  stand  if  not  influenced  by  the  papers  improperly  exam- 
ined. Bersch  v.  State,  13  Ind.  434,  74  Am.  Dec.  263  (1859)  ;  Sanderson  v. 
Bowen,  4  Thomp.  &  C.  (N.  Y.)  675  (1874)  ;  Wilkins  v.  Maddery,  67  Ga.  766 
(1881). 


,\.\U  TRIAL 

yHT'    ISAAC  BRUNSON  v.  WllXIAAI  GRAHAM. 

^  SurREME_C0L'KT  OF  ri:XN SYLVAN lA,  1 796. 

2  Ycatcs  (Pa.)  166. 

Case  for  nonperformance  of  a  contract  respecting  the  transfer 
of  funded  stock  of  the  United  States.  The  cause  was  tried  at  the 
sittings  in  Philadelphia,  on  the  nineteenth  of  September  last,  and  a 
verdict  for  the  plaintiff. 

A  rule  was  made  to  show  cause  why  the  verdict  should  not  be 
set  aside  and  a  new  trial  granted,  which  rule  was  now  made  abso- 
lute by  consent  and  without  argument.  It  was  admitted  that  the 
jury  retired  from  the  bar  and  conferred  together  for  some  time 
without  coming  to  a  decision,  and  then  broke  up  late  at  night.  Next 
morning  one  of  the  jurors  applied  to  a  broker  for  information  re- 
specting the  price  of  certificates  at  a  particular  period,  and  having 
obtained  the  intelligence  he  wanted,  communicated  the  same  to  his 
fellow-jurors.  Metcalfe  v.  Deane,  Cro.  Eliz.  189. 

V^cmre  facias  de  novo  awarded.*^* 


)^ 


FALLS  CITY  v.  BENNET  SPERRY. 

Supreme  Court  of  Nebraska,  1903. 
68  Nehr.  420."" 


LoBiNXiER,  C. :  Defendant  in  error  obtained  a  judgment  against 
Falls  City  for  damages  alleged  to  have  resulted  from  a  change  in 
the  grade  of  the  street  in  front  of  the  former's  premises.  In  support 
of  its  motion  for  a  new  trial  the  city  filed  the  affidavits  of  several  of 


■^"Jurors  are  sworn  to  tr>'  the  cause  according  to  the  law  and  the  evidence. 
That  is  not  evidence  to  which  the  juror  listens  out  of  court,  when  thereis 
no  opportunity  to  meet  it,  and  no  chance  for  cross-examination."  Ncsmith 
V.  Clinton  F.  I.  Co.,  8  Abb.  Pr.  (N.  Y.)  141  (1859)  ;  I^ow  v.  Parsons,  1  Root 
(Conn.)  429  (1792)  ;  Robinson  V.  Donehoo,  97  Ga.  702,  25  S.  E.  491  (1895). 
But  a  new  trial  will  not  be  granted  where  it  is  made  to  appear  that  the  juror's 
communication  with  a  tliird  person  related  purely  to  his  private  affairs. 
Saltzman  V.  Sunset  Tel.  Co.,  125  Cal.  501,  58  Pac.  169  (1899).  Jurors  should 
decide  cases  upon  such  evidence  as  is  produced  before  them  by  the  parties  to 
the  litigation,  and  not  go  in  search  of  evidence  privately,  or  act  upon  evidence 
so  obtained.  Metcalfe  v.  Deane,  Cro.  Eliz.  189  (1590)  ;  Boivler  v.  Jl'ashinrjton, 
62  Maine  305  (1873)  ;  Winslow  V.  Morrill,  68  Maine  362  (187S)  ;  Harrington 
V.  Worcester  L.  &  S.  St.  R.  Co.,  157  Mass.  579,  32  N.  E.  955  (1893)  ;  Pierce  v. 
Brennan,  88  Minn.  50,  92  N.  \V.  507  (1901)  ;  Buffalo  Structural  Co.  v.  Dick- 
inson, 98  Apo.  Div.  355,  90  N.  Y.  S.  268  (1904);  Floody  v.  Great  Northern 
R.  Co.,  102  Minn.  81,  112  N.  W.  875,  1081  (1907);  Bowler  v.  Washington, 
62  Maine  302  (1873)  ;  Statnpofski  v.  Steffcns,  79  111.  303  (1875)  ;  Helmc  v. 
Ktiwston  8  KuId  (P^^  ^^i  fTSor.^  •  Deacon  v.  Shreve,  22  N.  J.  L.  175 
TTZ^i>)  ;  1- landers  v.  Mnllin,  73  Vt.  276,  50  Atl.  1055  (1901);  Wooldridge  v. 
White,  105  Kv.  247,  48  S.  W.  1081  (1899);  Consolidated  Ice  Mack.  Co.  v. 
Trenton  Hygiene  Ice  Co.,  57  Fed.  898  (1893)  ;  Ironton  Lumher  Co.  v.  Wagner, 
(Ky.)  119  S.  W.  197  (1909);  Johnson  v.  Riter-Conley  Mfg.  Co.,  149  App. 
Div.  543,  ^23  N-  Y.  S.  1004  (1912). 

"Part  of  the  opinion  of  the  court  is  omitted. 


FALLS   CITY   V.    SPERRY  447 

the  jurors,  to  the  effect  "that  Joseph  McCormick  was  one  of  _  the 
jurors  on  said  case  and  that  Joseph  McCormick  stated  in  the  jury 
room  before  the  members  of  the  jury  when  said  cause  was_  under 
consideration,  that  he  (McCormick)  was  well  acquainted  with  the  ' 
premises  in  question,  that  he  had  observed  the  street  and  premises 
of  Bennet  Sperry  before  the  grading  in  question  and  that  he  knew 
from  his  own  observation  before  and  after  the  grading  complained 
of  in  plaintiff's  petition  how  the  water  took  its  course  before  said 
grading,  along  said  street  in  front  of  plaintiff's  premises."  Affidavits  i 
of  several  outsiders  were  filed,  stating  that  the  same  juror  had  said' 
to  them  "that  he  (McCormick)  had  arrived  at  his  verdict,  or  the 
amount  Sperry  was  damaged  by  the  grading  in  question,  partly  from 
his  own  knowledge  of  the  premises  gained  from  his  observation  of 
the  street  and  premises  in  question  before  and  after  the  grading 
complained  of  in  plaintiff's  petition,"  Plaintiff  in  error's  attorneys 
also  presented  affidavits,  one  of  which  set  forth  that  affiant  "did  not 
know  that  said  Joseph  McCormick  personally  knew  anything  about 
the  premises  at  the  time  of  the  trial  and  the  knowledge  came  to  me 
after  the  verdict  had  been  rendered  in  said  case;  that  said  Joseph 
McCormick  upon  his  voir  dire  examination  before  being  sworn  to 
try  said  case  stated  that  he  knew  notliing  concerning  the  case  nor 
the  merits  thereof  and  that  he  had  no  knowledge  of  the  facts  in  the 
case." 

There  was  no  counter  showing,  and  these  affidavits  were  incor- 
porated in  a  separate  bill  of  exceptions  which  was  served  within  the 
forty  days  after  the  overruling  of  the  motion.  The  affidavits  are 
admissible  because  their  purpose  is  "to  prove  matters  occurring  dur- 
ing the  trial  or  in  the  jury  room  which  do  not  essentially  inhere  in 
the  verdict  itself."  Johnson  v.  Parrotte,  34  Nebr.  26,  30;  Harris  v. 
State,  24  Nebr.  803 ;  Savary  v.  State,  62  Nebr.  166,  179.  Whether  the 
facts  therein  recited  were  sufficient,  therefore,  to  entitle  plaintiff  in 
error  to  a  new  trial,  is  one  of  the  questions  presented  by  this  pro- 
ceeding. 

There  was  a  time  in  the  history  of  the  law  when  a  verdict 
arrived  at  by  the  method  here  complained  of  would  have  been  proper. 
The  primitive  English  jury,  while  not,  as  is  sometimes  loosely  said, 
a  mere  body  of  witnesses,  was  permitted  to  and  did  base  its  verdict 
chiefly  upon  the  prior  personal  knowledge  of  its  members.  6  Encyc. 
PI.  &  Pr.  668  et  seq.,  where  the  authorities,  legal  and  lay,  are  col- 
lected. 

This  rule  was  continued  in  force  longer  than  it  otherwise  would 
have  been,  by  the  fact  that  jurors  were  liable  to  the  penalties  of 
attaint  for  a  false  verdict.  3  Blackstone's  Commentaries,  p.  374. 
And  it  was  retained  in  qui  tarn  actions  until  well  into  the  eighteenth 
century.  Mattison  v.  Allanson,  2  Strange  1238.  But  with  the  sup- 
planting of  the  practice  of  attaint  by  that  of  new  trials  it  came  to  be 
the  rule  that  a  juror  could  not  use  his  personal  knowledge  of  the 
subject  matter  of  the  controversy  unless  he  was  sworn  and  gave  it 
to  his  fellow-jurors  like  any  other  witness.  Bennet  and  the  Hundred 
of  Hartford,  Style  233  (1650)  ;  Re.v  v.  Rosser,  7  Car.  &  P.  648; 


44S  TKIAT. 

Ma>ilc\  V.  Shaw,  Car.  &  ^lar.  361 ;  State  v.  Pozuell,  7  N.  J.  L.  ^244 ; 
.Inscliicks  v.  State,  6  Tex.  App.  5-M.  539-  This  did  not  necessarily 
prevent  him  from  still  acting  as  a  juror  {Hpzvscr  v.  CommomvcaWi, 
5^1  Pa.  St.  Zc)~^  :^Z'^''  Dunbar  v.  Park.'<,  2  Tyl.  (Vt.)  217;!  Wharton, 

"iCvidcncc,  sec.  Ooj),  but  it  did  preclude  him  from  communicating 
sinijilv  as  a  juror,  mailers  Avilhin  his  own  knowledge. 

The  modern  jury  must  arrive  at  ils  verdict  from  evidence  regu- 
larly produced  iii  the  course  of  the  trial  proceedings.  That  evidence 
may  be  no  different  from  such  as  might  be  acquired  by  the  jurors  un- 
officially, but  still  the  latter  could  not  be  considered.  Thus,  the  jury 

,  under  the  proper  supervision  may  view  the  premises  in  controversy, 
and  in  this  slale  such  view  may  afford  a  proper  basis  for  their  ver- 
dict. Chicago,  R.  I.  and  P.  R.  v.  FarzvcU,  60  Nebr.  322.  But  if  one 
or  more  the  jurors  should  visit  unofficially  the  same  locality  during 
the  progress  of  the  trial  and  reach  a  conclusion  as  a  result  of  such 
inspection,  the  verdict  would  be  vitiated.  W'mslow  v.  Morrill,  68 
]\Iaine  362;  Botvlcr  v.  Washington,  62  Maine  302;  Eastzvood  v. 
People,  3  Parker  Crim.  Rep.  (N.  Y.)  25;  Flanderst  v.  Mullin,  73 
Vt.  276;  Consolidated  Ice-Machine  Co.  v.  Trenton  Hygeian  Ice  Co., 
57  Fed.  898.  There  would  seem  to  be  no  difference  in  principle 
between  a  juror's  using  knowledge  irregularly  acquired  during  that 
trial  and  relying  on  that  acquired  prior  thereto. 

On  die  principle  above  stated,  jurors  are  not  allowed  to  make 
private  experiments  or  investigations  for  the  purpose  of  determining 
essential  controverted  points.  People  v.  Conkling,  iii  Cal.  616,  627; 
Wilson  V.  United  States,  116  Fed.  484,  486.^''  In  short  they  are  not 
permitted  to  consider  any  fact  not  brought  before  them  in  the  regu- 
lar way.  Hcffron  v.  Gallupe,  55  Maine  563,  568 ;  Thompson  v.  Mal- 
let, 2  Bay  (S.  Car.)  94,  and  if  one  of  their  number,  at  any  time 
before  an  agreement  is  reached,  makes  a  statement  to  his  fellow- 
jurors  based  upon  his  prior  knowledge  and  having  a  material  bear- 
ing on  the  subject  of  their  deliberations,  the  verdict  is  vitiated 
thereby.  Sam  v.  State,  1  Swan.  (Tenn.)  60;  Ryan  v.  State,  97 
Tenn.  206;  Citizens'  St.  R.  Co.  v.  Burke,  98  Tenn.  650,  652 ;  Forsyth 
V.  Central  Mfg.  Co.,  103  Tenn.  497,  498;  Anschicks  v.  State,  6  Tex. 
App.  524,  537.  A  juror  is  entitled,  of  course,  to  use  his  general 
knowledge  and  experience  on  a  subject  for  the  purpose  of  testing 
the  credibility  of  the  witnesses,  as  on  a  question  of  value.  Re.v  v. 
Rosser,  7  Car.  &  P.  648;  Patterson  v.  City  of  Boston,  20  Pick. 
(Mass.)  159.  But  if  he  have  knowledge  of  any  specific  matter  in 
controversy,  it  is  his  duty  to  so  inform  the  court,  and  have  it  placed 
before  his  fellow-jurors,  if  at  all,  according  to  the  established  rules 
of  trial  evidence. 

With  a  distinct  and  undisputed  showing  that  this  juror  not  only 
had  the  prior  knowledge  and  based  his  own  conclusions  partly 
thereon,  but  that  he  used  it  to  influence  his  fellow-jurors  in  arriving 


"Accord:  Jim  v.  State,  4  Humph.  (Tenn.)  2S9  (1843);  Yates  v.  People, 
38  111.  527  (1865)  ;  Higgins  v.  Los  Angeles  Gas  &  Electric  Co.,  159  Cal.  651, 
115  Pac.  313  (1911)- 


FRY   V.    IIORDY  449 

at  tlieir  verdict,  we  are  unable  to  see  how  it  can  be  permitted  to 
stand. 

Reversed  and  remanded.^''^ 


(^ 


^-"        FRY  V.  HORDY. 

Court  of  King's  Bench,  1677. 
T.  Jones  83'' 


On  a  verdict  for  the  plaintiff  it  was  moved  by  Levins  for  the 
defendant  to  have  a  new  trial,  because  upon  an  affidavit  urged  by 
him,  made  by  the  bailiff  who  attended  the  jury,  the  court  was  in- 

*''a Accord:  Wright  v.  Crump,  7  Mod.  I  (1702);  Bradley  v.  Bradley,  4 
Dall.  (Pa.)  112,  I  L.  ed.  763  (1792)  ;  Gregory  v.  Baugli,  4  Rand.  (Va.)  611 
(1827)  ;  Otiawa  Gas  Light  Co.  v.  Graham,  28  111.  73,  81  Am.  Dec.  263  (1862)  ; 
Head  v.  Hargrove,  105  U.  S.  45,  26  L.  ed.  1028  (1881)  ;  Douglass  v.  Trask, 
77  Maine  35  (1885)  ;  Griffin  v.  Harriman,  74  Iowa  436,  38  N.  W.  139  (1888)  ; 
Atchison,  &c.,  R.  Co.  v.  Hayes,  42  Kans.  609,  22  Pac.  741  (1889)  ;  Forsyth  v. 
Central  M.  Co.,  103  Tenn.  497,  53  S.  W.  731  (1899)  ;  Street  R.  &  T.  Co.  v. 
Simmons,  107  Tenn.  392,  64  S.  W.  70S  (1901)  ;  De  Gray  v.  N.  Y.  &  N.  J.  T. 
Co.,  68  N.  J.  L.  454,  53  Atl.  200  (1902).  But,  as  laid  down  in  Patterson  v. 
Boston,  20  Pick.  (Mass.)  159  (1S38),  jurors  in  arriving  at  a  verdict  may  make 
use  of  the  general  knowledge  and  experience  which  they  have  in  common  with 
other  men.  Schmidt  v.  Insurance  Co.,  67  Mass.  529  (1854)  ;  State  v.  Railroad 
Co.,  86  Maine  309  (1894)  ;  Lillibridge  v.  McCann,  117  Mich.  84,  75  N.  W.  288 
(1898)  ;  Piircellw.  Tibbies,  loi  Iowa  24,  69  N.  W.  1120  (1897)  ;  McGarrahan 
V.  N.  Y.,  N.  H.  &  H.  R.  Co.,  171  Mass.  211,  50  N.  E.  610  (1898)  ;  Karner  v. 
Kansas  City  El.  R.  Co.,  82  Kans.  842  (1910). 

Where  in  the  course  of  the  trial  the  jury  are  permitted  to  view  the  prem- 
ises involved,  it  has  been  held  in  some  jurisdictions  that  the  purpose  of  the 
view  is  to  enable  the  jury  to  better  understand  and  apply  the  testimony  given 
in  court,  and  that  the  jurors  may  not  base  their  verdict  upon  the  examina- 
tion itself.  Close  v.  Samm,  2.7  Iowa  503  (1869)  ;  Wright  v.  Carpenter,  49 
Cal.  607  (1875);  Pittsburgh,  Ft.  W.  &  C.  R.  Co.  v.  Swinney,  59  Ind.  100 
(1877)  ;  Machader  v.  Williams,  54  Ohio  St.  344,  43  N.  E.  324  (1896)  ■,Moffz. 
inan  y.  Bloomsburg  &  S.  R.  Co..  14^  Pa.  St.  503.  22  Atl.  823  ( 1891 )  ;  Dady  v. 
Condit,  188 "111.  234,  58  N.  E.  900  (1000)  ;  Northwestern  Miit.  Life  Ins.  Co. 
V.  Sun  Ins.  Co.,  85  Minn.  65,  88  N.  W.  272  (1901).  The  better  rule,  however, 
would  seem  to  be  that  what  is  observed  by  the  jury  upon  view  is  evidence, 
to  be  considered  in  connection  with  the  verbal  testimony  in  arriving  at  a 
verdict.  Fitzgerald  v.  La  Porte,  67  Ark.  263,  54  S.  W.  342  (1899)  ;  Chicago, 
&c.,  R.  Co.  V.  Parsons,  51  Kans.  408  (1803)  ;  Shano  v.  Fifth  Avenue  Bridge 
Co...  180  Pa.  St.  2A^.  42  Atl.  128  (1899)  ;  Groundwater  v.  Washington,  92  Wis7 
56,  65  N.  W.  871  (1896)  ;  Chicago,  R.  I.  &  P.  R.  Co.  v.  Farzuell,  60  Nebr. 
322,  83  X.  W.  71  (igoo)  ;  Norcross  v.  Vase,  199  Mass.  81,  85  N.  E.  468  (1908)  ; 
Tacoma  v.  Hansen,  59  Wash.  594,  no  Pac.  426  (1910).  In  People  v.  Milner, 
122  Cal.  171,  54  Pac.  833  (1898)  it  was  said:  "If  it  were  material  to  determine 
whether  a  hole  in  the  panel  of  a  door  was  or  was  not  caused  by  a  bullet,  it 
would  be  permissible  to  remove  the  panel,  to  bring  it  into  the  courtroom, 
offer  and  have  it  received  in  evidence,  and  submit  it  to  the  inspection  of 
the  jur^^  It  would  not  for  a  moment  be  doubted,  if  this  procedure  were 
adopted,  but  tliat  the  physical  object  was  evidence  in  the  case.  If,  instead  of 
so  doing,  the  court  should  direct  that  the  place  where  the  material  fact  oc- 
curred should  be  viewed  by  the  jury,  and  the  jury  should  be  conducted  to 
the  spot,  and  the  panel  of  the  door  pointed  out  to  them,  would  it  be  any  the 
less  the  reception  of  evidence  because  obtained  in  this  way?"  See  also  II 
Wigmore  on  Evidence,  §  1168. 

'^~Foy  v.  Harder,  3  Keb.  805 ;  Foster  v.  Hawden,  2  Lev.  205. 

29 — C:v.  Proc. 


450 


TRIAL 


formed,  that  the  jury  being  a  long  tunc  in  debate  on  their  verdict,  it 
■vvas  at  length  agreed  amongst  them  that  they  would  try  the  matter 
by  the  event  of  the  falling  of  a  sixpence,  if  pile  for  the  plaintiff,  if 
cross  for  tlie  defendant ;  and  the  chance  being  for  the  plaintilt,  they 
unanimouslv  gave  their  verdict  for  him,  and  (as  was  said)  against 
the  direction  of  the  judge  who  tried  the  cause:  but  that  matter  was 
not  regarded,  for  no  certificate  of  the  judge  was  produced.  But  for 
the  illbehavior  of  the  jury,  who  put  their  consciences  in  the  power  of 
chance,  a  rule  was  given  that  the  verdict  should  be  quashed,  and  the 
jurors  being  of  the  county  of  Northumberland  should  attend  the 
court  the  next  term,  unless  cause  this  term  ^hown.''^ 


f     Hir.H 


WILLIAM  S.  PARHAM  v.  THOMAS  HARNEY. 
Court  of  Errors  and  Appeals  of  Mississippi,  1846. 

14  Miss.  55. 


In  error  from  the  Circuit  Court  of  Hinds  county.  Action  by 
Thomas  Harney  against  William  S.  Parham  for  assault  and  battery. 
On  tJie  trial  there  was  a  verdict  for  plaintiff  for  $3,602.50.  A  new 
trial  v/as  refused  and  the  defendant  appealed.^^ 

Clayton,  J. :  The  principal  ground  of  error  assigned  in  this  cause 
is  the  misconduct  of  the  jury  upon  the  trial  in  the  court  below. 
Without  consultation  or  deliberation  about  their  verdict,  they  agreed, 
immediately  upon  entering  their  room,  that  each  should  put  down 
a  sum  which  should  be  divided  by  twelve,  and  that  the  result  should 
give  the  amount  of  damages  to  be  found  by  their  verdict.  This  rule 
was  adopted  and  acted  on.  The  several  amounts  put  down  by  the 
jurors  ranged  from  thirty  dollars  to  ten  thousand  dollars.  This  mode 
of  making  up  a  verdict  has  been  repeatedly  condemned  by  the  courts 
of  the  country.^*'  It  substitutes  the  fluctuating  and  uncertain  hazards 
of  a  lottery  for  the  deliberate  conclusions  of  their  reflections  and  in- 
terchange of  views. 

This  misconduct  w^as  established  by  the  testimony  of  three  wit- 
nesses, who  were  not  of  the  jury;  deputy  sheriffs  who  saw  the  pro- 
ceeding, and  the  tickets  upon  which  the  figures  were  written,  placed 
in  a  hat  and  drawn  out  to  form  the  basis  of  their  finding.  Such  a 
course  can  not  meet  w^ith  judicial  sanction. 

The  judgment  will  be  reversed  and  a  new  trial  awarded."^ 

''Accord:  Rex  v.  Fitzwaltcr,  3  Keb.  555  (1676)  ;  Rex  v.  Fitzwalter,  2  Lev. 
139;  Hale  V.  Cove,  i  Stra.  642  (1726)  ;  Philips  v.  Fowler,  Comyns  525  (1736)  ; 
Aylett  V.  Jewel,  2  W.  Bl.  1299  (1779)  ;  Vaise  v.  Delaval,  i  D.  &  E.  11  (1785)  ; 
Lew  V.  Brannan,  39  Cal.  485  (1870)  ;  Merscve  v.  Shine,  27  Iowa  253  (1873)  ; 
Obe'ar  v.  Gray,  68  Ga.  182  (1881)  ;  Wright  v.  Abbott,  160  Mass.  395,  36  N.  E. 
62  (1894). 

""The  statement  of  facts  is  abridged. 

'■"Mitchell  V.  Ehle,  10  Wend.  (N.  Y.)  595  (1833);  Elledpe  v.  Todd,  i 
Humph.  (Tenn.)  43,  34  Am.  Dec.  616  (1839)  ;  Roberts  v.  Fnilis,  i  Cow. 
(N.Y.)  238  (1823)  ;  r-Jarvey  v.  Rickett,  15  Johns.  (N.  Y.)  87  (1818). 

''Accord:  Warner  v.  Robinson,  i  Root  (Conn.)  194,  i  Am.  Dec.  38 
(1790);   St.  Martin   v.   Desnoyer,   I    Minn.    156,   61    Am.    Dec.   494    (1854); 


M  DONALD  &C.   GUARANTY  CO.  V.   PLESS  451 

Mcdonald   and   united   states   fidelity   and 

GUARANTY  CO.  v.  PLESS. 


/^^ 


Supreme  Court  of  the  United  States,  191 5. 
238  U.  S.  264. 

Lamar,  J. :  Pless  &  Winbourne,  attorneys  at  law,  brought  suit 
in  tlie  Superior  Court  of  McDowell  County,  North  Carolina,  against 
]^^IcDonald  to  recover  $4,000  alleged  to  be  due  them  for  legal  serv- 
ices. The  case  was  removed  to  the  then  Circuit  Court  of  the  United 
States  for  the  Western  District  of  North  Carolina.  There  M^as  a 
trial  in  which  the  jury  returned  a  verdict  for  $2,916  in  favor  of 
Pless  &  Winbourne.  The  defendant  McDonald  moved  to  set  aside 
the  verdict  on  the  ground  that  when  the  jury  retired  the  foreman 
suggested  that  each  juror  should  write  down  what  he  thought  the 
plaintiffs  were  entitled  to  recover,  that  the  aggregate  of  those 
amounts  should  be  divided  by  twelve  and  that  the  quotient  should  be 
the  verdict  to  be  returned  to  the  court.   To  this  all  assented. 

The  motion  further  averred  that  when  the  figures  were  read  out 
it  was  found  that  one  juror  was  in  favor  of  giving  plaintiffs  nothing, 
eight  named  sums  ranging  from  $500  to  $4,000,  and  three  put  down 
$5,000.  A  part  of  the  jury  objected  to  using  $5,000  as  one  of  the 
factors  inasmuch  as  the  plaintiffs  were  only  suing  for  $4,000.  But 
the  three  insisted  that  the)^  had  as  much  right  to  name  a  sum  above 
$4,000  as  the  others  had  to  vote  for  an  amount  less  than  that  set 
out  in  the  declaration.  The  various  amounts  were  then  added  up  and 
divided  by  twelve.  But  by  reason  of  including  the  three  items  of 
$5,000  the  quotient  was  so  much  larger  than  has  been  expected  that 
much  dissatisfaction  with  the  result  was  expressed  by  some  of  the 
jury.   Others,  however,  insisted  on  standing  by  the  bargain,  and  the 

Birchard  V.  Booth,  4  Wis.  67  (1856)  ;  Forbes  v.  Hozfard,  4  R.  I.  364  (1856)  ; 
Boynton  v.  Trumbull,  45  N.  H.  408  (1864)  ;  Sharp  v.  Kansas  City  Cable  R. 
Co.,  114  Mo.  94,  20  S.  W.  93  (1S92)  ;  Dixon  v.  Pluns,  98  Cal.  384,  33  Pac. 
268,  20  L.  R.  A.  698,  35  Am.  St.  180  (1893)  ;  Long  v.  Collins,  12  S.  Dak. 
621,  82  N.  W.  95  (1900)  ;  Ottawa  v.  Gilliland,  63  Kans.  165,  65  Pac.  252,  88 
Am.  St.  232  (1901);  Birmingham  R.,  &c.,  Co.  v.  demons,  142  Ala.  160,  37 
So.  925  (1904);  Williams  v.  Dean,  134  Iowa  216,  iii  N.  W.  931  (1907); 
International  Agr.  Corp.  v.  Abercrombie,  184  Ala.  244,  63  So.  549,  49  L.  R.  A. 

(N.    S.)    415    (1913)-      Conir:^-    Cn'^^'ppyth'7,'mfp   M     Jnvi^c.   2   Y)^\\.    (Pa)     K^,    I 

L.  ed.  287  (1790)  ;  Clclgnd  v.  Carlisle,  186  Pa.  St.  no,  40  Atl.  288  (1898),  and 
see  Bell  v.  Butler,  34  Wash.  131,  75  Fac.  130  (1904).  The  impropriety  consists 
in  iht  agreement  in  advance  to  be  bound  by  the  result.  There  is  no  impropriety 
in  taking  a  ballot  to_ arrive  at  an  average,  not  to  control  the  minds  of  the  jury 
or  forestall  their  ultimate  conclusion,  but  merely  as  a  basis  from  v.hich  to  work 
in  an  effort  to  reach  a  verdict.  Dorr  v.  Fcnno,  29  Mass.  520  (1832)  -.Jlihit^jw^ 
White^S^^yAeJVTi.)  ti  ( 1835 )  ;  Kennedy  v.  Kenncdv,  18  N.  T.  L.  450  (1842)  ; 
Tyodge  v.  Carroll,  59  N.  H.  237  (1879)  ;  Luft  v.  Lingane,  17  R.  I.  420.  22  Atl. 
942  (1891)  ;  McDonnell  v.  Pescadero,  &c..  Stage  Co.,  120  Cal.  476,  52  Pac.  725 
(1898)  ;  Groves  &  S.  R.  R.  Co.  v.  Herman,  206  111.  34,  69  N.'  E.  "36  (1003)  ; 
McElhone  v.  Wilkinson,  121  Iowa  429,  96  N.  W.  868  6903)  ;  Haaan  v.  Gibson 
Min.  Co.,  131  Mo.  App.  386,  in  S.  W.  608  (1008);  Rambo  v.  "Empire  Dist. 
P.lef.  Co.,  90  Kans.  390,  133  Pac.  553  (1913')  ;  Loy  v.  Northern  Pac.  R.  Co., 
77  Wash.  25,  137  Pac.  446  (1913) ;  Pushcart  v.  New  York  Shipbuilding  Co., 
85  N.  J.  L.  525,  89  Atl.  980  (1914). 


.J5-'  TKIAL 

protcstiiii::  jurors  finall}-  yioUlcil  to  llio  .'u\q;timonl  that  tlicy  were  bound 
by  the  prc\  ic^is  agreement,  and  llie  (juotient:  verdict  was  rendered 
accordinjjly. 

The  defendant  further  allcp^cd  in  his  motion  that  the  jurors  re- 
fused to  file  an  affidavit,  but  stated  that  they  were  wilhng  to  testify 
to  the  facts  allej^eil,  provided  the  court  thouglit  it  proper  that  they 
sliould  do  so.  At  tlie  liearing-  of  the  motion  one  of  the  jurors  was 
sworn  as  a  witness,  but  the  court  refused  to  allow  him  to  testify  on 
the  ground  that  a  juror  was  incompetent  to  imjieach  his  own  verdict. 
The  ruling  was  affirmed  by  the  Court  of  Appeals.  206  Fed.  263.  The 
case  was  then  brought  here  by  writ  of  error.'^- 

Though  Rev.  Stat.,  par.  914,  does  not  make  North  Carolina  deci- 
sions controlling  in  the  federal  court  held  in  that  state,  we  recognize 
the  same  public  policy  which  has  been  declared  by  that  court,  by 
those  in  England  and  most  of  the  American  states.  For  while  by 
statute  in  a  few  jurisdictions,  and  by  decisions  in  others,  the  affida- 
vit of  a  juror  may  be  received  to  prove  the  misconduct  of  himself 
and  his  fellows,  the  weight  of  authority  is  that  a  juror  can  not  im- 
peach his  own  verdict.  The  rule  is  based  upon  controlling  consid- 
erations of  a  public  policy  which  in  these  cases  chooses  the  lesser 
of  two  evils.  When  the  affidavit  of  a  juror,  as  to  the  misconduct  of 
himself  or  the  other  members  of  the  jury,  is  made  the  basis  of  a  mo- 
tion for  a  new  trial  the  court  must  choose  between  redressing  the 
injury  of  the  private  litigant  and  inflicting  the  public  injury  which 
would  result  if  jurors  were  permitted  to  testify  as  to  what  had  hap- 
pened in  the  jury  room. 

These  two  conflicting  considerations  are  illustrated  in  the  present 
case.  If  the  facts  were  as  stated  in  the  affidavit,  the  jury  adopted  an 
arbitrary  and  unjust  method  in  arriving  at  their  verdict,  and  the 
defendant  ought  to  have  had  relief,  if  the  facts  could  have  been 
proved  by  witnesses  who  were  competent  to  testify  in  a  proceeding 
to  set  aside  the  verdict.  But  let  it  once  be  established  tliat  verdicts 
solemnly  made  and  publicly  returned  into  court  can  be  attacked  and 
set  aside  on  the  testimony  of  those  w4io  took  part  in  their  pub- 
lication and  all  verdicts  could  be,  and  many  would  be,  followed  by 
an  inquir}^  in  the  hope  of  discovering  something  which  might  invali- 
date the  finding.  Jurors  would  be  harassed  and  beset  by  the  defeated 
party  in  an  effort  to  secure  from  tliem  evidence  of  facts  which  might 
establish  misconduct  sufficient  to  set  aside  a  verdict.  If  evidence  thus 
secured  could  be  thus  used,  the  result  would  be  to  make  what  was 
intended  to  be  a  private  deliberation,  the  constant  subject  of  public 
investigation — to  the  destruction  of  all  frankness  and  freedom  of 
discussion  and  conference. 

The  rule  on  the  subject  has  varied.  Prior  to  1785  a  juror's  testi- 
mony in  such  cases  was  sometimes  received  though  always  with  great 
caution.  In  that  year  Lord  Mansfield,  in  Vaise  v.  Delaval,  i  T.  R. 
II,  refused  to  receive  the  affidavit  of  jurors  to  prove  that  their  ver- 
dict had  been  made  by  lot.     That  ruling  soon  came  to  be  almost 


"A  portion  of  the  opinion  holding  that  the  federal  court  was  not  con- 
trolled by  the  North  Carolina  decisions  is  omitted. 


m'dONALD  &C.  guaranty  CO.  V.  PLESS  453 

universally  followed  in  England  and  in  this  country.  Subsequently, 
by  statute  in  some  states,  and  by  decisions  in  a  few  otliers,  the 
juror's  affidavit  as  to  an  overt  act  of  misconduct,  which  was  capable 
of  being  controverted  by  other  jurors,  was  made  admissible.  And, 
of  course,  the  argument  in  favor  of  receiving  such  is  not  only  very 
strong  but  unanswerable — when  looked  at  solely  from  tlie  stand- 
point of  the  private  party  who  has  been  wronged  by  such  miscon- 
duct. The  argument,  however,  has  not  been  sufficiently  convincing 
to  induce  legislation  generally  to  repeal  or  to  modify  the  rule.  For, 
while  it  may  often  exclude  the  only  possible  evidence  of  misconduct, 
a  change  in  the  rule  "would  open  the  door  to  the  most  pernicious  arts 
and  tampering  with  jurors."  "The  practice  would  be  replete  with 
dangerous  consequences."  "It  would  lead  to  the  grossest  fraud  and 
abuse"  and  "no  verdict  would  be  safe."  Cluggage  v.  Swan,  4  Birm. 
(Pa.)  155  ;jStraker  v.  Graham,  4  M.  &  W.  721. 

There  are  only  three  instances  in  which  the  subject  has  been 
before  this  court.  In  United  States  v.  Reid,  12  How.  (U.  S.)  361, 
366,  the  question,  though  raised,  was  not  decided  because  not  neces- 
sary for  the  determination  of  the  case.  In  Clyde  Mattox  v.  United 
States,  146  U.  S.  140,  148,  such  evidence  was  received  to  show 
that  newspaper  comments  on  a  pending  capital  case  had  been  read 
by  the  jurors.  Both  of  those  decisions  recognize  that  it  would  not 
be  safe  to  lay  down  any  inflexible  rule  because  there  might  be  in- 
stances in  which  such  testimony  of  the  juror  could  not  be  excluded 
without  "violating  the  plainest  principles  of  justice."  This  might 
occur  in  the  gravest  and  most  important  cases ;  and  without  at- 
tempting to  define  the  exceptions,  or  to  determine  how  far  such  evi- 
dence might  be  received  by  the  judge  on  his  own  motion,  it  is  safe 
to  say  that  there  is  nothing  in  the  nature  of  the  present  case  war- 
ranting a  departure  from  what  is  unquestionably  the  general  rule, 
that  the  losing  party  can  not,  in  order  to  secure  a  new  trial,  use  the 
testimony  of  jurors  to  impeach  their  verdict.  The  principle  was  rec- 
ognized and  applied  in  Hyde  v.  United  States,  225  U.  S.  347,  which, 
notwithstanding  an  alleged  difference  in  the  facts,  is  applicable  here." 

"Accord:  Price  v.  Warren,  i  H.  &  M.  (Va.)  385  (1807)  ;  Dana  v.  Tucker, 
4  Johns.  (N.  Y.)  487  (1809)  ;  Cluggage  v.  Swan,  4  Binn.  (Pa.)  150,  5  Am. 
Dec.  400  (1811)  ;  Hindle  v.  Birch,  8  Taunt.  26  (1817)  ;  Straker  v.  Graham,  4 
M.  &  W.  721  (1839)  ;  Cain  V.  Cain,  I  B.  Mon.  (Ky.)  213  (1841) ;  Burgess  v. 
Langley,  5  Man.  &  G.  721  (1843)  ;  Clum  v.  Smith,  5  Hill  (N.  Y.)  560  (1843)  ; 
Cook  V.  Castner,  63  Mass.  266  (1852)  ;  Smith  v.  Ciilbertson,  9  Rich  L. 
(S.  Car.)  106  (1855);  Pleasants  v.  Heard,  15  Ark.  403  (1855);  Hester  v. 
State,  17  Ga.  130  (1855)  ;  Green  v.  Bliss,  12  How.  Pr.  (N.  Y.)  428  (1856)  ; 
Tucker  v.  South  Kingston,  5  R.  I.  558  (1859)  ;  McCray  v.  Stewart,  16  Ind. 
377  (1861)  ;  Merriman's  Appeal,  108  Mich.  454,  66  N.  W.  372  (1896)  ;  Purcell 
V.  Southern  R.  Co.,  119  N.  Car.  728,  26  S.  E.  161  (1896)  ;  Sttill  v.  Stull,  197 
Pa.  243,  47  Atl.  240  (1900)  ;  Eversole  v.  White,  112  Ky.  193,  65  S.  W.  442, 
23  Ky.  L.  1435  (1901)  ;  Chicago  v.  Saldman,  225  111.  625,  80  N.  E.  349  (1907)  ; 
Soens  V.  Chicago,  &c.,  Coal  Co.,  160  111.  App.  467  (1911)  ;  Red  fern  v.  Thomp- 
son, ID  Ga.  App.  550,  73  S.  E.  949  (1911)  ;  Pullman  Co.  v.  Finlev,  20  Wyo. 
456,  125  Pac.  380  (1912)  ;  Blodgett  v.  Park,  76  N.  H.  435,  84  Atl.  42  (1912)  ; 
Romans  v.  McGinnis,  156  Ky.  205,  160  S.  W.  928  (1913)  ;  Baxter  v.  Beckwith, 
25  Colo.  App  322,  137  Pac.  901  (1914);  Glockner  v.  Jacobs,  40  Okla.  641, 
140  Pac.  142  (1914)  ;  Hurlburt  v.  Leachman,  126  Minn.  180,  148  N.  W.  51 
(1914).    Contra:  Crawford  v.  State,  2  Yerg.   (Tenn.)   60,  24  Am.  Dec.  467 


454  TRIAL 

The  su,c:,c:c^tion  that,  If  this  be  the  true  rule,  then  jurors  could 
not  bo  wilucsscs  in  criminal  cases,  or  in  contempt  i)rocccding 
brous^ht  to  inmish  the  wrongdoers  is  witliont  founchition.  For  the 
principle  is  limited  to  those  instances  in  which  a  private  party  seeks 
to  use  a  juror  as  a  witness  to  impeach  the  verdict. 

Judgment  afilirnied. 


r 


ROBERTS  V.  HUGHES. 
Court  of  Exchequer,  1841. 

7  M.   &  W.  399- 


This  was  an  action  tried  before  the  under-sheriff  of  Merioneth- 
shire, in  which  the  plaintiff  had  a  verdict  for  15/  6s.  Jervis  had 
obtained  a  rule  msi  to  enter  a  verdict  for  the  defendant,  or  for  a 
new  trial,  on  the  ground  that  the  verdict  had  been  entered  for  the 
plaintiff  by  a  mistake  of  the  under-sheriff. 

R.  F.  Richards,  in  showing  cause,  proposed  to  read  an  affidavit 
of  one  of  the  jurors,  as  to  what  had  passed  on  the  delivery  of  their 
verdict.  Jervis  objected. 

Per  Curiam.  The  rule  does  not  exclude  jurymen  from  swear- 
ing to  what  took  place  in  open  court,  but  only  as  to  what  took  place 
in  their  private  room,  or  the  grounds  on  which  they  found  their 
verdict. 

The  affidavit  was  accordingly  read  and  ultimately  the  rule  w-as 
made  absolute  for  a  new  trial.''* 


(1821);  Wright  V.  Illinois  &  M.  Tel.  Co.,  20  Iowa  195  (1866);  Perry  y. 
Bailey,  12  Kans.  539  (1874).  The  majority  view  is  severely  criticized  in 
4  Wigmore  on  Evidence,  §  2346  et  seq.  For  statutory  modifications  see  2 
Thompson  on  Trials  (2  ed.),  §  2627.  Affidavits  of  jurors  may  be  received 
in  support  of  their  verdict.  Dana  v.  Tucker,  4  Johns.  (N.  Y.)  487  (1809)  ; 
Hix  v.  Drnrv,  5  Pick.  (Mass.)  296  (1827)  ;  Smith  v.  Eames,  4  111.  76  (1841)  ; 
Hutcliinson'v.  Consumers  Coal  Co.,  36  N.  J.  L.  24  (1872)  ;  Davis  v.  Huber 
Mfg.  Co.,  119  Iowa  56,  93  N.  W.  78  (1903)  ;  Birmingham,  &c.,  Co.  v.  Clem- 
mons,  142  Ala.  160,  37  So.  925  (1904)  ;  McGlone  v.  Hanger,  56  Ind.  App.  243, 
104  N.  E.  116  (1914). 

'^Accord:  Cogan  v.  Ebden,  I  Burr.  383  (i757)  ;  Jackson  v.  Dickenson, 
15  Johns.  (N.  Y.)  309  (1818);  Prussel  v.  Knowles,  4  How.  (Miss.)  90 
(1839);  Dalrymple  v.  Williams,  63  N.  Y.  361,  20  Am.  Rep.  544  (1875); 
Dayton  v.  Church,  7  Abb.  N.  Cas.  (N.  Y.)  367  (1879);  Burlinghame  v. 
Central  R.  of  Minn.,  23  Fed.  706  (1885)  ;  Matt  ox  v.  United  States,  146  U.  S. 
149,  36  L.  ed.  921  (1892) ;  Werts  v.  Cincinnati,  H.  &  D.  R.  Co.,  11  Ohio  Dec. 
872  (1893)  ;  Peters  V.  Fogarty,  55  N.  J.  L.  386,  26  Atl.  855  (1893)  ;  Rush  v.  St. 
Paul  City  R.  Co..  70  Minn.  5,  72  N.  W.  733  (1897)  ;  Hempton  v.  State,  in 
Wis.  127,  86  N.  \V.  596  (1901)  ;  Hary  v.  Speer,  120  Mo.  App.  556,  97  S.  W. 
i28  (1906);  Alabama  Fuel  &  Iron  Co.  v.  Rice,  187  Ala.  458,  65  So.  402 
(1914).  In  Randall  v.  Peerless  Motor  Car  Co.,  212  Mass.  352,  99  N.  E.  221 
(1912)  it  is  said  per  RugR,  C.  J.:  "The  affidavits  of  all  the  jurors  agreeing 
to  the  same  points  were  admissible  for  the  purpose  of  showing  the  clerical 
error  occurring  after  the  deliberations  of  the  jury  had  ceased  and  the  verdict 
had  been  agreed  upon,  and  of  enabling  the  court  to  correct  it.  A  clerical  error 
in  the  statement  of  the  conclusions  of  a  jury  established  by  uncontroverted 
evidence  may  be  corrected." 


ANONYMOUS  455 

ANONYMOUS. 

Court  of  Common  Bench,  1310. 

Year  Book,  Mich.  Term  4  Ed.  II  No.  74" 

In  a  writ  of  entry  siir  disseisin  an  inquest  was  joined.  And  after 
the  inquest  was  sworn,  they  could  not  agree. 

Stanton,  J.  :"^   Good  people,  you  can  not  agree  ? 

Stanton,  J.,  to  John  Allen  •J'^  Go  and  put  them  in  a  house  until 
Monday,  and  let  them  not  eat  or  drink. 

On  that  commandment  John  put  tlnem  in  a  house  without,  etc. 
At  length,  on  the  same  day,  about  vesper-time,  they  agreed.  And 
John  went  to  Sir  Hervey  and  told  him  that  they  were  agreed.  Then 
Stanton,  J.,  gave  them  leave  to  eat.  Then  on  Monday  the  inquest 
came  and  wanted  to  give  a  verdict  in  gross.  And  Stanton,  J.,  said 
that  he  wanted  the  story  told.  So  the  inquest  told  the  story,  etc.^* 


"Selden  Society,  Year  Book  series,  vol.  IV,  p.  188. 

"Hervey  of  Stanton. 

"Apparently  the  marshal  of  the  court. 

""The  jury  after  the  proofs  are  summed  up,  unless  the  case  be  very 
clear,  withdraw  from  the  bar  to  consider  of  their  verdict;  and,  in  order 
to  avoid  intemperance  and  causeless  delay,  are  to  be  kept  without  meat, 
drink,  fire,  or  candle,  unless  by  permission  of  the  judge,  till  they  are  all 
unanimously  agreed."  3  Blackstone's  Commentaries,  375 ;  Wright  v.  Crump, 
7  Mod.  I  (1702).  St.  Germain  opposed  this  practice.  Doc.  &  Stud.  Dialogue 
II,  ch.  53.  And,  by  the  juries  act  of  33. and  34  yict.,_  ch.  yj  (1870),  §  23, 
"Jurors  after  having  been  sworn,  may,  in  the  discretion  of  the  judge,  be 
allowed  at  any  time  before  giving  their  verdict  the  use  of  a  fire  when  out 
of  court  and  be  allowed  reasonable  refreshment,  such  refreshment  to  be 
procured  at  their  own  expense."  See  notes  to  King  v.  Woolf,  I  Chitty,  401 
(1819)  ;  Smith  v.  Thompson,  I  Cow.  (N.  Y.)  221  (1823),  and  see  Reg  v. 
NeKton,  3  C.  &  K.  85  (1850). 

In  America,  while  the  furnishing  of  refreshments  and  other  necessaries 
to  the  jury  is  under  the  strict  control  of  the  court,  in  the  exercise  of  a 
sound  discretion,  O'Barr  v.  Alexander,  2,7  Ga.  195  (1867)  ;  Gaither  v.  Hascall- 
Richards  Steam  Generator  Co.,  121  N.  Car.  384,  28  S.  E.  546  (1897),  it  is 
highly  improper  for  the  court  to  coerce  the  jury  into  finding  a  verdict  by 
subjecting  them  to  severe  physical  or  moral  pressure.  Hancock  V.  Elani, 
3  Baxt.  (Tenn.)  33  (1873)  ;  Physioc  V.  Shea,  75  Ga.  466  (1885)  ;  Henderson 
V.  Reynolds,  84  Ga.  159,  10  S.  E.  734,  7  L.  R.  A.  327  (1889)  •,MiUer_v,  Miller^ 
T87  Pa.  572,  /|T  Atl.  277  (1898);  Fairbanks  v.  IVeeher,  15  Colo.  App.  268, 
62  Pac.  368  (1900). 

"And  it  has  been  held,  that  if  the  jurors  do  not  agree  in  their  verdict 
before  the  justices  are  about  to  leave  the  town,  though  they  are  not  to  be 
threatened  or  imprisoned,  the  judges  are  not  bound  to  wait  for  them,  but 
may  carry  them  around  the  circuit  from  town  to  town  in  a  cart."  Ill  Black- 
stone's  Commentaries,  376.  Accord:  Kinq  v.  Lcdinnham,  Vent.  97  (1671)  ; 
Y.  B.  19  Edw.  Ill,  Trin.  No.  22,  Rolls  ed.  p.  184;  Y.  B.  19  Lib.  Ass.  6;  Y. 
B.  41  Lib.  Ass.  II ;  2  Hale's  Pleas  of  ths  Crown,  297.  In  Spearman  v.  Wilson, 
44  Ga.  473  (1871),  it  was  held  error  for  the  court  to  state  to  the  jury  that 
if  they  did  not  bring  in  a  verdict  soon  he  would  make  arrangements  to  carry 
them  to  another  county.  Accord:  Gholston  v.  Gholston,  31  Ga.  625  (i860) 
and  see  Texas  Midland  R.  Co.  v.  Byrd,  102  Tex.  263,  115  S.  W.  1163  (1908), 
where  such  an  alleged  threat  was  not  regarded  as  intended  or  taken  seriously. 

In  civil  cases,  if  the  jurors  can  not  agree  after  being  kept  together  for 
such  a  time  as  is  deemed  reasonable  by  the  court,  the  court  may  discharge 


456  TRIM. 

HUNTIN  AND  WWE  v.  CITY  OF  DANVILLE. 

Sltkkmk  Court  of  Arrr.ALs  of  Virginia,  1896. 

93  J 'a.  200. 

F.rror  to  a  ind,!::incnt  of  the  corporation  court  of  the  city  of  Dan- 
ville, roiulcrcJ  July  15,  1893,  in  an  action  of  ejectment  wherein  the 
plaintilYs  in  error  were  the  plaintiffs,  and  the  defendant  in  error 
was  the  defendant.'" 

RiKLY,  J, :  The  fourth  bill  of  exceptions  is  in  regard  to  certain 
remarks  made  by  the  court  to  the  jury,  which,  it  is  claimed,  were 
in  the  nature  of  a  threat,  and  calculated  to  coerce  the  jury  into  ren- 
derinc^  a  verdict.  After  the  jury  had  been  considering  of  their  ver- 
dict for  a  day  and  a  half,  they  were  brought  into  court  preparatory 
to  an  adjournment  at  the  close  of  the  second  day,  and  the  usual  in- 
quiry being  made  of  them  as  to  whether  or  not  they  had  agreed 
upon  a  verdict,  they  replied  in  the  negative;  whereupon  the  court 
remarked  to  them  that  "he  wished  them  to  decide  the  case ;  that  they 
were  as  competent  to  do  it  as  any  other  jury;  that  this  was  the  sec- 
ond trial  of  the  case,  and  that  they  would  be  kept  together  until  the 
end  of  the  term  unless  they  did ;  that  the  case  was  a  perfectly  plain 
one,  and  ought  to  be  decided  in  five  minutes  after  reading  the  in- 
structions and  applying  them  to  the  facts."  It  thereupon  discharged 
them  until  the  next  morning  with  the  usual  injunction  not  to  con- 
verse with  any  one  on  the  subject.  The  record  is  silent  as  to  the 
time  that  thereafter  elapsed  before  the  verdict  was  rendered. 

The  trial  by  jury  is  a  sacred  right,  and  should  be  sedulously 
guarded.  The  jury  should  not  only  be  kept  from  all  extraneous 
influences  in  reaching  their  verdict,  but  the  court  itself  should  be 
careful  not  to  trench  upon  their  province.  A  verdict  resulting  from 
coercion  could  not  be  allowed  to  stand.^*^  It  must  be  the  untram- 
meled  "expression  of  the  concurrence  of  individual  judgments." 


them.  Richards  v.  Page,  81  IMaine  563,  18  All.  289  (1888)  ;  N.  Y.  Code  Ov. 
Proc,  §  1181 ;  Ingersoll  v.  Lansing,  51  Hun  loi,  5  N.  Y.  S.  288,  24  N.  Y.  St. 
163  (1889). 

As  to  criminal  cases  compare  People  v.  Olcott,  2  Johns.  Cas.  (N.  Y.)  301, 
1  Am.  Dec.  168  (1801);  People  v.  Goodzdn,  18  Johns.  (N'.  Y.)  187,  9  Am. 
Dec.  203  (1820)  with  Co}umQm£££llIi  V-  Cook,  6  Serg^_&_  R.  (Pa.)  577,  9 
Am.  Dec.  46;  (1822)  ;  lSfe^dv7State,~7  Forter  (Ala.;' 187  (iB^STT  Common- 
^rrnlfhv  fii-pntrirk.  T2T  Pa.  .St.  loO.  15  Atl.  466,  I  L.  R.  A.  451,  ^  Am.  ST. 
7^7(7^),  and  see  note  to  State  v.  Harris,  119  La.  298,  11  L.  R.  A.  (N.  S.) 
178  6907)  ;  People  v.  Warden,  202  N.  Y.  138,  95  N.  E.  729  (1911)- 

"Only  so  much  of  the  case  as  relates  to  the  question  of  coercion  of  the 
jury  is  printed. 

^Green  v.  Telfair,  Tl  How.  Pr.  (N.  Y.)  260  (1853);  Cranston  v.  New 
York  Central  £r  H.  R.  Co.,  103  N.  Y.  614,  9  N.  E.  500  ( 1886) ;  Southern  Ins. 
Co  V.  White,  58  Ark.  277,  24  S.  W.  42t  (1893)  ;  Mahonev  v.  San  Francisco  &  S 
M.  R.  Co.,  iio  Cal.  471,  42  Pac.  96S,  43  Pac.  518  -(1895);  MiUerv^Miller, 
187  Pa.  St.  ?72.  41  Atl.  277  Ci8r)8)  ;  Twiss  v.  Lehigh  Val.  R.  Co.,  61  App.  Div. 
"286,  70  N.  Y."S  241  (1901)  ;  hlodges  v.  O'Brien,  113  Wis.  97,  88  N.  W.  901 
("1902)  ;  Highland  Foundry  Co.  v.  iV.  Y.,  N.  H.  &  H.  R.  Co.,  199  Mass.  403,  85 
N.  E.  437  (1908). 


BUNTIN   V.    CITY   OF   DANVILLE  457 

But  while  this  is  true,  it  is  a  maxim  of  the  law  that  there  should  be 
an  end  of  litigation,  and  jurors  should  always  agree,  if  possible.  It 
is  particularly  desirable  that  they  should  agree,  if  they  can  conscien- 
tiously do  so,  where  there  has  been  one  or  more  mistrials,  as  was  tlie 
case  here.  They  should  honestly  endeavor  to  reconcile  their  differ- 
ences of  opinion,  though  not  to  the  extent  of  surrendering  their  con- 
victions. All  who  are  familiar  with  jury  trials  know  that  jurors  are 
prone  to  report  to  the  court  their  inability  to  agree,  but  not  being 
discharged,  often  render,  in  a  reasonable  time  thereafter,  a  verdict 
whose  justice  demonstrates,  as  was  the  case  here,  the  propriety  of 
the  action  of  the  court  in  keeping  them  together  longer.  It  is  the 
duty  of  the  court  to  keep  them  together  until  it  is  satisfied  that  they 
have  made  an  honest  effort  to  agree,  and  that  their  inabihty  to  do  so 
is  due  to  a  conscientious  difference  of  judgment.  Where  their  dif- 
ferences render  it  necessary,  a  reasonable  time  must  be  taken  for  the 
performance  of  the  important  duty  submitted  to  the  jury.  What  is 
reasonable  time  must  depend  upon  the  circumstances  of  each  case, 
and  be  left  in  a  very  great  measure  to  the  discretion  of  the  trial  court. 
And  unless  it  is  a  clear  case  of  an  abuse  of  such  discretion,  the  ver- 
dict, for  the  cause  we  have  been  considering,  should  not  be  dis- 
turbed.^^ And  while  we  are  of  opinion  that  the  remarks  of  the  court, 
which  are  excepted  to,  do  not  justify  the  construction  put  upon  them 
by  the  counsel,  or  the  claim  that  the  large  discretion  necessarily  re- 
posed in  the  trial  court  was  abused  in  this  instance,  yet  it  is  proper 
to  add  that  it  is  better  and  safer  to  refrain  from  any  expression  of 
opinion,  which  may  be  claimed  to  savor  of  threat  or  coercion,  as  to 
the  time  the  jury  will  be  kept  together^^  unless  a  verdict  is  sooner 
rendered. 
Affirmed.83 


^Chesapeake  &  O.  R.  Co.  v.  Cowherd,  96  Ky.  113,  27  S.  VV.  990,  16  Ky. 
L-  2,73  (1894)  ;  Chicago  City  R.  Co.  v.  Shreve,  128  III.  App.  462  (1906)  ;  Scar- 
lotta  V.  Ash,  95  Minn.  240,  103  N.  W.  1025  (1905)  ;  Dover  v.  Lockhart  Mills, 
86  S.  Car.  229,  68  S.  E.  525  (1910)  ;  Covey  v.  Rogers,  85  Vt.  308,  81  Atl.  1130 
(1912). 

^^Slater  v.  Mead,  53  How.  Pr.  (N.  Y.)  57  (1876)  ;  Terre  Haute  R.  Co.  v. 
Jackson,  81  Ind.  19  (1881)  ;  Phoenix  Ins.  Co.  v.  Moog,  81  Ala.  335,  i  So 
108  (1886)  ;  Chesapeake  &  O.  R.  Co.  v.  Barlow,  86  Tenn.  537  (1888) ;  Knapp 
V.  Chicago  &  W.  M.  R.  Co.,  114  Mich.  199  (1897)  ;  De  Jarnettc  v.  Cox,  128 
Ala.  518,  29  So.  618  (1900).  Compare  Osborne  v.  Wilkes,  108  N.  Car.  6s i 
13  S.  E.  285  (1891). 

"^Pierce  v.  Rehfuss,  35  Mich.  53  (1876);  St.  Louis  &  S.  F.  R.  Co.  v. 
Bishard,  147  Fed.  496  (1906)  ;  Karner  v.  Kansas  City  El.  R.  Co.,  82  Kans. 
842,  109  Pac.  676  (1910)  ;  St.  Louis,  L  M.  &  S.  R.  Co.  v.  Devaney,  98  Ark 
83,  135  S.  W.  802  (1911). 


45S  TRIAL 

SECTION   II.     VERDICT. 

^^^  BUNN  V.  IIOYT. 

Supreme  Couut  of  Nf.w  York,  1808. 
3  Johns.  (.V.  F.)  zss.'^a 

Rikcr  moved  to  set  aside  the  verdict  in  tliis  cause  for  irregu- 
larity. 

This  was  an  action  of  assumpsit  against  the  defendant,  as  the 
agent  of  Graham  in  the  sale  of  a  ship.  The  cause  was  tried  at  the 
last  sittings  in  New  York,  before  Mr.  Chief  Justice  Kent. 

After  the  charge  of  the  judge,  the  jury  retired  from  the  bar  to 
consider  their  verdict,  and  after  being  together  several  hours,  they 
separated,  and  the  next  morning  delivered  to  the  court  a  verdict 
sealed  up  for  the  plaintiff.  When  the  verdict  was  read,  the  counsel 
for  the  defendant  requested  that  the  verdict  might  be  taken  by  the 
polls,  and  one  of  tlie  jurors,  on  being  asked  whether  he  agreed  to 
the  verdict  as  read,  said  that  he  could  not  agree  to  it;  that  he  had 
signed  the  sealed  verdict  as  a  matter  of  accommodation,  but  he 
thought  it  unconscientious,  and  could  not  assent  to  it.  The  judge 
then  directed  the  jury  to  retire  and  reconsider  tlieir  verdict,  to  which 
the  defendant's  counsel  objected;  but  the  jury  were  sent  out  and 
after  being  absent  for  some  time,  they  gave  information  to  the  court 
that  they  could  not  agree  on  their  verdict,  upon  which  they  were  in- 
formed'by  the  direction  of  the  judge,  that  tliey  must  agree.  After 
having  been  out  several  hours,  they  returned  with  a  verdict  for  the 
plaintiff  for  the  same  damages  as  before. 

To  show  tliat  the  verdict  was  irregularly  taken  the  counsel  cited 
Trials  per  pais,  249,  310;  2  Salk.  645 ;  2  Tidd  817. 

Hopkins  and  J.  Radcliff,  contra,  were  stopped  by  the  court. 

Per  Curiam  :  There  has  been  no  irregularity  shown  to  render  it 
proper  to  set  aside  the  verdict. 

Rule  refused.^* 


'^aA  second  point  in  the  case  upon  newly  discovered  evidence  is  omitted. 

"The  practice  of  allowing  the  jury  to  seal  a  verdict  and  then  separate 
is  ver>'  general,  having  superseded  the  privy  verdict  of  the  common  law 
described  by  Blackstone,  3  Bl.  Comm.  377 ;  Dornick  v.  Rcichcnback,  ioJkr£.  & 
R,__CEiu)  84  (1823)  ;  High  v.  Johnson,  28  Wis.  72  (1871)  ;  Liiicago  v.Langlass, 
66  111.  361  (1872),  and  in  the  absence  of  a  statutory  prohibition,  the  practice  is 
permissible  in  civil  cases,  in  the  discretion  of  the  judge  without  regard  to 
the  consent  of  the  parties.  Bunker  Hill,  &c.,  Min.  Co.  v.  Schmeling,  79  Fed. 
263,  24  C.  C.  A.  564  (i8q7)  ;  Bunker  Hill,  &c.,  Min.  Co.  v.  Oberder,  79  Fed. 
726  (1897)  ;  Green  v.  Bliss,  12  How.  Pr.  (N!  Y.)  428  (1856)  ;  Anonymous,  63 
Maine  590  (1874)  ;  Kmmer  v.  Kister.  i87  Pa.  227.  ao  Atl.  1008,  44  L.  R.  A. 
432  (1898).  The  only  true  verdict  is  that  which  the  jury  announce  orally 
in  open  court  and  which  is  received  and  recorded.  .Saunders  v.  Freeman, 
Plowd  (1562)  ;  Laurence  v.  Stearns,  28  Mass.  501  (1831)  ;  Withee  v.  Rozve, 
45  Maine  571  (i8s8)  ;  Crotty  v.  Wyatt.  3  HI-  App.  388  (1879);  Suiliff  v. 
Gilbert  8  Ohio  405  (1838);  Root  v.  Sherwood,  6  Johns.  68,  5  Am.  Dec. 
191  (1810)  ;  ScoU  V.  Scott,  IIP  Pa.  387.  2  Atl.  531  1885;  Ostrander  v.  Lansing, 


BUNN   V.    HOYT  459 

III  Mich.  693,  70  N.  W.  332  (1897)  ;  Roth  V.  East.  CnnMPlhvWo  Cnho  Cn  J 
242  Pa.  23,  88  Atl.  781  (1913);  Nelson  v.  Wood,  210  Fed.  18  (1913).  The 
parties  may,  however,  consent  that  the  verdict  be  received  by  the  clerk  in 
the  absence  of  the  judge.  Diibuc  v.  Lazell,  182  N.  Y.  482  (1905)  ;  Ferrell  v. 
Hales,  119  N.  Car.  199  (1896)  ;  Owens  v.  Southern  R.  Co.,  123  N.  Car.  183, 
31  S.  E.  383,  68  Am.  St.  821  (1898)  ;  Bedal  v.  Spiirr,  zz  Minn.  207,  22  N.  W. 
390  (1885)  ;  Rigg  v.  Bias,  44  Kans.  148,  24  Pac.  56  (1890)  ;  Union  Pac.  R. 
Co.  V.  Connolly,  yy  Nebr.  254  (1906).  In  civil  cases  there  is  a  conflict  of 
opinion  as  to  whether  a  party  may  demand  a  poll  of  the  jury.  Some  juris- 
dictions have  declared  this  right  absolute.  Hubble  v.  Patterson,  i  Mo.  392 
(1823)  ;  Fox  V.  Smith,  3  Cow.  (N.  Y.)  23  (1824)  ;  Jackson  v.  Haivks,  2  Wend. 
(N.  Y.)  620  (1829)  ;  Johnson  v.  Howe,  7  111.  342  (1845)  ;  Labor  v.  Koplin, 
4  N.  Y.  547  (1851)  ;  Hancock  v.  Winans,  20  Tex.  320  (1857)  ;  Whiiev.Arclt2 
bald  S_cliQill  D^^t->  ^  P^--  County  Ct^_xjCj886)  ;  Smith  v.  Pazf77~i 33  N.  Car. 
66,  45  S.  K  348  (1903).  Elsewhere  a  poll  is  discretionary  with  the  judge. 
Ropps  V.  Barker,  21  Mass.  239  (1826);  School  Dist.  v.  Bragdon,  23  N.  H. 
507  (1851)  ;  Rutland  v.  Hawthorn,  36  Ga.  380  (1867)  ;  Whitner  v.  Hamlin, 
12  Fla.  18  (1867)  ;  Dunlop  v.  Munroe,  i  Cr.  (C.  C.)  536,  Fed.  Cas.  No.  4167 
(1809),  and  see  Humphries  v.  District  of  Columbia,  174  U.  S.  190,  43  L.  ed. 
944,  19  Sup.  Ct.  637  (1898).  In  Iowa  the  code  dispenses  with  a  poll  in  the  case 
of  a  sealed  verdict.    Dunbauld  v.  Thompson,  109  Iowa  199,  80  N.  W.  324 

(1899). 

A  verdict  defective  in  form  merely  may  be  recommitted  to  the  jury  for 
correction  whether  sealed  or  not.  Tyrrell  v.  Lockhart,  3  Blackf.  (Ind.) 
136  (1832)  ;  IVnlfrn.'^,.  v  Fy.fpr.  7  Watts.  CPal  ^8  (^RJ?.^  ;  Sutliff  V.  Gilbert,  8 
Ohio  405  (1838);  Pritchard  V.  Hennessey,  i  Gray  (Mass.)  294  (1854); 
Clark  V.  Sidway,  142  U.  S.  682  ,  35  L.  ed.  1157,  12  Sup.  Ct.  327  (1891)  ;  Clark 
V.  Lude,  63  Hun  363,  18  N.  Y.  S.  271,  43  N.  Y.  St.  607  (1892)  ;  Childs  v.  Car- 
penter, 87  Maine  114,  32  Atl.  780  (1895)  ;  Lyon  v.  Brozvn,  34  App.  Div.  323, 
54  N.  Y.  S.  315  (1898)  ;  Saxon  v.  Foster,  69  Ark.  626,  65  S.  W.  425  (1901)  : 
Wright  V.  Wright,  114  Iowa  748,  87  N.  W.  709,  55  L.  R.  A.  261  (1910); 
Hary  v.  Speer,  120  Mo.  App.  566,  97  S.  W.  228  (1906)  ;  Blake  v_..J±u.snberaeii^ 
/^  Pa^ Super.  Ct.  32  ( 191 1 )  ;  Beecher  v.  Newcomer,  46  Pa.  Super.  Ct.  ^44 
(1911)  ;  Bronstein  v.  American  Ice  Co.,  119  Md.  132,  86  Atl.  131  (1912). 

\Vhere  the  jury  have  separated  after  agreeing  to  a  sealed  verdict,  and 
on  coming  into  court  one  of  the  jurors  dissents,  it  is  generally  held,  as  in 
the  principal  case,  that  the  judge  may  send  the  jury  out  to  deliberate  further. 
Blackley  v.  Sheldon,  7  Johns.  (N.  Y.)  32  (1810) ;  Douglass  v.  Tousey,  2  Wend. 
(N.  Y.)  3-2,  20  Am.  Dec.  616  (1829)  ;  Perry  v.  Mays,  2  Bailey  (S..  Car.)  354 
(1831)  ;  Warner  v.  N'ew  York  Cent.  R.  Co.,  52  N.  Y.  437,  11  Am.  Rep.  724 
(1873)  ;  Campbell  v.  Murray,  62  Ga.  86  (1878)  ;  Devereux  v.  Champion  Cotton 
Press  Co.,  14  S.  Car.  396  (18S0)  ;  Weeks  v.  Hart,  24  Hun_(N.  Y.)  iSi 
(1881)  ;  Morgan  v.  Bell,  41  Kans.  345  (1889)  ;  Lagrone  v.  Timmerman,  46 
S.  Car.  372,  24  S.  E.  290  (1895)  ;  Frick  v.  Reynolds,  6  Okla.  638,  52  Pac.  391 
(1898)  ,  Fdce  Fisheries  Co.  v.  Pacific  Realty  Co.,  35  Wash.  535,  77  Pac.  839 
(1904)  ;  Coughlin  v.  Weeks,  75  Wash.  568,  135  Pac.  649  (1913).  Contra :  Kra- 
mer V.  Kist£t,_jS7~P^.  227,  40„Atl.  1008,  44  L.  R.  A.  432  (1898),  wheTe  it 
was  said  die  proceeding  must  be  treated  as  a  mistrial  and  the  jury  discharged. 
In  the  words  of  Mitchell,  J.:  "When  a  juror  dissents  from  a  sealed  verdict 
there  is  a  necessary  choice  of  evils,  a  mistrial  or  a  verdict  finally  delivered 
under  circumstances  that  justly  subject  it  to  suspicion  of  coercion  or  im.- 
proper  influence.  We  are  of  opmion  that  the  former  is  the  lesser  evil. 
If  one  juror  can  dissent  so  may  ail  change  their  view  and  render  a  new 
verdiot  exactly  opposite  to  the  one  they  first  agreed  upon  and  sealed."  If 
after  the  separation  of  the  jury  the  plaintiff's  attorney  has  a  conversation 
with  one  or  more  of  the  jury,  following  which  the  jurors  dissent  from  the 
sealed  verdict  and  afterwards  find  a  larger  verdict,  the  second  verdict  will 
be  set  aside.  Martin  v.  Morelock,  32  III.  485  (1863). 


DIEIIL  i:  KVAXS. 

SuPRF-ME  Court  op  Phnnsylvaxia,  1815, 
iSerg.  &  R.  (Pa.)  367 

The  iurv  empaneled  in  this  cause,  \vliich  was  an  action  for  freight 
and  clcnuiriage,  found  a  verdict  in  these  weirds:  "We  find  for  the 
plaintiiT,  and  are  of  opinion,  that  the  plaintiff  has  already  received 
(Hit  of  proiKM'ty  of  the  defendant,  payment  in  full  for  the  amount  of 
freight  to  which  he  is  entitled." 

A  motion  for  a  new  trial  was  now  made  by  Ingcrsoll,  on  behalf 
of  the  plaintiff,  on  the  ground  that  the  finding  was  too  uncertain 
to  admit  of  a  judgment  being  entered  upon  it.  He  observed  that 
the  jury  had  found  for  the  plaintiff,  but  had  assessed  no  damages. 
Thev  had  expressed  an  opinion  that  the  freight  had  been  received 
by  tiie  plaintiff  out  of  the  defendant'  property,  but  had  said  nothing 
about  clemurrage;  and  this  opinion  relates  to  a  set-off,  of  which  n(j 
notice  was  given  by  the  defendant's  pica.  If  tlie  jury  meant  to  find 
for  the  defendant,  they  ought  to  have  said  so.  He  cited  i  Ld.  Raym. 
324;  7  Bac.  Ab.  37,  Verd.  R. 

Levy,  for  the  defendant,  said  that  if  the  court  could  collect  the 
meaning  of  the  jury  from  the  whole  verdict  it  was  sufficient,  i  Dal). 
462;  Hob.  54;  I  Salk.  328;  2  Burr.  700;  Cro.  EUz.  854,  pi.  16. 

In  this  case,  the  jury  having  found  (for  an  opinion  of  a  jury  is 
a  finding)  that  the  plaintiff  had  received  payment  in  full  for  the 
freight,  out  of  the  property  of  the  defendant,  their  assessing  no 
damages  is  a  plain  indication  that  they  meant  it  is  a  finding  for  the 
defendant. 

TiLGHMAN,  C.  J. :  The  plaintiff's  declaration  sets  forth  a  claim 
for  freight  and  demurrage.  The  jury,  after  being  long  out,  and 
having  declared  to  the  court  that  they  found  great  difficulty  in  com- 
ing to  an  agreement,  at  length  brought  in  a  verdict  as  follows :  "We 
find  for  the  plaintiff,  and  are  of  opinion  that  the  plaintiff  has  already 
received,  out  of  the  property  of  the  defendant,  payment  in  full  for 
the  amount  of  freight  to  w^iich  he  is  entitled."  This  is  certainly  an 
extraordinary  verdict  and  not  easily  understood.  I  agree  that  if  there 
be  substance,  it  is  sufficient ;  the  court  will  mould  it  into  form.  But 
what  did  the  jury  intend?  Did  they  mean  to  find  for  the  plaintiff 
generally,  both  as  to  freight  and  demurrage?  If  so,  the  verdict  is 
imperfect,  because  they  have  found  no  particular  sum,  nor  have 
they  said  that  the  demurrage  has  been  paid.*^  Perhaps  they  intended 

"A  verdict  must  be  responsive  to  all  the  issues  made  by  the  pleadings. 
Miller  V.  Trets,  i  Ld.  Raym.  324  (1697)  ;  Smith  v.  Raymond,  I  Day  (Conn.) 
189  (1804)  ;  Middlcton  v.  Quiglcy,  12  N.  J.  L.  352  (1831)  ;  Crouch  v.  Martin, 
3  Blackf.  (Ind.)  256  (1833)  ;  McCoy  v.  Rives,  9  Miss.  592  (1844)  ;  Moore  v. 
Moore,  67  Tex.  293,  3  S.  W.  284  (1887)  ;  Hackctt  v.  Jones,  34  111.  App.  562 
(1889)  ;  Phoenix  I.  Co.  v.  Maryland  G.  M.  Co.,  146  Fed.  501  (1906)  ;  Spina- 
pont  V.  Vogel  Co.,  81  Misc.  (N.  Y.)  127,  142  N.  Y.  S.  177  (1913)  ;  IVaco 
Cement  Stone  Works  v.  Smith  (Tex.  Civ.  App.),  162  S.  W.  1158  (1913); 
Smith  V.  Smith,  141  Ga.  629,  81  S.  E.  895  (1914)- 

Where  a  money  judgment  is  sought,  a  verdict  that  fails  to  find  a  sum 
>vith  sufficient  definiteness  to  permit  the  entry  of  judgment  is  bad.   Miller  v^ 


DIEHL   V.    EVANS  4^1 

to  find  for  the  defendant  as  to  the  demurrage,  and  I  think  it  most 
probable  they  did.  But  then  why  not  find  generahy  for  the  defend- 
ant? For  if  the  plaintiff  was  entitled  to  freight  only,  and  had  re- 
ceived full  payment  for  that  freight,  the  verdict  ought  to  have  been 
for  the  defendant.  There  seems  then  to  be  some  mystery  in  the  busi- 
ness. The  jury  could  not  agree,  and  appear  to  have  come  to  a  com- 
promise among  themselves.  When  I  consider  this,  and  perceive  that 
they  have  only  given  their  opinion  that  the  plaintiff  has  received 
payment  for  his  freight,  I  am  not  satisfied  that  they  unanimously 
intended  to  find  absolutely  for  the  defendant.  An  opinion  is  not  a 
legal  verdict.  The  finding  must  be  positive.^*^  With  all  the  inclination, 
therefore,  which  I  feel  to  give  effect  to  a  verdict,  after  a  full  trial  on 
the  merits,  I  can  not  say  that  the  intention  of  the  jury  is  expressed 
with  sufficient  certainty  to  authorize  the  court  to  enter  judgment  for 
the  defendant.  I  am,  therefore,  of  opinion  that  there  should  be  a  new 
trial. 

Yeates,  J. :  It  Is  the  duty  of  a  court  to  mould  a  verdict  into  legal 
form,  where  the  intention  of  the  jury  is  plain  and  clear.  But  this 
can  not  be  done  in  the  present  instance. 

The  finding  here  is  not  only  imperfect,  but  contradictory.  The 
jury  have  found  for  the  plaintiffs,  but  have  ascertained  no  sum  in 
damages.  They  declare  merely  their  opinion  that  the  plaintiffs  have 
received  the  amount  of  the  freight,  but  are  wholly  silent  as  to  the 
demurrage,  which  was  one  of  the  grounds  of  action.  It  is  absolutely 
impossible  to  render  judgment  on  this  verdict.  It  must,  therefore,  be 
set  aside  and  a  new  trial  awarded. 

Brackenridge,  J.,  concurred. 

New  trial  awarded.®' 


//owgr,  2  Rawle  (Pa.)  .q.l  (iggp)  ;  Neville  v.  Northcidt,  y  Coldw.  (Tenn.)  294 
(1869)  ;  IVaison  v.  Damon,  54  Cal.  278  (1880).  But  where  the  amount  is  not 
in  issue  a  verdict  in  favor  of  a  party  without  assessing  damages  has  been  held 
sufficient.  Bell  v.  Old,  88  Ark.  99,  113  S.  W.  1023  (1908)  ;  Hall  v.  Bank  of 
Emporia,  133  111.  234  (1890). 

^'Heyward  v.  Bennett,  3  Brev.  (S.  Car.)  113  (1813)  ;  Jewett  v.  Davis,  6 
N.  H.  518  (1834)  ;  Knox  v.  Breed,  12  111.  61  (1850)  ;  Day  v.  Webb,  28  Conn. 
140  (1859)  ;  BrucLv.  Mausburv.  102  Pa.  St.  .'l';  (1882)  ;  Cotirey  v.  Metropolitan 
St.  R.  Co.,  73  App.  Div.  518,  77  N.  Y.  S.  222  (1902)  ;  Gray's  Harbor  Boom  Co. 
v.  Lytle  Logging,  &c.,  Co.,  38  Wash.  88,  80  Pac.  271  (1905)  ;  Stevens  v.  Walker, 
99  Maine  43,  58  Atl.  S3  (1904)  ;  Nicholson  v.  Maine  Cent.  R.  Co.,  100  Maine 
342,  61  Atl.  834  (1905),  accord. 

"In  Patterson  v.  United  States,  2  Wheaton  221,  4  L.  ed.  224  (1817),  it  is 
said,  per  Washington,  J. :  "A  verdict  is  bad  if  it  varies  from  the  issue  in  a 
substantial  matter,  or  if  it  find  only  a  part  of  that  which  is  in  issue.  The 
reason  of  the  rule  is  obvious;  it  results  from  the  nature  and  the  end  of  the 
pleading.  Whether  the  jury  find  a  general  or  a  special  verdict,  it  is  their  duty 
to  decide  the  very  point  in  issue ;  and,  although  the  court  in  which  the  cause  is 
tried  may  give  form  to  a  general  finding,  so  as  to  make  it  harmonize  with  the 
issue,  yet,  if  it  appears  to  that  court,  or  to  the  appellate  court,  that  the  finding 
is  different  from  the  issue,  or  is  confirmed  to  a  part  only  of  the  matter  in 
issue,  no  judgment  can  be  rendered  upon  the  verdict.  It  is  true  that  if  the 
jury  find  the  issue,  and  something  more,  the  latter  part  of  the  finding  will 
be  rejected  as  surplusage;  but  this  rule  does  not  apply  to  a  case  where  the 
facts  found  in  th.e  verdict  are  substantially  variant  from  those  which  are  in 
issue."  Where  the  issue  is  correctly  found  surplusage  may  be  disregarded  by 
the  court.    Cavene  v.  Michael.  8  Serg.  &  R.    (Pa.)    441    (1822):   Fisher  v. 


462  TRIAL 

PECK  f.  SNYDER. 
SuPKEME  Court  of  IMiciiigan,  1864. 

13  Midi.  21. 

Assumpsit  to  recover  damages  for  not  building  a  house  and  barn 
according  to  contract.  After  the  charge  to  the  jury,  defendant's 
counsel  asked  the  court  to  direct  the  jury  to  find  specially  and  return 
such  finding  with  their  verdict  upon  these  two  questions:  ist. 
Whether  when  plaintiff  paid  defendant  the  balance  of  the  contract 
price  and  took  possession  he  had  not  full  knowledge  that  the  house 
and  barn  were  not  constructed  according  to  contract.  2nd.  Whether 
the  defendant  was  guilty  of  any  fraud  by  concealing  the  facts  re- 
specting said  building.  The  court  refused  so  to  direct  the  jury.  De- 
fendant excepted.^^ 

]\Iartin,  C.  J. :  I  can  see  but  one  exception  taken  below,  to 
which  our  attention  can  be  directed,  and  that  is  to  the  refusal  of  the 
judge  to  direct  the  jury  to  find  specially  upon  certain  questions,  in 
case  they  found  a  general  verdict.  This  is  a  novel  request.  A  jury 
may  find  a  general  or  a  special  verdict,  according  to  the  exigencies  of 
the  case ;  but  a  judge  can  not  direct  or  compel  them  to  do  either  and 
more  particularly,  not  to  give  reasons  for  a  general  finding.^^ 

Affirmed. 


Kean,  i_^\Vatt&  {Pa.)  259-  (1832) ;  ^^^h  V-  Sensemqjj?,o  Pa.  St.  52p>  24  Atl. 
748' (1892).  ~~~  ^  , 

A  verdict  is  not  final  until  recorded.  Rottnmnd  v.  Pennjylvnma  R  Co., 
225  Pa.  410,  74  Atl.  341  (1910),  hence  the  jury  may  amendtheir  verdict  so  as 
t^  put  Tt  in  form  before  they  separate.  Warner  v.  Railroad  Co.,  52  N.  Y.  437, 
II  Am.  Rep.  724  (1873);  Griffin  v.  Lamed,  in  111.  432  (1884);  Pe^er^. 
P/Lt7arfe/^/!ta,_ij.4j'a^St_96^  6A.tl._899  (1886).  And  the  court  may  recommit 
the  verdict  to  the  jury  to  Be  reformed.  Crocker  v.  Hoffman,  48  Ind.  207 
(1874)  ;  Produce  Exchange  v.  Bicbcrhach,  176  Mass.  577,  58  N.  E.  162  (igoo)  ; 
Black  V.  Griggs,  74  Conn.  582,  51  Atl.  523  (1902);  Cohen  v.  Traction  Co., 
141  Iowa  469,  119  N.  W.  964  (1909)  ;  Bronstein  v.  American  Ice  Co.,  119 
Md.  132,  86  Atl.  131  (1912)  ;  Seaboard  A.  L.  R.  v.  Howe,  139  Ga.  429,  77 
S.  E.  387  (1Q13)  ;  Harris  v.  Hipsley,  122  Md.  418,  89  Atl.  852  (1914)  ;  Grand 
Rapids  &  Indiana  R.  Co.  v.  Oliver,  181  Ind.  145,  103  N.  E.  1066  (1914)- 
And  so  the  court  itself,  if  the  intention  of  the  jury  can  be  clearly  ascertained, 
may  carry  into  effect  its  findings  by  amending  the  verdict  so  as  to  make  it 
conform  to  such  intention.  Richardson  v.  Mellish,  3  Bingh.  334  (1825); 
Parks  V.  Turner,  12  How.  (U.  S.)  39,  13  L.  ed.  883  (1851)  ;  Kaon  v.  Insurance 
Co.,  104  U.  S.  106,  26  L.  ed.  670  (1881)  ;  Erie  .City  InmJVorks  \.  BarjwuAO^ 
Pa,^t,l25,_jj[j\m^^p^  508  (1884),  and^see  act  of  March  14,  1872,  Pub.  L. 
'zfTlJ^^iWirevTvrTPliodstown,  48  N.  J.  L.  588,  7  Atl.  301  (1886)  ;  Hodgktns 
V.  Mead,  119  N.  Y.  166,  23  N.  E.  559  (1890)  ;  Italian-Swiss  Agricultural  Colony 
V.  Pease,  194  111.  98,  62  N.  E.  317  (1901)  ;  Minot  v.  Boston,  201  Mass.  10,  86  N. 
E.  783  (1909)  ;  Wirt  v.  Rcid,  138  App.  Div.  760,  123  N.  Y.  S.  706  (1910)  ;  Parkin 
\^_Sai£_DepositBankjJAjSs^3]i^J^CA^^  '•  Kilgas  v.  Wayne  Co.,  85  N. 

J.  L.  35i,~^rAtl.  1656  ( 1913) .  But  a  verBict  will  not  be  altered  unless  it 
clearly  appears  that  the  alteration  will  be  in  accordance  with  the  intention  of 
the  jur>'.  Spencer  v.  Goter,  l  H.  Bl.  79  (1788)  ;  Edwards  v.  McCaddon,  20 
Iowa  520  {1866). 

"The  statement  of  facts  is  abridj^ed  and  part  of  the  opinion  omitted. 

"A  verdict  is  general  if,  in  a  criminal  case,  the  jury  find  the  defendant 
guilty  or  not  guilty,  or  if  in  a  civil  case,  they  find  for  the  plaintiff  and  state 


^ 


HAMBLETON    V.    DEMPSEY  463 

HAMBLETON  v.  DEMPSEY. 

Supreme  Court  of  Ohio,  185 i. 
20  Ohio  168. 


Assumpsit  by  Dempsey  and  Co.  to  recover  money  paid  by  them 
to  Hambleton  as  treasurer  of  Lawrence  county,  upon  a  tax  demand- 
ed by  him  and  denied  by  them  to  be  legal.  The  money  was  paid 
over  to  the  treasurer  under  protest. 

The  cause  was  submitted  to  a  jury  at  the  May  term,  1851,  who 
returned  into  court  their  verdict,  as  follows : 

"We,  the  jury,  find  that  in  case  the  court,  upon  the  foregoing 
statement  of  facts,  should  be  of  opinion  that  the  law  of  the  case  was 
with  the  plaintiffs,  that  then  we  find  for  the  plaintiffs,  and  that  the 
said  defendant  did  assume  and  promise,  etc.,  and  we  assess  the  dam- 
ages of  the  said  plaintiffs  at  $185.65.  But  in  case  that  the  court, 
upon  the  foregoing  statement  of  facts,  should  be  of  opinion  that 
the  law  of  the  case  is  with  the  defendant,  then  we,  the  jury,  find 
for  the  defendant ;  and  that  the  said  defendant  did  not  assume  and 


the  damages,  if  anv,  or  find  for  the  defendant.    For  form  see  Morrissey  v. 
Schindlcr,  8  Nebr.  672,  26  N.  W.  476  (1886). 

A  special  verdict  states  the  facts  as  found  by  the  jury  and  prays  the 
advice  of  the  court  thereon,  conchiding  conditionally,  that  if  upon  the  whole 
matter  the  court  shall  be  of  opinion  that  the  issue  ought  to  be  found  for  the 
plaintiff,  then  they  find  for  the  plaintiff  and  assess  the  damages  accordingly, 
and  if  otherwise,  then  they  find  for  the  defendant.  Co.  Litt.  228,  III  Bl. 
Comm.  2>77',  Viner's  Abr.  Trial,  U.  f . ;  Wallinnford  V.  Dunlapji^  Pa,  St.  31 
(1850) ;  Mum  ford  V.  Wardzvell,  72>  U.  S.  423,  18  L.  ed.  756  (iSStJT  ~ 

At  common  law  the  jury  was  liable  to  be  attainted  for  a  false  verdict 
(the  writ  was  not  abolished  until  1825,  Statute  6  Geo.  IV,  ch.  50,  §  60). 
To  relieve  jurors  from  this  difficulty  it  was  enacted  by  the  statute  of  West- 
minster, II  (13  Edw.  I,  ch.  30,  §  2),  that  "the  justices  assigned  to  take 
assizes  shall  not  compel  jurors  to  say  precisely  whether  it  be  disseisin,  or  not, 
so  that  they  do  show  the  truth  of  the  deed,  and  require  aid  of  the  justices. 
But  if  they  of  their  own  head  will  say  that  it  is  disseisin,  their  verdict  shall  be 
admitted  at  their  own  peril."  Upon  this  statute  rests  the  practice  of  finding 
special  verdicts.  Tidd's  Practice,  897.  But  while  the  court  could  request  or 
advise  the  jury  to  find  specific  facts,  it  could  not  direct  a  special  verdict,  the 
jury  being  at  liberty  to  judge  for  themselves  whether  they  would  find  a 
general  or  a  special  verdict.  Cooley's  Constitutional  Limitations  (7th  ed.)  461 ; 
Mayor  of  Devizes  v.  Clark,  3  Ad.  &  El.  506  (1835)  ;  Jameson  Trial,  6  Yale 
Law  J.  32  (1896)  ;  ChavihersJS..  Davis.  -^  Whart.  (Pa.>  40  (1837)  ;  Fuller  v. 
Kennebec  Mut.  Ins.  Co.,  31  Maine  325  (1850)  ;  Underwood  v.  People,  32  Mich. 
I,  20  Am.  Rep.  633  (1875)  ;  Foster  v.  Johnson,  70  Ala.  249  (1881)  ;  Baltimore _ 
&OjR-  Co.  v,_S  III  t>hiir 'springs,  S.  D.,  96  Pa.  65,  42  Am.  Rep.  529  (1S82). 
The  iorm  of  verdict  and  the  practice  ot  submittmg  specific  questions  of  fact 
to  the  jury  is  now  generally  regulated  by  statute.  See  Clementson  on  Special 
Verdicts,  38  Cyc.  1909;  Childress  v.  Lake  Erie  &  IV.  R.  Co.,  182  Ind.  251, 
105  N.  E.  467  (I9I4)._  Since  the  decision  of  the  principal  case  it  has  been  pro- 
vided by  statute  in  Michigan  that  the  jury  in  addition  to  their  general  verdict 
may  be  required  to  answer  five  specific  questions,  put  to  them  by  the  court 
on  request  of  counsel.  Comp.  L.  Mich.  (1897)  vol.  3,  §  10237;  Hendrickson 
v.  Walker,  22  Mich.  68  (1875)  ;  Ziicker  v.  Karpeles,  88  Mich.  413,  50  N.  W. 
373  (1891)  ;  Rathbim  v.  Parker,  113  Mich  594,  72  N.  W.  31  (1897)  ;  Beaiidin 
V.  Bay  City,  136  Mich.  2>2,Z,  99  N.  W.  285  (1904). 


464  TRTAL 

proini^o,  in  inannor  ami  form,  as  the  said  plaintiffs  hath  above  there- 
of allcs::cil  aj^ainst  liiin."  i\nd  thcrcuiion  the  court  took  the  matter 
uiuler  advisement  to  the  term  of  Sei)temhcr,  185 1,  and  then  declared 
its  opinion  that  the  said  ]^laintilTs  were  entitled  to  recover,  and  ren- 
dered judgiuent  upon  said  special  linding  of  facts,  in  favor  of  said 
jilaintilYs  and  against  said  defendant  below,  for  the  sum  of  $185.65, 
and  interest  from  the  first  day  of  last  term.  To  w^hich  opinion  of  the 
court  rendering  said  judgment,  etc.,  the  defendant  excepted. 

The  foregoing  "statement  of  facts,"  referred  to  by  the  jury, 
seems  to  have  been  the  items  of  testimony,  written  and  oral,  pro- 
duced on  the  trial  of  the  parties  respectively,  but  the  facts  are  not 
embodied  in  tlie  verdict  and  are  only  found  in  the  bill  of  exceptions. 

The  writ  of  error  is  prosecuted  to  reverse  the  judgment  of  the 
common  pleas,  and  errors  are  duly  assigned."" 

Spalding,  J. :  We  have  no  hesitation  in  reversing  the  judgment 
of  the  court  of  common  pleas. 

The  verdict  neither  finds  the  issue  nor  the  facts  upon  which  the 
court  may  pronounce  the  finding  as  a  conclusion  of  law.  The  stat- 
ute provides  that  "no  jury  shall,  in  any  case,  be  compelled  to  give 
in  a  general  verdict,  so  that  they  find  a  special  verdict  and  show  the 
truth  of  the  fact,  and  require  the  aid  of  the  court." 

Here  they  found  no  one  fact  to  be  true,  bur  have  simply  referred 
the  court  to  the  evidence,  and  told  them  if  upon  that  evidence  they 
are  of  opinion  the  law  of  the  case  is  with  the  plaintiffs,  then  the  jury 
find  for  the  plaintiffs,  etc.  It  is  the  game  of  "hide  and  go  seek" 
between  the  court  and  jury.  The  evidence  is  laid  before  the  jury  and 
they  are  told  to  find  the  facts.  The  jury  lay  the  same  evidence  be- 
fore the  court  and  tell  them  to  find  the  facts  and  law  together.  Such 
practice  as  this  we  can  not  sanction.  The  parties  are  disposed  to 
treat  this  as  a  special  verdict.  One  of  the  best  special  pleaders  in 
this  or  any  other  country,  has  laid  down  the  rule  governing  this  sub- 
ject, in  this  wise:  "If  in  a  special  verdict,  the  jury  find  only  the 
evidence  of  a  material  fact,  instead  of  the  fact  itself,  or  otherwise 
omit  to  find,  upon  such  a  fact,  either  way,  no  judgment  can  be  ren- 
dered upon  the  finding  for  either  party,  since  a  matter  of  fact,  essen- 
tial to  the  determination  of  the  cause,  is  left  unascertained  by  the 
verdict."  Gould's  Pleading,  chapter  10,  section  62. 

Reversed.®^ 


•"The  statement  of  facts  is  abridped  and  the  arguments  of  counsel  and 
part  of  the  opinion  of  the  court  omitted. 

"Accord:  Holland  v.  Fisher,  O.  Bridpman  188  (1662);  Rex.  v. 
Huggins,  Ld.  Raym.  1574  (1730);  Fen_v^3lancliard,  2  Yeates__(.Pa.)  543 
(1800)  ;  Tiinnell  v.  Watson.  2  MunfTTVa)  283I1811);  Bxittsv.  Bilhe,  4 
Price  240  (1817);  Barnes  v.  Williams,  il  Wheat.  (U.  S.)  415,  6  L.  ed.  508 
(1826)  :  Seziard  v.  Jackson,  8  Cow.  (N.  Y.)  406  (1826)  ;  Hill  v.  Covell,  i  N.  Y. 
S22  (1848);  Thayer  v.  United  Brethren,  20  Pa.  St.  60  (1852);  Williams  v. 
'liillis,  7  AbbrTrTTNTY.)  90  (1858)  ;  Garfield  v.  7\  night's  ferry,  &c.,  Water 
Co.,  17  Cal.  511  (1861)  ;  Dixon  v.  Duke,  85  Ind.  434  (1882)  ;  Hodges  v.  Easton, 
106  U.  S.  408,  I  S.  Ct.  307  (1882)  ;  Boyer  v.  Robertson,  144  Ind.  604,  43  N.  E. 
879  (1895);  .Standard  S.  M.  Co.  v.  Ro\al  Ins  Co.,  201  Pa^Jy^^^  Atl.  354 
(1902)  ;  NiclwTson  v.  Maine  Cent.  R.  Co.,  100  Maine  342,  bl  Atl.  834  (1905)  ; 
Reffke  V.  Paper  Co.,  136  Wis.  53S.  1 17  N.  W.  1004  (1Q08)  ;  Elliott  v.  Miller, 
158  Fed.  868  (1908)  ;  Collins  v.  Whiteside,  75  N.  J.  L.  865,  69  Atl.  174  (1908). 


CHICAGO  &  N.  R.  CO.  V.  DUNLEAVY  465 

CHICAGO  AND  NORTHWESTERN  RAILWAY  CO.  v. 

ANNIE  DUNLEAVY,  ADMX. 

Supreme  Court  of  Illinois.  1889. 
129  ///.  132. 

Action  on  the  case  by  Annie  Dunleavy,  administratrix  of  the 
estate  of  John  Dunleavy,  deceased,  against  the  Chicago  and  North- 
western Railway  Company,  to  recover  damages  under  the  statute 
for  the  death  of  plaintiff's  intestate.  On  the  trial  a  verdict  for 
$1,800  was  found  for  plaintiff,  upon  which  judgment  was  entered; 
this  judgment  was  affirmed  by  the  appellate  court  and  a  further 
appeal  taken  to  the  supreme  court.^^ 

Bailey,  J. :  The  next  questions  to  be  considered  are  those  which 
relate  to  the  special  findings  of  the  jury.  Upon  this  branch  of  the 
case  it  is  urged,  first,  that  the  court  improperly  refused  to  submit 
certain  questions  of  fact  to  the  jury;  second,  that  certain  of  the 
questions  of  fact  submitted  were  not  properly  answered;  third, 
that  the  special  findings  of  fact  are  inconsistent  with  the  general 
verdict.  The  statute  under  which  special  findings  may  be  required 
is  but  recent,  and  the  rules  of  practice  thereby  established  have 
never  before  been  presented  to  this  court  for  its  considration.  We 
must,  therefore,  look  mainly  to  the  statute  itself  for  our  guide  in 
determining  the  propositions  now  raised.  The  statute  is  as  follows: 

Section  i.  "That  in  all  trials  by  jury  in  civil  proceedings  in  this 
state  in  courts  of  record,  the  jury  may  render,  in  their  discretion, 
either  a  general  or  a  special  verdict ;  and  in  any  case  in  which  they 
render  a  general  verdict,  they  may  be  required  by  the  court,  and 
must  be  so  required  on  request  of  any  part}^  to  the  action,  to  find 
specially  upon  any  material  question  or  questions  of  fact  which 
shall  be  stated  to  them  in  writing,  which  questions  of  fact  shall  be 
submitted  by  the  party  requesting  the  same  to  the  adverse  party  be- 
fore the  commencement  of  the  argument  to  the  jury." 

Section  2.  "Submitting  or  refusing  to  submit  a  question  of  fact 
to  the  jury  when  requested  by  the  party,  as  provided  by  the  first 
section  hereof,  may  be  excepted  to  and  be  reviewed  on  appeal  or 
writ  of  error  as  a  ruling  on  a  question  of  law." 

Section  3.  "When  the  special  finding  of  fact  is  inconsistent  with 
the  general  verdict,  the  former  shall  control  the  latter  and  the  court 
may  render  judgment  accordingly."^^ 

"'The  arguments  of  counsel  and  part  of  the  opinion  of  the  court  are 
omitted. 

"^Kurd's  111.  Rev.  Stat.  (1916),  p.  2001,  §  79.  In  the  absence  of  any  statute, 
it  has  been  held  in  a  number  of  states  that  it  is  within  the  reasonable  discre- 
tion of  the  presiding  judge  to  require  or  refuse  to  require  the  jury  to 
answer  pertinent  interrogatories  in  addition  to  a  general  verdict.  Pierce  v. 
Woodward,  6  Pick.  (Mass.)  206  (1828);  SvMth  v.  Putney,  18  Maine  87 
(1841);  McMasters  v.  Westchester,  25  Wend.  (N.  Y.)  379  (1841)  ;  Green 
V.  Clay,  10  Allen  (Mass.)  90,  87  Am.  Dec.  622  (1865)  ;  Mair  v.  Bassett,  117 
Mass.  356  (1875)  ;  Gcrmond  v.  Railroad  Co.,  65  Vt.  126,  26  Atl.  401  (1803)  ; 
30 — Civ.  Proc. 


.|66  TRIAL 

It  is  manifest,  of  course,  that  a  special  finding  by  a  jury  upon 
material  questions  of  fact  submitted  to  them  under  the  provisions  of 
the  statute  is  not  a  special  verdict,  but  an  essentially  different  pro- 
ceeding. A  special  verdict  can  not  be  f(3und  Avhcre  there  is  a  gen- 
eral verdict,  but  the  special  fimlings  of  fact  provided  for  by  the 
statute  can  be  required  only  in  case  a  general  verdict  is  rendered. 
lUit  while  this  is  so,  much  light  in  relation  to  special  findings  upon 
tiie  questions  of  fact,  and  their  office  and  objects,  may  be  derived 
from  the  rules  applicable  to  special  verdicts.  Both  forms  of  verdict 
are  provided  for  by  the  same  statute,  and  tliey  must  therefore  be 
construed  as  being  in  pari  viafcria. 

In  giving  construction  to  the  statute,  the  first,  and  perhaps  the 
most  important  question,  relates  to  the  scope  and  meaning  of  the 
phrase,  "material  question  or  questions  of  fact."  May  such  ques- 
tions relate  to  mere  evidentiary  facts,  or  should  they  be  restricted  to 
those  ultimate  facts  upon  which  the  rights  of  the  parties  directly  de- 
pend? Evidently  the  latter.  Not  only  does  this  conclusion  follow 
from  analog}^  to  the  rules  relating  to  special  verdicts,  but  it  arises 
from  the  very  nature  of  the  case.  It  would  clearly  be  of  no  avail  to 
require  the  jury  to  find  mere  matters  of  evidence,  because,  after 
being  found,  they  would  in  no  way  aid  the  court  in  determining 
what  judgment  to  render.  Doubtless,  a  probative  fact  from  w^hich 
the  ultimate  fact  necessarily  results  would  be  material,  for  there  the 
court  could  infer  such  ultimate  fact  as  a  matter  of  law.  But  wdiere 
the  probative  fact  is  merely  prima  facie  evidence  of  the  fact  to  be 
proved,  the  proper  deductions  to  be  drawn  from  the  probative  fact 
present  a  question  of  fact  and  not  of  law,  requiring  further  action 
by  the  jury,  and  it  can  not,  therefore,  be  made  the  basis  of  any  action 
by  the  court.  Requiring  the  jury  to  find  such  probative  fact  is  merely 
requiring  them  to  find  the  evidence  and  not  the  facts,  and  results  in 
nothing  which  can  be  of  the  slightest  assistance  to  the  parties  or  the 
court  in  arriving  at  the  proper  determination  of  the  suit. 

The  view  w-e  take  is  strongly  fortified  by  the  provision  of  the 
third  section  of  the  statute,  that,  when  a  special  finding  of  fact  is 
inconsistent  with  the  general  verdict,  the  former  shall  control.  This 
necessarily  implies  that  the  fact  to  be  submitted  shall  be  one  which, 
if  found,  may  in  its  nature  be  controlling.  That  can  never  be  the 
case  with  a  mere  evidentiary  fact.    A  fact  which  merely  tends  to 


Walker  v.  New  Mexico  S.  R.  Co.,  165  U.  S.  593,  41  L.  ed.  837  (1897)  ;  Ellis 
V.  Block,  187  Mass.  408,  73  N.  E.  475  (1904);  Prccdman  v.  A'.  Y.,  N.  H. 
&  H.  R.  Co.,  81  Conn.  601,  71  Atl.  901  (1909)  ;  D\iffy  v.  York  Haven  Water 
&  Power  Co.,  242  Pa.  146.  83  Atl.  935  (1913)  ;  yiclor-Anfencan  FucWo.  v. 
/^iTccanr/z,  209  1^'ed."  568  (1913).  The  Xew  York  Code  of  1848  provided  that 
the  court  mipht  instruct  the  jury,  if  they  rendered  a  general  verdict,  to  find 
upon  particular  Questions  of  fact  to  be  submitted  in  writing.  William.';  v. 
Wells,  7  Abb.  Pr.  90  (1858);  Barkley  v.  N.  Y.  Cent.  R.  Co.,  35  App.  Div, 
228,  54  X.  Y.  S.  766  (1898).  Tliis  practice  has  been  adopted  in  many  states, 
by  statute  or  code.  Some  leave  it  to  the  discretion  of  the  court  as  to  whether 
questions  may  be  propounded.  Others  require  the  court  to  submit  interroga- 
tories to  the  juT}'  on  request  of  a  party.  See  Clementson  on  Special  Verdicts, 
p.  30,  and  statutes  in  appendix;  N.  Y.  Code  Civ.  Proc,  §  1187;  i  Bums'  Ind. 
Ann.  Stat.  (1914),  §§  572-3;  Cal.  Code  Civ.  Proc.  (1915),  §  625;  Thompson 
on  Trials  (2d  ed.),  §  2668. 


CHICAGO  &  N.  R.  CO.  V.  DUNLEAVY  467 

prove  a  fact  in  issue  without  actually  proving  it,  can  not  be  said  to 
be,  in  any  legal  sense,  inconsistent  with  a  general  verdict,  whatever 
that  verdict  may  be.  Such  inconsistency  can  arise  only  where  the 
fact  found  is  an  ultimate  fact,  or  one  from  which  the  existence  or 
non-existence  of  such  ultimate  fact  necessarily  follows,  and  that  is 
never  the  case  with  that  which  is  only  prima  facie  evidence  of  the 
fact  sought  to  be  proved. 

The  common  law  requires  that  verdicts  shall  be  the  declaration 
of  the  unanimous  judgment  of  the  twelve  jurors.  Upon  all  matter 
which  they  are  required  to  find  they  must  be  agreed.  But  it  has 
never  been  held  that  they  must  all  reach  their  conclusions  in  the 
same  way  and  by  the  same  method  of  reasoning.  To  require  unanim- 
ity not  only  in  their  conclusions,  but  in  the  mode  by  which  those  con- 
clusions are  arrived  at,  would  in  most  cases  involve  an  impossibility. 
To  require  unanimity,  therefore,  not  only  in  the  result,  but  also  in 
each  of  the  successive  steps  leading  to  such  result,  would  be  prac- 
tically destructive  of  the  entire  system  of  jury  trials.  To  illustrate, 
suppose  a  plaintiff  trying  his  suit  before  twelve  jurors,  should  seek 
to  prove  a  fact  alleged  in  his  declaration  by  giving  evidence  of 
twelve  other  facts,  each  having  an  independent  tendency  to  prove  the 
fact  alleged.  The  evidence  of  each  probative  fact,  or  the  conclusions 
to  be  drawn  from  it,  might  appeal  with  peculiar  force  to  the  belief 
or  judgment  of  some  one  of  the  jurors,  but  less  so  to  his  fellows. 
The  cumulative  effect  of  all  the  evidence  might  be  such  as  to  leave 
no  doubt  in  the  mind  of  any  member  of  the  panel  as  to  the  truth  of 
the  fact  alleged,  still,  if  the  jury  are  required  to  find  specially  as  to 
each  probative  fact,  no  one  of  the  whole  twelve  facts  v.-ould  be  at 
all  likely  to  meet  with  the  unanimous  concurrence  of  the  entire 
jury.  As  to  each  they  would  be  compelled  to  confess  their  inability 
to  agree,  or  what  would  be  its  equivalent,  say  they  did  not  know  or 
could  not  tell ;  which,  if  we  apply  the  rules  governing  special  verdicts, 
would  be  tantamount  to  a  finding  that  the  fact  was  not  proved  or  did 
not  exist.  If  such  finding  should  be  required,  and  should  be  given 
the  effect  of  controlling  the  general  verdict,  the  result  would  be,  that 
under  such  system  of  trial,  general  verdicts  could  but  seldom  stand. 

However  natural  the  curiosity  parties  may  have  to  know  the 
precise  course  of  reasoning  by  which  jurors  may  arrive  at  verdicts 
either  for  or  against  them,  they  have  no  right,  under  guise  of  sub- 
mitting cjuestions  of  fact  to  be  found  specially  by  the  jury,  to  require 
them  to  give  their  views  upon  each  item  of  evidence,  and  thus  prac- 
tically subject  them  to  a  cross-examination  as  to  the  entire  case. 
Such  practice  would  subserve  no  useful  purpose,  and  would  only 
tend  to  embarrass  and  obstruct  the  administration  of  justice ;  and  we 
may  further  say  that  such  practice  finds  no  warrant  in  our  statute. 

We  are  referred  to  one  case  in  another  state,  where,  in  a  suit  for 
personal  injuries  against  a  railroad  company,  the  defendant  was 
permitted,  under  a  statute  somewhat  similar  to  ours,  to  put  to  the 
jury  no  less  than  one  hundred  and  thirty-six  interrogatories  as  to  the 
facts  covering,  apparently,  every  possible  phase  of  the  evidence.  The 
judgment  against  the  railroad  company  was  reversed  for  an  er- 
roneous instruction  to  the  jury  as  to  the  form  of  their  answer  to 


46S  TRIAL 

questions  uhcre  the  evidence  was  not  sufficient,  but  no  suggestion 
sconis  to  have  been  made  tliat  any  portion  of  the  questions  put  to 
the  jury  were  improper.  Wliatever  may  be  the  view  of  such  prac- 
tice taken  by  the  courts  of  other  slates,  we  are  unwilUng  to  give  our 
countenance  to  its  adoption  here."* 

In  the  present  case  the  defendant's  counsel  prepared  and  sub- 
mitted liftecn  questions  of  fact  upon  which  the  court  was  asked  to 
require  the  jury  to  make  special  findings.  Of  these  the  eleventh  and 
twelfth  were  refused.  The  first  was  modified  and  submitted  to  the 
jury  in  its  modified  form.  The  residue  of  tlie  questions  were  sub- 
mitted as  asked.  We  do  not  understand  that  the  defendant  is  now 
complaining  of  the  action  of  the  court  in  relation  to  its  eleventh  and 
twelftli  questions  of  fact.  The  first,  as  prepared  by  the  defendant's 
counsel,  was  as  follows: 

I.  "What  precaution  did  the  deceased  take  to  inform  himself 
of  the  approach  of  the  train  which  caused  the  injury?" 

This  was  modified  by  tlie  court  so  as  to  read  as  follows : 

I.  "Was  the  deceased  exercising  reasonable  care  for  his  own 
safety  at  the  time  he  was  killed  ?" 

The  ultimate  fact  which  it  was  incumbent  upon  the  plaintiff  to 
prove,  and  which  the  defendant  sought  to  disprove,  was,  tliat  the 
deceased,  at  the  time  he  w-as  killed,  was  in  the  exercise  of  due  care. 
That  was  one  of  the  issues  made  by  the  pleadings,  and  it  w^as  one  of 
tlie  ultimate  facts  upon  which  the  plaintiff's  right  to  recover  neces- 
sarily depended.  What  the  deceased  did  to  inform  himself  of  the 
approach  of  the  train  was  material  only  as  tending  to  show  reason- 
able care  on  his  part  or  the  want  of  it.  His  acts  in  that  behalf,  then, 
whatever  they  may  have  been,  were  facts  which  were  merely  evi- 
dential in  their  nature,  and  while  they  doubtless  would  have  had  a 
tendency  to  prove  reasonable  care  or  the  contrary,  there  were  none 
of  them,  so  far  as  the  evidence  shows,  which  would  have  been  con- 
clusive of  that  question.  The  question,  then,  as  submitted  by  the 
defendant's  counsel,  sought  to  obtain  a  finding  as  to  mere  probative 
facts,  and  the  court,  tliercfore,  properly  refused  to  require  the  jury 
to  answer  it.  The  question  substituted  by  the  court  submitted  to  the 
jury  a  material  and  controlling  fact,  and  one  which  could  be  prop- 
erly made  the  subject  of  a  special  finding.^^ 

'^ll'ard  V.  Bitsack,  46  Wis.  407,  i  N.  W.  107  (1879)  ;  Haney  Co.  v.  Asso- 
ciation, 119  Iowa  188,  93  N.  W.  297  (1903);  Evans  v.  Moseley,  84  Kans. 
322,  114  Pac.  374  (1911)  ;  Rogers  v.  Kansas  Co-Opcrative  R.  Co.,  91  Kans. 
351.  "^iJ  P<ic-  991  (i9i4)-  The  Michigan  statute  limits  the  number  of  questions 
to  five.   Mich.:  Howell's  Ann.  Stats.  (1913).  §  12943. 

""Each  question  submitted  should  be  limited  to  a  single  direct  and  ma- 
terial controverted  issue  of  fact,  and  in  such  a  way  that  the  answer  will 
necessarily  be  positive,  direct  and  intelligible."  Jcn-ell  v.  Railroad,  54  Wis. 
610.  12  N.  W.  83,  41  Am.  Rep.  63  (1882);  Morse  v.  Morse,  25  Ind.  156 
(1865  J  ;  Germaine  v.  Muskegon,  105  Mich.  213,  63  N.  W.  78  (1895) ;  Morbey 
V.  Chicago,  &c.,  R.  Co.,  116  Iowa  84,  89  N.  W.  105  (1902)  ;  Drum-Flato  Co. 
V.  Edmisson,  208  U.  S.  534,  28  Sup.  Ct.  367,  52  L.  ed.  606  (1907)  ;  Springfield 
C.  M.  Co.  V.  Gediitis,  227  111.  9,  81  N.  E.  9  (1907)  ;  People  v.  Commercial  Ins. 
Co.,  247  111.  92  (1910);  Kuchler  v.  Stafford,  185  111.  App.  199  (1914)-  But 
questions  may  be  allowed  the  answers  to  which  will  establish  probative  facts 
from  which  an  ultimate  material  fact  may  be  inferred  as  a  matter  of  law. 
Cale  V.  Rriddy,  66  Ohio  St.  400,  64  N.  E.  437  (1502). 


CHICAGO  &  N.  R.  CO.  1\  DUNLEAVY  469 

Complaint  is  made  to  the  answers  given  by  the  jury  to  the  fourth 
and  lif til  questions.  Those  questions  were  as  follows : 

4.  "Did  the  deceased  look  to  ascertain  if  said  train  in  question 
was  approaching?" 

5.  "Did  the  deceased  listen  to  ascertain  if  said  train  was  ap- 
proaching?" 

To  both  of  these  questions  the  jury  answered:  "Don't  know." 

It  is,  perhaps,  questionable  whether  the  defendant,  in  order  to 
avail  itself  of  the  objection  that  no  proper  answer  was  made  to 
these  questions,  should  not  have  made  it  at  the  time  tlie  verdict  was 
returned  and  before  the  jury  was  discharged,  for  then  the  jury  might 
have  been  required  to  complete  their  verdict  by  making  proper 
answers.  Moss  v.  Priest,  19  Abb.  Prac.  (N.  Y.)  314.°®  But,  how- 
ever that  may  be,  it  is  manifest  that  the  error,  if  it  be  one,  can  not 
have  been  prejudicial  to  the  defendant  unless  it  can  be  seen  that 
answers  to  said  questions  most  favorable  to  the  defendant,  which  of 
course  would  have  been  answers  in  the  negative,  w^ould  have  consti- 
tuted a  finding  inconsistent  with  the  general  verdict. 

If,  then,  we  treat  said  qtiestions  as  having  been  ansvv-ered  in  the 
negative,  would  such  answers,  eitlier  alone  or  in  connection  with  the 
answers  to  the  other  questions,  have  constituted  a  finding  necessarily 
inconsistent  with  the  general  verdict?  To  the  second  question,  viz., 
"If  the  deceased  had  looked  before  the  accident,  could  he  have  dis- 
covered the  approach  of  the  train  in  time  to  have  avoided  the  acci- 
dent?" the  jury  answered,  "Yes,"  and  to  the  third  question,  viz., 
"If  the  deceased  had  listened  before  the  approach  of  said  train,  could 
he  have  discovered  the  approach  of  the  train  in  time  to  have  avoided 
the  accident  ?"  they  answered,  "If  he  had  concentrated  his  attention 
in  that  particular  direction,  yes."  The  first  question,  viz.,  "Was  the 
deceased  exercising  reasonable  care  for  his  safety  at  the  time  he  was 
killed?"  was  also  answered,  "Yes." 

The  question  then  presents  itself,  whether,  if  it  be  admitted  that 
the  deceased  neither  looked  nor  listened  for  the  train,  and  also  that 
if  he  had  looked  he  could  have  seen  it,  and  if  he  had  listened  with 
his  attention  concentrated  in  that  direction,  he  could  have  heard  it 
in  time  to  avoid  the  accident,  such  facts  would  constitute  such  con- 
clusive proof  of  contributory  negligence  on  the  part  of  the  deceased 
as  would  have  barred  a  recovery.  Undoubtedly  a  failure  to  look  or 
listen,  especially  where  it  affirmatively  appears  that  looking  or  listen- 
ing might  have  enabled  the  party  exposed  to  injury  to  see  the  train 
and  thus  avoid  being  injured,  is  evidence  tending  to  show  negligence. 
But  they  are  not  conclusive  evidence,  so  that  a  charge  of  negligence 
can  be  predicated  upon  them  as  a  matter  of  law.  There  may  be  vari- 
ous modifying  circumstances  excusing  the  party  from  looking  or 


^Btmtin  v.  Rose,  16  Ind.  209  (1861)  ;  Summers  v.  Greathonse,  87  Ind. 
205  (1882)  ;  Dyer  v.  Taylor,  50  Ark.  314,  7  S.  W.  258  (1887)  ;  Fisk  v.  Chicago, 
&c.,  R.  Co.,  74  Iowa  424,  38  N.  W.  132  (1888)  ;  Chicago,  &c.,  R.  Co.  v.  Goy- 
ette,  133  111.  21,  24  N.  E.  549  (1890). 


470  TUIAI. 

listcnlni:^.  aiul  that  bcinc^  the  case,  a  mere  failure  to  look  or  listen 
can  not,  as  a  loj^al  conclusion,  be  pronoiniced  ne^jlij^encc  per  se.^'' 

In  determining  whether  the  special  landings  are  inconsistent  with 
the  general  verdict  so  that  the  latter  must  be  held  to  be  controlled  by 
the  former,  this  court  can  not  look  at  the  evidence.  All  reasonable 
presumptions  will  be  entertained  in  favor  of  the  verdict,  while  noth- 
ing will  be  presumed  in  aid  of  the  S[)ecial  fmdings  of  fact.  The  in- 
consistency must  be  irreconcilable,  so  as  to  be  incapable  of  being  re- 
moved by  any  evidence  admissible  under  the  issues.  Pennsylvania 
Co.  V.  S)uitli,  98  Ind.  42;  McComas  v.  Haas,  107  Ind.  512;  Redel- 
shcimcr  v.  Miller,  107  Ind.  485.  Under  these  principles  it  must  be 
held  that  there  is  no  necessary  or  irreconcilable  inconsistency  between 
the  special  finding  and  the  general  verdict,  especially  in  view  of  the 
fact  that  the  jury,  notwithstanding  their  finding  that  the  deceased 
did  not  look  or  listen,  also  found  that  he  was  in  the  exercise  of  rea- 
sonable care. 

Affirmed.°« 


SECTION  12.     MOTIONS  AFTER  VERDICT. 

SMITH  V.  BIESIADA. 

Supreme  Court  of  Indiana,  1909. 

174  Ind.  134. 

Biesiada  and  others  petitioned  for  the  construction  of  a  public 
drain  under  section  2  of  the  Act  of  March  11,  1907.  Acts,  1907, 
p.  508,  section  6141,  Burns,  1908.  The  matter  was  referred  to  commis- 


''Terre  Haute  &  T.  R.  Co.  v.  Voelker,  129  111.  540,  22  N.  E.  20  (1889)  ; 
Toledo,  &c.,  R.  Co.  V.  Cline,  135  111.  41,  25  N.  E.  846  (1890)  ;  Lctvis  v.  Long 
Island  R.  Co.,  162  N.  Y.  52,  56  N.  E.  548  (1900).  Compare  North  Pcnn.  R. 
Co^-v.  Heilcuian,  49  Pa.^St^-Co^  8&  Am.  Dec.  482  (1865)  ;  Pennsylvania  R.  Cq,. 
V.  Bcalc,  73  Pa.  81:^504,  13  Am.  Rep.  753  (1873),  and  see  Patterson's  Raif\\-ay 
Accident  Law,  §§  173-183. 

"'Special  findings  are  to  be  reconciled  with  the  general  verdict  if  they 
reasonably  can  be.  But  where  the  special  finding!?  are  inconsistent  with  and 
antagonistic  to  the  general  verdict,  the  former  control  and  judgment  must 
be  entered  in  accordance  with  the  special  findings.  Indianapolis,  &c.,  R.  Co. 
V.  Stout,  53  Ind.  143  (1876)  ;  Trevor  v.  Hazdcy,  99  Mich.  504,  s8  N.  W.  466 
(1894)  ;  Kennedy  v.  Ball,  91  Hun  (N.  Y.)  197,  36  N.  Y.  S.  325  (1895)  ;  Troy 
v.  Brady,  67  Ohio  St.  65,  65  N.  E.  616  (1902)  ;  An-de  v.  Cole,  99  Minn.  357, 
109  N.  \V.  812  (1906)  ;  Hau'ley  v.  Bond,  20  S.  Dak.  215,  105  N.  W.  464  (1905)  ; 
Connell  v.  Electric  Co.,  131  Iowa  622,  109  N.  W.  177  (1906)  ;  Court  of  Honor 
V.  Dinger,  221  111.  176,  77  N.  E.  557  (1906)  ;  Pittsburgh,  &c.,  R.  Co.  v.  Light- 
heiser,  168  Ind.  438,  78  N.  E.  1033  (1906)  ;  Plyer  v.  Pacific  P.  C  Co.,  152  Cal. 
125,  92  Pac.  56  (1907)  ;  Oshurn  v.  Raihvay  Co.,  75  Kans.  746,  90  Pac.  289 
(1907)  ;  Ft.  Wayne  C.  Co.  v.  Page,  170  Ind.  585,  84  N.  E.  145  (1908)  ;  Havlik 
V.  .St.  Paul  F.  &  M.  Co.,  87  Nebr.  427,  127  N.  W.  248  (1910)  ;  Morrow  v. 
Bonebrake,  84  Kans.  724,  115  Pac.  585  (1911);  Caledonia  County  Grammar 
School  V.  Kent,  86  Vt.  151,  84  Atl.  26  (1912)  ;  Ellison  v.  Greenville  &  S.  R. 
Co.,  94  S.  Car.  425,  77  S.  E.  123,  78  S.  E.  231  (1913)  ;  Sare  v.  Hoadley  Stone 
Co.,  57  Ind.  App.  464,  105  N.  E.  582  (1914)  ;  Duckworth  v.  Stalnakcr,  78  \V. 
Va.  247,  81  S.  E.  989  (1914). 


SMITH    V.    BIESIADA  47I 

sioners  who  made  a  report,  to  which  WilUam  Smith  filed  a  remon- 
strance. A  trial  by  the  court  resulted  in  findings  for  Smith  on 
certain  grounds  and  other  findings  in  favor  of  the  petitioner.  Judg- 
ment was  rendered  modifying  the  commissioners'  report.  Smith 
appealed,  assigning  as  error  the  overruling  of  his  motions  (a)  for  a 
new  trial,  (b)  to  dismiss  the  proceeding,  (c)  for  a  venire  de  novo, 
(d)  in  arrest  of  judgment.^^ 

Montgomery,  J. :  The  motions  to  dismiss,  for  a  venire  de  novo, 
in  arrest  of  judgment,  were  all  made  after  the  judgment  establishing 
the  drain  had  been  rendered,  and  the  motion  for  a  new  trial  over- 
ruled. It  is  very  clear  that  the  court  could  not  then  entertain  a 
motion  to  dismiss  the  cause.^ 

A  motion  for  a  venire  de  novo  must  be  made  before  judgment 
is  rendered  on  the  verdict  or  finding.^ 

A  motion  in  arrest  of  judgment  must  be  made  before  rendition 
of  the  judgment  sought  to  be  arrested.^ 

It  follows  that  the  court  did  not  err  in  overruling  these  motions. 

Judgment  affirmed.* 

**A  part  only  of  the  case  is  printed. 

^Burns'  Annotated  Statutes  of  Indiana  (1914),  §  340.  See  Tooher  v. 
Arnoux,  76  N.  Y.  397,  20  Alb.  Law  J.  (1879)  ;  Ames'  Cases  on  Pleading  (2d 
ed.)  269  and  notes. 

^Citing  2  Elliott,  Gen.  Prac,  §  985 ;  Shaw  v.  Merchants'  Bank,  60  Ind. 
83  (1877)  ;  McClintock  v.  Theiss,  74  Ind.  200  (1881)  ;  Deatty  v.  Shirley,  83 
Ind.  218  (1882);  Potter  v.  McCorniack,  127  Ind.  439,  26  N.  E.  883  (1891); 
Bennett  V.  Simon,  152  Ind.  490,  53  N.  E.  649  (1899)  ;  Sloan  v.  Lick  Creek  Co., 
6  Ind.  App.  584,  33  N.  E.  997  (1893)  ;  Cannon  v.  Castleman,  24  Ind.  App.  188, 
55  N.  E.  Ill  (1900)  ;  McCaslin  v.  State,  38  Ind.  App.  184,  75  N.  E.  844  (1906). 
For  the  distinction  between  a  venire  de  novo  and  a  new  trial  see  JVitham 
V.  Lewis,  I  Wils.  48,  53  (1744)  ;  Tidd's  Practice  (2  Am.  ed.)  953,  and  Butcher 
V.  Metis,  I  Miles  (Pa.)  2%?,  (1836)  infra. 

'Citing  Train  V.  Cridley,  36  Ind.  241  (1871)  ;  Hilligos  v.  Pittsburgh  R. 
Co.,  40  Ind.  112  (1872)  ;  Brownlee  v.  Hare,  64  Ind.  311  (1878)  ;  Pastes  v. 
Pastes,  79  Ind.  363  (1881)  ;  Potter  v.  McCormack,  127  Ind.  430,  26  N.  E.  883 
(1891)  ;  Smith  v.  State,  140  Ind.  343,  39  N.  E.  1060  (1894) ;  Baylcss  v.  Jones, 
10  Ind.  App.  102,  27  N.  E.  421  (1894). 

■"Ill  Blackstone's  Commentaries  386;  Tidd's  Practice,  934  et  seq. ;  i 
Troubat  &  Haly's  Practice  (Wharton's  ed.),  525.  The  party  who  has  obtained 
a  verdict  is,  in  theory,  immediately  entitled  to  judgment.  Van  Riper  v.  Vatt 
Riper,  4  N.  J.  L.  156,  7  Am.  Dec.  576  (1818)  ;  Hutchinson  v.  Boiirs,  13  Cal. 
50  (1859),  but,  by  the  practice  in  the  Court  of  King's  Bench,  it  was  incum- 
bent upon  the  prevailing  party  to  enter  a  rule  for  judgment  nisi  causa,  which 
rule  expired  in  four  days,  and  if  at  the  end  of  four  days  no  sufficient  cause 
was  shown  to  the  contrary,  judgment  could  be  signed.  Rex  v.  Plkins,  4  Burr. 
2129  (1767)  ;  Roberts  v.  Stacey,  13  East.  21  (1810)  ;  Willis  v.  Bennett,  Barnes 
443  {'i^VZl)  ;  Reynolds  v.  Simonds,  Barnes  446  (1739).  Under  the  modern 
English  rules  an  application  for  a  new  trial  is  by  fourteen  days'  notice  of 
motion,  served  within  ten  days  after  the  trial,  order  XXXIX,  rule  4. 

In  the  United  States,  statutes  and  rules  of  court  usually  fix  the  time 
for  entry  of  judgment  on  verdicts  and  the  time  within  which  motions  for 
new  trial,  for  judgment  non  obstante  veredicto  and  in  arrest  of  judgment 
should  be  made.  1  Black  on  Judgments  (2d  ed.)  121 ;  Goodrmn  v.  Grimes, 
185  Mass.  80,  69  N.  E.  1053  (1904);  N.  Y.  Code  Civ.  Proc,  §§  999-1000; 
Thayer  Mfg.  Co.  v.  Steinau,  58  How.  Pr.  (N.  Y.)  315  (1880)  ;  Dillon  v.  O'Neal, 
26  R.  I.  87,  58  Atl.  455  (1904)  ;  23  P-  &  L-  Dig-  of  Pa.  Dec.  2^070.  Pending 
the  disposition  of  such  a  motion  the  entry  of  judgment  is  generally  held 
irregular.  Stevenson  v.  Sherwood,  22  111.  238,  74  Am.  Dec.  140  (1859)  ; 
Louisville  Chemical  Works  v.  Commonwealth,  8  Bush.  (K.  Y.)   179  (1871)  ; 


47-  TRIAL 


(a)  New  Trial. 

California  Code  of  Chil  Proccdurr,  §  657. 

The  former  verdict  or  other  decision  may  be  vacated  and  a  new 
trial  granted,  on  the  appHcation  of  the  party  aggrieved,  for  any  of 
the  following  causes,  materially  affecting  the  substantial  rights  of 
such  party: 

1.  Irregularity  in  the  proceedings  of  th*'  court,  jury,  or  adverse 
party,  or  any  order  of  the  court  or  abuse  of  discretion  by  which 
either  party  was  prevented  from  having  a  fair  trial ; 

2.  Misconduct  of  the  jury;  and  whenever  any  one  or  more  of 
the  jurors  have  been  induced  to  assent  to  any  general  or  special 
verdict,  or  to  a  finding  on  any  question  submitted  to  them  by  the 
court,  by  a  resort  to  the  determination  of  chance,  such  misconduct 
may  be  proved  by  the  affidavit  of  any  one  of  the  jurors  ; 

3.  Accident  or  surprise,  which  ordinary  prudence  could  not 
have  guarded  against ; 

4.  Newly  discovered  evidence,  material  for  the  party  making 
the  application,  which  he  covild  not,  with  reasonable  diligence,  have 
discovered  and  produced  at  the  trial ; 

5.  Excessive  damages,  appearing  to  have  been  given  under  the 
influence  of  passion  or  prejudice; 

6.  Insufficiency  of  the  evidence  to  justify  the  verdict  or  other 
decision,  or  that  it  is  against  law ; 

7.  Error  in  law,  occurring  at  the  trial  and  excepted  to  by  the 
party  making  the  application.^ 

Mnrnr/mn  '^rminnry  V^E I'thlchrm^I^:^  T^.  SL.J&L.  26  Atl.  237  (1893)  ;  Lou- 
tsfiUe  V.  Middoon,  19  Ky.  L.  1386,  43  S.  W.  867  (1897)  ;  Schmidt  v.  Terry, 
III  Fed.  290  (1901).  But,  with  rare  exceptions,  a  motion  for  new  trial  made 
after  the  prescribed  time  has  elapsed  and  judgment  has  been  entered  will  be 
denied.  R-jjitig  v.  Tecs,  i  Binn.  (Pa.)  450,  2  Am.  Dec.  455  (1808)  ;  Syracuse^ 
/W_Jlil  Cn  V  Car  others.  ()?,  Pa.  St^;_320^  (1869)  ;  State  v.  McGozijan,  62  Mo." 
App.  625  (1895);  Nelson  v.  Farmland  Security  Co.,  58  Nebr.  604,  79  N.  W. 
161  (1899)  ;  Hilly.  Hard_cr.  -^  Pa.  Super.  Ct.  473  (1807)  ;  Hanniim  v.  Belcher- 
to-ii'ti,  19  Pick.  (Mass.K3ii  (1837);  Allen  v.  Adams,  150  Ind.  409,  50  N.  E. 
387  (1897)  ;  Wilson  v.  Dallas,  84  Nebr.  605,  121  N.  W.  1128  (1909)  ;  Walker 
v.  Blake,  13  Ariz.  I,  108  Pac.  221  (1910)  ;  Mann  v.  Dempster,  181  Fed.  76 
(1910);  Rosner  v.  Colin,  81  N.  J.  L.  343,  79  Atl.  1056  (1911).  Compare 
Emma  Silver  Min.  Co.  v.  Park,  14  Blatch.  (U.  S.)  411  (1878);  Ellis  v. 
Hearn,  132  App.  Div.  207,  116  N.  Y.  S.  977  (1909);  Okaaaki  V.  Snssman, 
79  Wash.  622,  140  Pac.  904  (1914).  Similar  rules  apply  to  motions  for  judg- 
ment non  obstante  veredicto,  which  must  be  made  after  verdict  and  before 
judgment.  Mississippi  v.  Manchester  Commercial  Bank,  6  Sm.  &  M.  (Miss.) 
218  (1846)  ;  Rol^rhnrhrrv,  Puqh,  TO  W.  N.  Cns.  iV-A.\  9.^^  ( 1881 )  ;  Marsliall- 
iozi-n  S.  Co.  V.  Des  Moines  B.  Co.,  (Iowa)  loi  N.  W.  1124  (1905),  and  to 
motions  in  arrest  of  judgment.  Burrall  v.  DiiBois,  2  Dall.  (U.  S.)  229,  i 
L.  ed.  360  (1793)  ;  State  v.  Leathers,  61  Mo.  381  (1875)  ;  Keller  v.  Stevens, 
66  Md.  132,  6  Atl.  533  (1886)  ;  Smith  v.  State,  140  Ind.  343,  39  N.  E.  1060 
(1894)  ;  Lodge  v.  O'Toole,  20  R.  I.  300  (1897);  Marshall  v.  Davis,  122  Ky. 
413  (1906).  Compare  Sulli'-an  v.  A'ew  Bedford  Saz'.  Inst.,  140  Mass.  260, 
6  X.  E.  83  (1885)  -J^iscle  V.  Ki.<;.<:inqcr,K\  Pa.  Super.  Ct.  4=;^  (1Q13V 

''In  many  of  the  practice  acts  of  the  various  states  the  grounds  for  new 
trials  are,  as  in  the  California  Code,  expressly  enumerated;  in  others  this 
enumeration  is  omitted  and  it  is  provided  that  new  trials  may  be  granted  for 


r 


WOOD   V.    GUNSTON  473 

WOOD  V.  GUNSTON. 

Upper  Bench,  1655. 
Style's  Reports  466' 

Wood  brought  an  action  upon  the  case  against  Gunston  for 
speaking  of  scandalous  words  of  him ;  and  amongst  other  words  for 
calHng  him  traytor,  and  obteyns  a  verdict  against  him  at  the  bar, 
wherein  the  jury  gave  1500/.  dammages.  Upon  the  supposition  that 
the  dammages  were  excessive,  and  that  the  jury  did  favour  the 
plaintiff,  the  defendant  moved  for  a  new  tryal.  But  Sergeant  May- 
tiard  opposed  it,  and  said  that  after  a  verdict  the  partiality  of  the 
jury  ought  not  to  be  questioned,  nor  is  there  any  presidents  for  it  in 
our  books  of  law,  and  it  would  be  of  dangerous  consequence  if  it 
should  be  suffered,  and  the  greatness  of  the  dammages  given  can  be 
no  cause  for  a  new  tryal,  but  if  it  were,  the  dammages  are  not  here 
excessive,  if  the  words  spoken  be  well  considered,  for  tliey  tend  to 
take  away  the  plaintiff's  estate  and  his  life.  Windham  on  the  other 
side  pressed  for  a  new  tryal,  and  said  it  was  a  packed  business,  else 
there  could  not  have  been  so  great  dammages,  and  the  court  hath 
power  in  extraordinary  cases,  such  as  this  is,  to  grant  a  new  tryal. 
Glyn,  Chief  Justice :  It  is  in  the  discretion  of  the  court  in  some 
cases  to  grant  a  new  tryal,  but  this  must  be  a  judicial,  and  not  an 
arbitrary  discretion,  and  it  is  frequent  in  our  books  for  the  court  to 
take  notice  of  miscarriages  of  juries,  and  to  grant  new  tryals  upon 
them,  and  it  is  for  the  people's  benefit  that  it  should  be  so  for  a  jury 
may  sometimes  by  indirect  dealings  be  moved  to  side  with  one  party, 
and  not  to  be  indifferent  betwixt  them,  but  it  can  not  be  so  intended 
of  the  court;  wherefore  let  there  be  a  new  tryal  tlie  next  term,  and 
the  defendant  shall  pay  full  costs,  and  judgment  to  be  upon  this 
verdict  to  stand  for  security  to  pay  what  shall  be  recovered  upon 
the  next  verdict.'' 


the  reasons  usual  at  common  law.  Compare  Ohio  Gen.  Code  (1910),  §  11576; 
Burns'  Ind.  Ann.  Stat.  (1914),  §  585;  Oklahoma  Rev.  Laws  (1910),  §  5033; 
Lord's  Ore.  Laws  (1909),  §  174;  Minn.  Rev.  Laws  (i9i4),§  4198;  Howell's  Mich. 
Stat.  (2ded.),  §  15134;  Mass.  Rev.  Laws  (1902),  ch.  173,  §  112 ;  R.  L  Gen.  Laws 
(1909),  ch.  298,  §  12;  Ga.  Code  (1911),  §§  6078-6093;  N.  Y.  Code  Civ.  Proc. 
§§  999-1006.  As  to  whether  the  courts  in  granting  new  trials  are  confined  to 
the  enumerated  grounds,  compare  People  v.  Fair,  43  Cal'.  137  (1872)  ;  Mc- 
Mahon  v.  State,  17  Tex.  App.  321  (1S79)  ;  Svcartont  v.  IVillingham,  6  Misc. 
179,  26  N.  Y.  S.  769,  31  Ahb.  N.  Cas.  66  (1893),  with  Zalcski  v.  Clark,  45  Conn. 
397  (1877)  ;  Bartling  v.  Jamison,  44  Mo.  141  (1869)  ;  Donnelly  v.  McArdle, 
14  App.  Div.  217,  43  N.  Y.  S.  560  (1897).  See,  also,  14  Enc.  PI.  &  Pr.  707; 
20  Cjc.  707.  As  to  England,  see  Rules  of  the  Supreme  Court,  order  XXXIX, 
rr.  1-8. 

"Style  462  where  the  chief  justice  is  reported  as  saying  "if  the  court  do 
believe  that  the  jur>'  gave  their  verdict  against  their  direction  given  unto 
them,  the  court  may  grant  a  new  trial." 

"'There  are  instances,  in  the  year-books  of  the  reigns  of  Edward  III, 
Henry  IV  and  Henry  VII  of  judgments  being  stayed  (even  after  a  trial  at 
bar)  and  new  venires  awarded,  because  the  jury  had  eat  and  drank  without 
consent  of  the  judge,  and  because  the  plaintiff  had  privately  given  a  paper 
to  a  jurjTnan  before  he  was  sworn.   And  upon  these  the  chief  justice,  Glynn, 


474  TRIAL 


in  1655  proiindcd  the  first  precedent  that  is  reported  in  onr  books  for  prant- 
inR  a  new  trial  upon  account  of  excessive  damatjes  Riven  by  the  jur>':  appre- 
hending, witli  reason,  that  notorious  partiality  in  the  jurors  was  a  principal 
species  of  misbehavior.  A  few  years  before  a  practice  took  rise  in  the  com- 
mon pleas,  of  Rrantincr  new  trials  upon  the  mere  certificate  of  the  judge 
(unfortified  by  any  report  of  the  evidence)  that  the  verdict  had  passed 
a.cainst  his  opinion;  though  Chief  Justice  Kollc  (who  allowed  new  trials 
in  case  of  misbehavior,  surprise  or  fraud,  or  if  the  verdict  was  notoriously 
contrary  to  the  evidence)  refused  to  adopt  that  practice  in  the  court  of 
kings  bench.  And  at  that  time  it  was  clearly  held  for  law,  that  whatever 
matter  was  of  force  to  avoid  a  verdict  ought  to  be  returned  upon  the  postca, 
and  not  merely  surmised  by  the  court ;  lest  posterity  should  wonder  why  a 
new  venire  was  awarded,  without  any  sufficient  reason  appearing  upon  the 
record.  But  very  earh-  in  the  reign  of  Cliarlcs  the  Second  new  trials  were 
granted  upon  affidavits;  and  the  former  strictness  of  the  courts  of  law,  in 
respect  of  new  trials,  having  driven  many  parties  into  courts  of  equity  to  be 
relieved  from  oppressive  verdicts,  they  are  now  more  liberal  in  granting 
them;  the  maxim  at  present  adopted  being  this  that  (in  all  cases  of  moment) 
where  justice  is  not  done  upon  one  trial,  the  injured  party  is  entitled  to 
another."  Ill  Blackstone's  Commentaries  387;  Y.  B.  24  Edw.  Ill,  24;  Y.  B. 
II  Hen.  IV  18;  Y.  B.  14  Hen.  VII  i;  Slade's  Case,  Style  138  (1648)  ;  Graves 
V.  Short,  Cro.  Eliz.  616  (1398)  ;  Goodman  V.  Cothcrington,  Sid.  235  (1664)  ; 
Rex  v.  Fitz-W'atcr,  2  Lev.  139  (1675)  ;  Queen  v.  Hclston,  10  Mod.  202  (1713)  ; 
Bright  v.  Eyiwn,  I  Burr.  3Q0  (1757)  ;  Com.  Dig.  Pleader  R.  17;  Viner's  Abr., 
Trial  M.  g. ;  Thayer  on  Evidence  170;  Hilliard  on  New  Trials  2;  Graham  and 
Waterman  on  New  Trials  2;  Odger's  Pleading  and  Practice  (7th  ed.)  331. 

Where  the  damages  claimed  are  unliquidated  the  court  will  not  ordi- 
narily grant  a  new  trial  on  the  ground  of  excessive  damages  alone,  unless 
the  damages  are  so  large  that  no  jury  could  reasonably  have  given  them. 
Praed  v.  Graham,  24  Q.  B.  Div.  53  (1889)  ;  ^^!£/m_v,JVor//f,__LQlSi^£.^  & 
(J'a.)  399^1823)  ;  Allen  v.  Craig,  13  N.  J.  ir"294T^[^33T;  Worster  v.  Pro- 
prietlofs,  16  Pick.  (Alass.)  541  (1835);  Collins  v.  Albany  &  S.  R.  Co.,  12 
Barb.  (N.  Y.)  492  (1852)  ;  Billings  v.  Observer,  150  N.  Car.  540,  64  S.  E.  435 
(1909)  ;  IVirsinjj  V-^jnitli,  222  Pa.  8,^70  Ati  Q06  (1908)  ;  or  unless,  as  fre- 
quently required,  the  verdict  is  the  result  of  passion  or  prejudice.  Howley  v. 
Kramer,  36  Misc.  190,  73  N.  Y.  S.  142  (1901)  ;  Chlanda  v.  Transit  Co.,  213 
Mo.  244,  112  S.  W.  249  (1908)  ;  Felt  v.  Puget  Sound  Electric  R.  Co.,  175  Fed. 
477  (1909)  ;  Pinkcrton  v.  Wisconsin  Steel  Co.,  109  Minn.  117,  123  N.  W.  60 
(1909)  ;  Hazvkins  V.  Nuttallburg  Co.,  66  W.  Va.  415,  66  S.  E.  520  (1909)  ; 
DeCclles  v.  Casey,  48  Mont.  568,  139  Pac.  586  (1914)  ",  Waterman  v.  Minne- 
apolis &c.  R.  Co.,  26  N.  Dak.  540,  145  N.  W.  19  (1914)-  But  a  new  trial  will 
be  granted  if  the  court  concludes  that  the  jury  applied  the  wrong  measure 
of  damages  or  took  into  consideration  matters  that  they  ought  not  to  have 
considered.  Johnston  V.  Great  Western  R.  Co.,  L.  R.  (1904),  2  K.  B.  250. 
The  same  rules  apply  where  the  damages  are  inadequate,  but  the  power  to 
grant  a  new  trial  is  more  sparingly  exercised.  Porsdikc  v.  Stone,  L.  R.  3 
C.  P.  607  (1868)  -.Palmer  V.  The  Leader  Publishing  Co^.J  Supen  Ct.  (Pa.).  qoQ 
(1898)  ;  Toledo  R.  &c.  Co.  v.  MasonT^rO{\\o  St.  463,  9 1  NTX  292  (1910)  ; 
Schmid  v.  Chicago,  M.  &  St.  P.  R.  Co.,  108  IMinn.  329,  122  N.  W.  9  (1909) ; 
Leazitt  v.  Dow,  105  ]^Iaine  50,  72  Atl.  735  (1908)  ;  Jackson  V.  Humbolt,  84 
Kans.  445,  113  Pac.  1047  (1911)  ;  Fitlmele  v.  Forrest,  27  Del.  155,  86  Atl.  733 
(1913);  Montgomery  Light,  &c.,  Co.  v.  King,  187  Ala.  619,  65  So.  998 
(1914);  Doody  V.  Boston  &  M.  R.  Co.,  77  N.  H.  161,  80  Atl.  487  (1914)- 
Where,  however,  the  law  prescribes  the  measure  of  damages,  the  dis- 
regard of  the  law  and  the  award  of  a  sum  not  warranted  by  the  rule  furnishes 
grounds  for  a  new  trial.  Walker  v.  Smith,  4  Dallas  389,  I.  L.  ed.  878,  I  Wash. 
(C.  C.)  152,  Fed.  Cas.  No.  17086  (1804) ;  Commonivealth  v.  Sessions  for  Nor- 
folk County,  5  Mass.  435  (1809)  ;  McDonald  v.  Walter,  40  N.  Y.  551  (1869)  ; 
Ells'u'orth  v.  Central  Railroad  Co.,  34  N.  J.  L.  93  (1869).  A  verdict  in  excess 
of  the  sum  demanded  will  be  set  aside.  Mclntire  v.  Clark,  J  Wend.  (N.  Y.) 
330  (1831)  ;  Garlick  v.  Bower,  62  Cal.  65  (1882). 


QUAGLIANA   V.    JERSEY    CITY,    &C.    R.    CO.  475 


GIACHINO  QUAGLIANA  v.  JERSEY  CITY,  H.  &  P. 
STREET   RAILWAY   COMPANY. 


>^ 


Supreme  Court  of  New  Jersey,  1908. 
77  N.  J.  L.  Reports  loi 


Action  for  personal  injuries.  The  trial  resulted  in  a  verdict  for 
defendant  and  plaintiff  obtained  a  rule  to  show  cause  why  the  verdict 
should  not  be  set  aside  on  account  of  surprise.^ 

Tren CHARD,  J. :  The  contention  of  the  plaintiff  is  that  one 
Bagley,  a  material  witness  for  the  plaintiff,  was  influenced  by  the 
defendant  to  absent  himself  from  the  trial,  and  that  his  absence 
justifies  this  court  in  granting  a  new  trial. 

Misconduct  of  the  prevailing  party  or  his  attorney,  in  inducing 
a  witness  to  absent  himself  from  the  trial,  is  ground  for  a  new  trial. 
Carey  v.  King,  5  Ga.  75  ;  Barron  v.  Jackson,  40  N.  H.  365 ;  Crafts  v. 
Union  Mutual  Fire  Insurance  Co.,  36  N.  H.  44. 

But  the  misconduct  must  be  clearly  established.  Marsh  v.  Mock- 
ion,  I  Tryw.  &  G.  34. 

The  affidavits  in  this  case,  taken  In  pursuance  of  the  rule,  do  not 
disclose  misconduct  upon  the  part  of  the  defendant  or  its  attorney. 
It  appears  that  both  sides  desired  to  use  Bagley  as  a  witness.  He 
was  subpoenaed  by  the  defendant,  but  not  by  the  plaintiff.  When  he 
appeared  at  the  office  of  the  attorney  of  the  defendant  at  about  ten 
o'clock  in  the  morning  of  tlie  day  of  the  trial  he  was  intoxicated, 
and  because  of  his  condition  was  informed  that  he  was  not  needed 
that  day,  but  was  requested  to  be  in  court  the  next  morning.  The 
plaintiff  voluntarily  moved  his  case  notwithstanding  tlie  absence  of 
the  witness.  The  action  upon  the  part  of  the  defendant's  attorney 
was,  we  think,  in  good  faith  and  evinces  no  misconduct  on  his  part. 
The  controlling  reason  why  the  plaintiff  did  not  have  the  benefit  of 
Bagley's  testimony  was  that  he  had  neglected  to  subpoena  him.  A 
new  trial  will  not  be  granted  because  of  the  absence  of  a  witness  due 
to  the  negligence  of  the  applicant.  Sherrerd  v.  Olden,  i  Halst.  344  ; 
29  Cyc.  872. 

Let  the  rule  to  show  cause  be  discharged  with  costs.® 


*Part  of  the  opinion  of  the  court  is  omitted. 

*A  new  trial  may  be  granted,  on  the  ground  of  surprise,  if  a  witness 
is  unexpectedly  absent  under  circumstances  not  due  to  any  negligence  on 
the  part  of  the  appHcant  who  must  use  reasonable  dihgence  and  prudence 
to  guard  against  such  accidents.  Compare  Dickenson  v.  Fisher,  3  Times  L.  R. 
459  (1887)  ;  Ellis  V.  Hearn,  132  App.  Div.  207,  116  N.  Y.  S.  977  (1909)  with 
Washer  v.  White,  16  Ind.  136  (1861)  ;  Atlantic  &  B.  R.  Co.  v.  Johnson,  127 
Ga.  392,  56  S.  E.  482  (1906)  ;  North  Michigan  Land  &c.  Co.  v.  Kneeland,  149 
Mich.  495,  112  N.  W.  1 1 14  (1907).  Generally,  a  new  trial  will  not  be  granted 
on  the  ground  of  surprise,  accident  or  mistake  unless  the  occurrence  could 
not  have  been  anticipated  by  ordinary^  diligence,  a  matter  peculiarly  within 
the  discretion  of  the  trial  court.  Ellis  v.  Ginsburg,  163  Mass.  143,  39  N.  E.  800 
(1895).    "Many  matters  transpire  in  the  conduct  of  a  case  in  the  courtroom 


476  TRIAL 

YOUNG  f.    KERSHAW;   BURTON   v.   KERSHAW. 
^'^  Court  of  Arn-.AL,  1899. 

Si  Law  Times  Reports  531 

This  was  an  application  by  the  defendant  in  both  actions  for 
judgment  or  for  a  new  trial  upon  appeal  from  the  verdict  and  judg- 
ment at  the  trial.  The  plaintilt  in  each  action  sued  the  defendant  to 
recover  damages  for  a  libel  which  accused  the  plaintiff  of  adultery. 
The  defendant  pleaded  a  justification  of  the  libel.  The  actions  were 
tried  togetlicr  at  York,  before  Vxt.  Commissioner  Bosanquet  with  a 
jury,  and  the  trial  lasted  for  four  days.  The  jury  found  a  verdict 
for  the  plaintiff  Young  with  100/.  damages,  and  for  the  plaintiff 
Burton  with  1000/.  damages.  The  defendant  applied  for  a  new  trial, 
upon  the  ground  that  he  had,  since  the  trial,  obtained  fresh  evidence 
which  could  not  have  been  obtained  by  reasonable  diligence  before 
the  trial.  This  evidence  was  that  of  two  youths,  and  was  to  the 
effect  tliat  tliey  had  seen  adultery  committed  by  the  plaintiffs  upon 
an  occasion  which  was  alleged  to  be  a  different  occasion  from  any 
sought  to  be  proved  at  the  trial.  This  evidence  was  communicated 
after  the  trial,  to  a  man  who  was  the  co-respondent  in  a  pending 
divorce  suit  brought  by  the  plaintiff  Young  against  his  wife,  and  was 
referred  by  him  to  the  defendant's  solicitors.^" 

Smith,  L.  J. :  This  is  an  application  by  the  defendant  for  a  new 
trial.  The  trial  took  place  at  York  wdth  a  special  jury,  and  lasted 
for  four  days.  The  action  was  for  a  libel  published  by  the  defendant 


^vllich  it  is  almost  impossible  to  present  in  detail  to  another  tribunal,  and  of 
all  of  which  the  trial  judge  is  necessarily  observant.  Further,  the  trial  judge 
becomes  better  acquainted  with  the  accustomed  acts  and  habits  of  the  various 
attorneys  in  constant  practice  before  him,  and  therefore  can  more  accurately 
judge  whether  a  complaint  of  such  surprise,  as  is  here  charged  (absence  from 
courtroom)  is  of  such  a  character  as  to  demand  relief."  Per  Horton,  C.  J., 
in  Green  v.  Bulkley,  23  Kans.  130  (1879).  Alotions  for  new  trials  on  the 
ground  of  surprise  present  a  great  variety  of  circumstances.  See  De  Giou  v. 
Dover,  2  Anst.  517  (1795);  Richardson  V.  Fisher,  i  Bingh.  145  (1823); 
Ains-ci'orth  V.  Sessions,  I  Root  (Conn.)  175  (1790);  McQueen  v.  Stewart,  7 
Ind.  535  (1S56)  ;  Archer  v.  Heidi,  55  Ga.  200  (1875),  mistake  of  witness; 
Iseley  v.  Love  joy,  8  Blackf.  (Ind.)  462  (1847);  Land  v.  Miller,  7  Tex.  463 
(1852)  ;  Hel-d.ig  v.  Railroad  Co.,  9  Misc.  61,  29  N.  Y.  S.  9,  59  N.  Y.  St.  540 
(1894),  intoxication  or  insanity  of  witness;  Cutler  V.  Rice,  14  Pick.  (Mass.) 
494  (1833)  ;  Greene  v.  Farlow,  138  Mass.  146  (1884),  oversight  of  counsel; 
Jackson  v.  Warford,  7  Wend.  (N.  Y.)  62  (1831)  ;  Schellons  v.  Ball,  29  Cal. 
605  (1866)  ;  Holbrook  v.  Nichol,  36  111.  161  (1864)  ;  Croner  v.  Insurance  Co., 
18  App.  Div.  263,  46  N.  Y.  S.  108  (1897)  ;  Peterson  v.  Barry,  4  Binn  (Pa  ) 
481  (1812)  ;  Martin  v.  Marvine,  i_Phila2JTa.l  280^9  Leg^ntj  (Pa.)  (I8^2)  ; 
Green  v.  IVilmington  Trust  CoTrS7^Atl.  885,  27  Del.  232  O912)  ;  Ltisepool 
L  L.  G.  T.  Co.  v.  Wright,  158  Ky.  290,  164  S.  W.  952  (1914),  unexpected 
character  of  evidence;  Rogers  v.  Niagara  Ins.  Co.,  2  Hall  (N.  Y.)  559  (1829)  ; 
Chinn  V.  Taxlor,  64  Tex.  385  (1885);  Hapgoods  v.  Lusch,  No.  2,  123  App. 
Div.  27,  107  N.  Y.  S.  334  (1907),  unexpected  ruling;  Miller  v.  Layne,  84  Minn. 
221,  87  N.  W.  605   (1901),  unavoidable  absence  of  party. 

*^he  arguments  of  counsel  and  concurring  opinion  of  Williams,  L.  J., 
are  omitted. 


YOUNG   V.    KERSHAW  477 

accusing  the  plaintiffs  of  adultery.  The  jury  found  verdicts  for  the 
plaintiffs.  The  defendant  now  applies  for  a  new  trial,  and  the  only 
ground  upon  which  that  application  is  really  made  is  that  new  evi- 
dence has  been  discovered  which  could  not  have  been  adduced  at 
the  trial.  It  is  stated  that  two  witnesses  have  since  been  found. 
Now,  what  is  the  rule  as  to  granting  a  new  trial  in  order  to  enable  a 
party  to  adduce  new  evidence  after  an  action  has  once  been  decided 
by  a  jury  ?  It  seems  to  me  that  the  cases  which  have  been  referred 
to  show  that  a  new  trial  may  be  granted  if  new  evidence,  which 
could  not  have  been  obtained  before,  has  been  discovered,  vv^hich  if 
it  had  been  adduced  at  the  trial,  would  have  been  conclusive,  so 
that  the  verdict  must  have  been  found  otherwise  than  it  was.  I 
think  that  is  the  rule,  apart  from  all  the  authorities,  which  I  will  not 
discuss.  That  being  so,  what  is  the  new  evidence  in  this  case  which 
the  defendant  has  discovered?  Would  that  evidence  have  been  con- 
clusive of  this  case  if  it  had  been  adduced  at  the  trial  ?  In  my  opinion 
it  is  evidence  obtained  under  suspicious  circumstances,  and  for  that 
reason  alone  I  think  that  it  can  not  be  considered  as  conclusive." 
Further,  it  would  only  amount  to  oath  against  oath,  and  that  is  not 
enough,  as  was  pointed  out  in  Anderson  v.  Titmas,  36  L.  T.  711,  by 
Huddleston,  B.  How  can  it  be  said  that  this  evidence,  if  adduced, 
would  be  conclusive  ?  Therefore  this  case  does  not  come  within  the 
rule  as  to  granting  a  new  trial  upon  the  ground  that  new  evidence 
has  been  discovered  since  the  trial.  The  appeals  must  therefore  be 
dismissed, 

Collins,  L.  J. :  I  am  of  the  same  opinion.  The  only  question 
which  has  been  argued  is  whether  or  not  the  defendant  is  entitled  to 
a  new  trial  foi  the  purpose  of  adducing  new  evidence  which  he  has 
discovered  since  the  trial.  It  is  a  matter  of  the  greatest  importance, 
and  has  always  been  so  treated  by  the  courts,  that  all  material  evi- 
dence, which  could  with  reasonable  skill  and  diligence  be  produced 
at  the  trial,  shall  be  the  only  evidence  which  can  be  considered,  and 
must  be  adduced  at  the  trial.  It  is  obviously  in  the  public  interests 
that  parties,  who  have  gone  through  the  ordeal  of  litigation  and  have 
had  their  rights  settled  at  the  trial,  should  not  afterwards  be  allowed 
to  patch  up  the  weak  parts  and  fill  up  the  omissions  in  their  case  by 
means  of  fresh  evidence.  That  is  a  rule  of  great  importance.  It  is 
true  tliat  in  special  and  exceptional  circumstances  a  new  trial  has 
been  granted  because  new  evidence  has  been  discovered.  But  the 
rule  which  permits  that  to  be  done  is  fenced  around  with  many  limi- 
tations. The  party  asking  for  the  new  trial  must  show  that  tliere 
was  not  remissness  on  his  part  in  adducing  all  possible  evidence  at 


"A  new  trial  will  not  be  granted  where  the  new  evidence  is  untrust- 
worthy or  suspicious.  McDonald  V.  People,  123  111.  App.  346  (1905)  ;  Boiakosky 
V.  Phila.  &  R.  Co.,  126  Fed.  230  (1903)  ;  Parker  v.  Hardy,  41  Mass.  246 
(1837)  ;  Greenleaf  v.  Grounder,  84  Maine  50,  24  Atl.  461  (1891)  ;  Hueser  v. 
Transportation  Co.,  143  App.  Div.  494,  128  N.  Y.  S.  415  (1911).  Compare 
Peyser  v.  Coney  Island  R.  Co.,  81  Hun  70,  30  N.  Y.  S.  610,  62  N.  Y.  St.  543 
(1894)  ;  Green  v.  Peoples  T.  Co..  =;  Pa.  Dist  R.  284  (i8q6)  -Laird  V.  Ahl,  140 
App.  Div.  659,  125  N.  Y.  S.  527  (1910) ;  Uoldstein  v.  T^asi  Fallow  field  Tp.,  43 
Pa.  Super.  Ct.  158  (1910). 


.j-S  TRIAL 

the  trial.  Then  ac;niii.  ns  to  the  class  of  new  evidence  the  rule  is  that 
the  new  cvitlence  must  be  such  that,  if  adduced,  it  would  be  prac- 
tically conclusive — that  is,  evidence  of  such  a  class  as  to  render  it 
])robable  almost  beyond  doubt  that  the  verdict  would  l)e  dillerent. 
In  some  of  the  cases  which  have  been  cited  the  new  evidence  came 
in  to  corroborate  evidence  which  was,  although  not  contradicted, 
weak  at  the  trial,  and  that  corroboration  made  the  previous  weak, 
but  uncontradicted,  evidence  practically  conclusive.  The  other  cases 
were  cases  in  which  the  new  evidence  consisted  of  documents  which 
were  not  impeached  and  were  conclusive.  The  case  which  was  most 
relied  ui^on  by  the  appellant — Anderson  v.  Titmas,  36  L.  T.  711 — 
does  not  support  his  contention  at  all,  but  is  really  against  him,  and 
is  nearly  on  all  fours  with  the  present  case.  In  that  case  the  new 
evidence  was  evidence  to  support  the  evidence  of  the  defendant  at 
the  trial  which  was  contradicted  by  the  plaintiff,  and  it  was  held 
that  such  evidence  was  no  ground  for  granting  a  new  trial.  There 
is  notliing  more  than  that  in  the  new  evidence  in  this  case.  It  is  sim- 
ply new  evidence  to  contradict  evidence  given  at  the  trial.  Looking 
at  this  new  evidence,  how  can  it  be  said  that,  if  adduced,  it  would  be 
conclusive  or  even  render  it  probable  that  the  verdict  w^ould  be  dif- 
ferent? This  case,  therefore,  falls  far  short  of  any  principle  upon 
w-hich  the  courts  have  ever  granted  a  new  trial  upon  the  ground  of 
the  discovery  of  fresh  evidence.  I  agree  that  the  appeal  must  be 
dismissed. ^- 

Appeal  dismissed. 


^-Before  granting  a  new  trial  the  court  will  consider  the  weight  and 
probable  effect  of  the  new  evidence.  There  are  many  authorities  which 
declare,  as  in  the  principal  case,  that  the  new  evidence  must  be  such  as  to 
render  a  different  result  reasonably  certain.  Mechanics'  Ins.  Co.  v.  Nichols, 
16  N.  J.  L.  410  (1S38)  ;X^mm.Ji.-ElatiaciaruJZ\Yaits.  &  S.  (Pa.)_AL=;  (1844) ; 
Finclite  v.  f  indite.  68  Hun  (N.  Y.)  82,  22  N.  Y.  S.  729,  52  N.  Y.  St.  243 
(1893)  ;  State  v.  67am,  82  Maine  472  (1S90)  ;  Larsen  v.  Onesite,  21  Utah,  38,  59 
Pac.  234  (1900);  People  v.  McCitUoiigh.  210  111  488,  71  N.  E.  602  (1904); 
L.  &  N.  R.  Co.  V.  Ueltsch,  31  Ky.  L.  931,  104  S.  W.  320  (1907),  or,  at 
least  probable,  Hoban  v.  Sand  ford,  64  N.  J.  L.  426,  45  Atl.  819  (1900); 
JVatson  V.  Roth,  191  111.  382  (1901)  ;  Parsons  v.  Lewiston,  B.  &  B.  S.  R.  Co., 
96  Maine  503  (1902)  ;  Romaine  v.  Spring  Valley,  120  App.  Div.  501,  105  N.  Y. 
S.  256  (1907)  ;  Grafton  v.  Ball,  164  App.  Div.  70,  149  N.  Y.  S.  447  (1914)  ; 
Vansant  v.  Kotvalcivski  (Del.),  90  Atl.  421  (i9U)  ;  Wcichman  v.  Kast,  157 
Wis.  316,  147  N.  W.  369  (1914).  "It  is  not  necessary  that  the  newly  dis- 
covered evidence  should  be  such  as  to  require  a  different  verdict,  but  there 
must  be  a  probability  that  the  verdict  would  be  different  upon  a  new  trial." 
Cobb  v.  Cogswell,  in  Maine  336,  89  Atl.  137  (1913). 


KILBY   V.    ERWIN  479 

x^      KILBY  V.   ERWIN. 
Supreme  Court  of  Vermont,  191  i. 

84   Vt.  2.t^ 

Action  on  the  case  for  damage  to  plaintiff's  sugar  maple  trees 
caused  by  fires  claimed  to  have  spread  from  defendant's  land.  At 
the  trial  the  defendant's  motion  for  a  continuance,  to  enable  him  to 
procure  a  plan  showing  the  course  of  the  fires,  was  refused.  Verdict 
and  judgment  for  plaintiff.  Defendant  excepted  and  also  petitioned 
for  a  new  trial.  In  addition  to  reversing  judgment,  the  court  dis- 
posed of  the  petition  for  a  new  trial  as  follows  :^^ 

MuNSON,  J. :  The  matter  of  costs  makes  it  necessary  to  dispose 
of  the  petition  for  a  new  trial.  We  think  the  case  discloses  evidence 
which  would  have  an  important  bearing  upon  the  main  issue  on  a  re- 
trial, and  certainly  would  be  likely  materially  to  change  the  result  as 
regards  the  amount  of  damage  sustained.  The  desired  proof  was 
something  which  the  petitioner  believed  to  exist,  and  knew  where  to 
look  for,  but  was  unable  to  get  at.  He  seasonably  moved  for  a  con- 
tinuance which  would  enable  him  to  procure  it,  but  was  required  to 
go  to  trial  without  it.^*  He  now  produces  evidence  of  conditions 
which  he  was  then  unable  to  establish.  This  evidence  is  newly  dis- 
covered within  the  spirit  of  the  rule,  if  not  within  the  letter  of  it. 

It  appears  that  the  writ  was  served  December  third,  that  counsel 
was  employed  the  next  day,  and  that  on  the  day  following  there 
came  a  heavy  fall  of  snow,  which  remained  on  the  ground  until  after 
the  term  at  which  the  case  was  tried.  The  plaintiff  had  prepared  for 
the  suit  by  having  a  plan  made  and  the  premises  examined  by  persons 
who  were  afterwards  called  as  witnesses.  The  petitioner  knew  of 
the  plaintiff's  claim,  but  due  diligence  did  not  require  that  he  incur 
the  expense  of  preparation  until  the  suit  was  commenced.  After  the 
snow  fell  no  adequate  examination  was  possible. 

The  petition  characterizes  the  refusal  of  the  court  to  grant  a 

"Only  so  much  of  the  case  as  relates  to  the  motion  for  a  new  trial  is 
printed.   The  statement  of  facts  is  supplemented  from  the  syllabus. 

^^Jackson  V.  Malin,  15  Johns.  (N.  Y.)  293  (1818)  ;  Hanly  v.  Blanton,  i 
Mo.  49  (1821)  ;  Smith  V.  Smith,  119  Cal.  183,  48  Pac.  730,  51  Pac.  183  (1897). 
The  court  is  not  required  to  grant  a  new  trial  on  the  ground  of  new  evidence 
unless  the  evidence  could  not  have  been  discovered  and  produced  at  the 
trial  by  the  exercise  of  reasonable  diligence.  Lccdony  v.  Pancake,  4  Yeates 
(Pa.)  183  (1805);  People  v.  Superior  Ct.,  5  Wend.  (N.  Y.)  115  (1830); 
Thomas  v.  Consolidated  Traction  Co.,  62  N.  J.  L.  36,  42.  Atl.  1061  (1898)  ; 
Damon  v.  Carrol,  167  Alr.ss.  198,  45  N.  E.  85  (1896)  ;  Edwards  v.  Foote,  129 
Mich.  121,  88  N  W.  404  (1901)  ;  Zimmerman  v.  Wcigcl,  158  Ind.  370,  63  N.  E. 
566  (1901)  ;  Chicago  v.  McNalley,  227  111.  14,  81  N.  E.  23  (1907)  ;  Cameron 
V,  f^y.z.<:rll,  /|o  P:i.  Suner.  Ct.  40s  (iQoq)  ;  Rockivcll  v.  Italian  Swiss  Co.,  10 
Cal.  App.  633,  103 Tac.  162  (1909)  ;  Green  v.  li'ilmington  Trust  Co.,  27  Del. 
232,  187  Atl.  885  (1912)  ;  Cobb  v.  Cogswell,  in  Maine  336,  89  Atl.  137  (1913)  ; 
Adam  Roth  G.  Co.  v.  Hotel  Monticello  Co.,  183  Mo.  App.  429,  166  S.  W.  1125 
(1914)  ;  Hubbard-Zemurray  Steamship  Co.  v.  Crescio,  179  111.  App.  56  (1914)  ; 
Daly  V.  Gregg,  91  Kans.  506,  138  Pac.  614  (1914)  ;  Robinson  v.  Smith,  112 
Law  Times  929  (1915). 


^SO  TRIAL 

continuance  as  an  abuse  of  its  discretion,  and  makes  this  the  basis  of 
the  apjihcation ;  but  the  substance  of  the  complaint  is  the  petitioner's 
inability  to  have  certain  evidence  which  a  continuance  would  enable 
him  to'procure;  and  the  (jucstion  has  been  ars:ued  as  one  of  newly 
discovered  evidence.  The  jictitionee  contends  that  the  new  evidence 
is  merely  corroborative  of  that  given  on  the  trial  by  the  petitioner  in 
descriliing  an  examination  he  made  soon  after  the  fire,  and  that  it 
does  not  appear  but  that  the  same  facts  might  have  been  shown  by 
some  of  those  who  fought  or  watched  the  iire  at  different  stages  of 
its  progress.  It  is  evident  that  an  accurate  plan,  showing  completely 
and  in  detail  the  course  and  spreading  of  the  several  fires,  produced 
in  connection  with  the  testimony  of  witnesses  who  had  made  a  par- 
ticular examination  of  the  premises  for  the  purpose  of  testifying 
fully  as  to  the  source  and  extent  of  the  injury,  would  be  something 
quite  different  from  any  evidence  which  the  petitioner  could  possibly 
produce  in  tlie  circumstances  in  which  the  case  was  tried.^^ 
Petition  sustained. 


"Newly  discovered  evidence  that  is  cumulative  merely,  will  not  warrant 
a  new  trial.  Pike  v.  Evons,  15  Johns.  (N.  Y.)  210  (1818)  ;  Kirk  v.  Rickerson, 
46  N.  J.  L.  13  (1884)  ;  Trocdcr  v.  Hyams,  153  Mass.  536,  27  N.  E.  775  (1891)  ; 
Slattcrvv.  Supreme  Tent,  19  Pa.  Super.  Ct.  108  (1902)  ;  NortJnvestern  El.  & 
Grain  CoTv.  Smilev,  154  1117 App.  351  Zi9iO)TT-indstrom  V.  Fitzpatrick,  105 
Minn.  331,  117  N.  W.  441  (1908) ;  Harrell  v.  Southern  S.  P.  Co.,  6  Ga.  App. 
"^SS,  65  S.  E.  305  (1909)  ;  Mellincier  v.  Pcnna.  E,^0^.j22Q_J'3..  122.  78  All.  66 
"(1910);  Purccll  Envelope  Co.  v.  United  States,  48  Ct.  of  CI.  (U.  S.)  66 
(1913)  ;  In  re  Waldcn,  166  Cal.  446,  I37  Pac  35  (1913)  ;  ^^«''^  v.  Fink,  125 
Minn.  401,  147  N.  W.  279  (1914).  "Evidence  is  cumulative  which  merely 
multiplies  witnesses  to  any  one  or  more  of  the  facts  before  investigated,  or 
onlv  adds  other  circumstances  of  the  same  p;cneral  character.  But  that  evi- 
dence which  brings  to  light  some  new  and  independent  truth  of  a  different 
character,  although  it  tend  to  prove  the  same  proposition  or  ground  of  claim 
before  insisted  on,  is  not  cumulative  within  the  true  meaning  of  the  rule." 
Waller  v.  Graves,  20  Conn.  305  (1850)  ;  Broadhead  v.  Marshall,  2  Wm.  Bl. 
955  (1774")  ;  Smith  v.  Atkins,  18  Vt.  461  (1846)  ;  People  v.  Superior  Court,  10 
Wend.  (N.  Y.)  286  (1833)  ;  McCreery  Co.  v.  Equitable  B.,  54  Misc.  508,  104 
N.  Y.  S.  959  (1907)  ;  Parker  Washington  Co.  v.  St.  Louis  Transit  Co.,  131 
Mo.  App.  508,  109  S.  W.  1073  (1908),  where  it  was  discovered  after  trial 
that  plaintiff  did  not  own  the  property  damaged.  Union  Cent.  Life  Ins.  Co.  v. 
Loughmiller,  33  Ind.  App.  309,  69  N.  E.  264  (1904)  ;  Robinson  v.  Smith,  112 
Law  Times  929  (1915).  Direct  and  circumstantial  evidence  are  not  cumula- 
tive of  each  other.  Cuyoi  v.  Butts,  4  Wend.  (N.  Y.)  579  (1830)  ;  Dundee 
Mfg.  Co.  V.  Van  Riper,  33  N.  J.  L.  152  (1868);  Dierloff  v.  Winterfield,  26 
Wis.  175  (1870)  ;  Dent  v.  Simpson,  81  Kans.  217,  105  Pac.  542  (1909)  ;  Tucker 
V.  Wyoming  Coal  M.  Co.,  18  Wyo.  97,  104  Pac.  529  (1900).  So,  also,  direct 
and  opinion  evidence  are  not  cumulative.  Humphries  v.  Marshall,  12  Ind.  609 
(1859)  ;  Cole  v.  Cole,  50  How.  Pr.  (N.  Y.)  59  (1875).  Thus,  the  testimony  of 
a  surgeon  that  upon  operating  he  found  certain  conditions  is  not  merely 
cumulative  to  that  of  a  physician  that  upon  an  external  examination  he  con- 
cluded such  conditions  existed.  Bousman  v.  Stafford,  71  Kans.  648,  81  Pac.  184 
(1905).  Where  the  contents  of  a  lost  instrument  has  been  established  by 
secondary  evidence,  the  original,  if  found,  will  be  merely  cumulative,  Wis- 
consin R.  Co.  v.  Ross,  142  111.  9,  31  N.  E.  412  (1892)  ;  Ray  v.  Baker,  165  Ind 
74,  74  N.  E.  619  (1905),  unless  the  evidence  as  to  the  contents  of  the  origmal 
was  conflicting  and  the  applicant  suffered  for  want  of  the  original,  Piatt  v. 
Munroe,  34  Barb.  (N.  Y.)  291  (1861)  ;  Protection  L.  L  Co.  v.  Dill,  91  HI-  I74 
(1878)  ;  Win  field  Building  &  Loan  Assn.  v.  McMiillen,  59  Kans.  493,  53  Pac 
481  (1898). 


FERRAND  V.    BINGLEY  TP.  DIST.  LOCAL  BOARD         481 

FERRAND  v.  BINGLEY  TOWNSHIP  DISTRICT  LOCAL 
.0^  BOARD. 

/^    - 

(  Court  of  Appeal,  1891. 

8  Times  Law  Reports  70 

This  was  an  action  of  trespass.  The  defendants  had  pulled  down 
an  obstruction  erected  by  the  plaintiff  upon  what  the  defendants 
alleged  to  be  a  public  footway.  The  right  of  way  claimed  was  over 
the  plaintiff's  land.  The  action  was  tried  before  Mr.  Justice  Day  and 
a  special  jury  at  Leeds,  when  the  jury  found  a  verdict  for  the  de- 
fendants— that  is,  in  favor  of  the  right  of  way  claimed.  The  plain- 
tiff moved  for  a  new  trial  upon  the  ground  that  the  verdict  was 
against  the  weight  of  the  evidence. 

Mr.  Gainsford  Bruce,  Q.  C,  and  Mr.  Whitaker  Thompson  ap- 
peared for  the  plaintiff;  Mr.  Tindal  Atkinson,  Q.  C,  and  Mr.  L.  A. 
Kershaw  appeared  for  the  defendants. 

Lord  Esher,  the  Master  of  the  Rolls,  said  that  it  was  necessary 
again  to  deal  with  the  rule  as  to  granting  new  trials  which  had  been 
laid  down  by  the  court  of  appeal  and  recognized  by  the  House  of 
Lords.  There  was  always  a  preliminary  question  to  be  determined — 
namely,  whether  there  was  any  evidence  to  go  to  the  jury;  and  it 
has  been  laid  down  that,  if  the  evidence  was  such  that  no  reasonable 
man  acting  carefully  could  find  for  the  party  upon  whom  the  burden 
of  proof  rested,  then  there  was  no  evidence  to  go  to  the  jury.  The 
old  doctrine  of  a  scintilla  of  evidence  had  disappeared.  If  there 
was  some  evidence  to  go  to  the  jury,  then  the  question  arose  whether 
the  court  could  interfere  with  the  verdict  upon  the  ground  that  it 
was  against  the  weight  of  the  evidence.^^  This  court  and  the  House 
of  Lords  had  laid  down  the  rule  applicable  to  such  a  case,  and  the 
rule  so  laid  down  was  nearly  as  strong  as  the  rule  laid  down  upon 
the  first  point."  But  if  that  rule  was  pressed  too  far,  it  would  be- 
come the  same  as  the  rule  on  the  first  point.  If  it  were  so  pressed, 
then  the  result  would  be  that  the  court  could  never  grant  a  new  trial 

"Because  the_  court  was  not  justified,  upon  the  evidence  presented,  in 
entering  a  nonsuit  or  directing  a  verdict,  it  does  not  follow  that,  upon  a 
review  of  the  jury's  action  upon  such  evidence,  the  verdict  may  not  be  set 
aside,  as  against  the  weight  of  the  evidence.  Kinsman  v.  New  York  Miit.  Ins. 
Co.,  5  Bosw.  (N.  Y.)  160  (1859)  ;  Lockwood  v.  Atlantic  Mut.  Ins.  Co.,  47  Mo. 
50  (1870)  ;  Denver  Tramzvay  Co.  v.  Oivens,  20  Colo.  107,  36  Pac.  848  (1894)  ; 
Metropolitan  R.  Co.  v.  Moore,  121  U.  S.  558,  30  L.  ed.  1022,  7  Sup.  Ct.  1334 
(1887)  ;  Clark  v.  Jenkins,  162  Mass.  397,  38  N.  E.  974  (1894)  ;  Mt.  Adams  & 
E.  P.,  &€.,  R.  Co.  v.  Lowery,  74  Fed.  463  (1896)  ;  Voge  v.  Pcnnev,  74  Minn.  525, 
77  N.  W.  422  (1898)  ;  Series  v.  Scries,  35  Ore.  289,  57  Pac.  634  (1899)  ;  Larkin 
V.  United  Traction  Co.,  76  App.  Div.  238,  78  N.  Y.  S.  538  (1902).  Contra: 
Hensley  v.  Davidson,  13^  Iowa  106,  112  N.  W.  227  (1907). 

^'' Ryder  v.  IVomhwcll,  L.  R.  4  Exch.  32  (1868);  Dublin,  Wicklow  & 
Wexford  R.  Co.  v.  Slatterv,  L.  R.  3  App.  Cas.  ims  (1878);  Solomon  v. 
Bitton,  L.  R.  8  Q.  B.  Div.  176  (1878)  ;  Webster  v.  Fricdberg,  L.  R.  172,  O. 
B.  Div.  736  (1886);  Metropolitan  R.  Co.  v.  Wright,  L.  R.  11  App.  Cas.  152 
(1886)  ;  Brisbane  v.  Martin,  L.  R.  App.  Cas.  249  (1894)  ;  Toronto  R.  Co.  v. 
King,  L.  R.  App.  Cas.  260  (1908). 

31 — Crv.  Prog. 


4^2  TRIAL 

on  the  groiiml  of  the  verdict  being  against  the  weight  of  evidence. 
This  conrt  liad  never  said  so,  but  it  had  said  tliat  it  would  not  inter- 
fere unless  for  the  strongest  reasons  possible.  But  it  had  not  said 
that  it  would  never  interfere.  The  court  would  not  interfere  merely 
upon  the  ground  that  the  case  upon  one  side  was  stronger  than  the 
case  upon  the  other.  The  court  must  say  in  the  present  case  whetlier 
the  diliiculties  in  the  way  of  the  defendants'  case  were  not  so  great 
that  the  jury  must  liave  dealt  with  the  evidence  wrongly.  (His  lord- 
ship tlien  went  through  the  evidence,  and  said  that  the  weight  of 
the  e\  idence  so  greatly  preponderated  in  favor  of  the  plaintiff  that 
the  verdict  was  unsatisfactory,  and  the  case  must  be  tried  again.) 

LoKD  Justice  Lopes  concurred.  It  had  been  laid  down  that  the 
verdict  of  a  jury  ought  not  to  be  disturbed  luilcss  it  was  one  which  a 
jury,  viewing  the  evidence  reasonably,  could  not  properly  find. 
That  did  not  say  that  a  new  trial  ought  not  to  be  granted  if  the  evi- 
dence strongly  preponderated  on  one  side,  as  it  would  be  tantamount 
to  saying  that  a  verdict  ought  not  to  be  disturbed  no  matter  how 
strongly  against  the  weight  of  the  evidence  it  might  be. 

Lord  Justice  Kay  agreed.  The  verdict  must  be  very  strongly 
against  the  evidence  to  induce  the  court  to  grant  a  new  trial. 

New  trial  granted.^* 


"It  is  within  the  discretion  of  the  court  to  grant  a  new  trial  where  the 
verdict  is  contrar}-  to  the  evidence  or  againr-t  the  weight  of  the  evidence,  and 
because  it  is  a  matter  of  discretion  it  is  difficult  to  lay  down  rules  as  to  the 
limits  of  this  power.  In  IlUnois  it  has  been  said:  "If  a  verdict  is  manifestly 
against  the  weight  of  the  evidence,  it  is  not  necessary  that  it  should  further 
appear  that  it  was  not  the  result  of  the  impartial  and  honest  judgment  of  the 
jury,  nor  that  it  resulted  from  prcjiidicc,  passion  or  some  improper  motive  or 
condition.  To  permit  a  verdict  wliich  is  clearly  and  manifestly  against  the 
weight  of  the  evidence  to  stand,  upon  the  supposition  that  the  jury  were 
impartial  and  honest,  would  be  as  unjust  and  injurious  to  the  defeated  party 
as  though  it  proceeded  from  passion,  prejudice  or  some  improper  motive." 
Donelson  v.  East  St.  Louis  K.  Co.,  235  III.  625  (1908)  ;  frick  V.  Aurora,  &c.  R. 
Co.,  154  111.  App.  277  (1910).  On  the  other  hand,  in  Connecticut,  it  has  been 
said:  "To  justify  the  setting  aside  of  a  verdict,  such  verdict  should  in  the 
opinion  of  the  court  be  manifestly  and  palpably  erroneous;  should  be  so 
manifestly  against  the  evidence  as  to  indicate  that  the  minds  of  the  jurj-men 
were  not  open  to  reason  and  conviction,  or  that  an  improper  influence  was 
brought  to  bear.  A  new  trial  should  be  granted  only  when  manifest  injustice 
has  been  done,  and  when  the  wrong  is  so  plain  and  palpable  as  to  exclude  all 
reasonable  doubt  of  its  existence,  and  clearly  to  denote  that  some  mistake 
has  been  made  by  the  jury  in  the  application  of  legal  principles,  or  to  justify 
the  suspicion  of  corruption,  prejudice,  or  partiality  of  the  jurj'."  Atwood  V. 
Richer,  83  Conn.  171,  76  Atl.  306  (1910)  ;  Read  v.  Atlas  Co.,  83  Conn.  167, 
76  Atl.  465  (1910)  ;  Berkouita  v.  Gas  Co.,  134  App.  Div.  389,  119  N.  Y.  S. 
100  (1909);  Gottlieb  V.  Constant,  70  Misc.  380,  127  N.  Y.  S.  250  (1911); 
Louisville  /.  T.  R.  Co.  v.  Roemmele,  157  Ky.  84,  162  S.  W.  547  (1914)  ; 
Carrier  v.  Donovan,  88  Conn.  27,  89  Atl.  894  (1914)  ;  Edzvards  v.  U'illcy,  218 
Mass.  363,  105  N.  E.  986  (1914).  The  disposition  of  each  case  will  depend 
upon  its  particular  facts,  but  if  the  verdict  is  clearly  and  decidedly  against 
the  weight  of  the  evidence,  there  is  ground  for  a  new  trial.  See  Kohne  V. 
Ins.  Co.  of  N.  America,  i  Wash.  (C.  C.)  123,  Fed.  Cas.  No.  7921  (1804)  ; 
S'ii;  earing  en  \.  Birch.  4  Yeates  (Pa.)  322  (1806)  ;  Aitken  v.  McMeckan,  L.  R. 
riggFTATCriTon^TJi  V.  CVarfe.  19  PaTT:.  C.  286  (iSq?)  ;  Lee  v.  Chicago  M. 
&  O.  R.  Co.,  loi  W^is.  352,  yj  N.  W.  714  (1898)  ;  Gnnn  v.  Union  R.  Co.,  22  R. 
I.  579,  48  Atl.  1045  (1901)  ;  Ho'cL'e  v.  Raymond,  74  Conn.  68,  49  Atl.  854  (1901)  : 
Spoke  V.  Thomas,  114  Tenn.  458  (1904)  ;  Phillips  v.  Laughlin,  99  Maine  26 


DUXNIXG  V.    CROFUTT  483 


SAMUEL  S.  DUNNING,  TRUSTEE,  v.  FREDERICK  B. 
CROFUTT. 


/^ 


Supreme  Court  of  Errors  of  Connecticut,  1908. 

81    Conn.    loi 

Replevin  for  one  gray  mare,  three  colts  and  a  quantity  of  hay, 
corn  and  tobacco,  attached  by  the  defendant  officer  as  the  property 
of  William  W.  Foote  in  an  action  in  favor  of  Edward  E.  Harrison 
and  replevied  by  the  plaintiff,  Samuel  S.  Dunning,  as  trustee  under 
the  will  of  Sherman  Foote,  who  had  devised  his  farm  to  the  plain- 
tiff in  trust,  with  a  direction  that  his  son  William  W.  Foote  should 
be  allowed  to  live  on  the  farm.  The  verdict  was  for  the  plaintiff  for 
all  the  property  except  the  gray  mare,  which  was  by  the  verdict  di- 
rected to  be  returned  to  the  defendant.  The  defendant  having  moved 
for  a  new  trial,  the  court  ordered  that  the  verdict  should  be  set  aside 
unless  the  plaintiff  surrendered  tlie  three  colts  to  the  defendant.  The 
plaintiff  having  failed  to  do  so,  the  verdict  was  set  aside  and  plaintiff 
appealed.^^ 

Hall,  J. :  Without  repeating  here  the  evidence  before  us  regard- 
ing the  purchase  of  the  gray  mare  and  the  payment  of  the  expense 
of  getting  her  colts,  it  is  sufficient  to  say  of  it,  that  we  deem  it 
ample  to  sustain  the  conclusion  manifestly  reached  by  the  jury  in 
ordering  the  gray  mare  returned  to  the  defendant,  that  she  w^as  not 
purchased  by  the  plaintiff;  that  he  had  no  interest  whatever  in  her, 
but  that  she  was  bought  and  placed  upon  the  farm  by  William  W. 
Foote;  and  that  the  question  of  the  title  to  the  mare  having  been 
thus  settled  by  the  verdict,  and,  evidently,  in  the  only  manner  thought 


(1904);  Coalmer  v.  Barrett,  61  W.  Va.  237,  56  S.  E.  385  (1907);  Bond  v. 
Penm^.  Co^^2i8Pa.  34,  66  Atl.  983  (1907)  ;  Black  v.  Virginia  P.  C.  Uo.i^W^ 
Va.  121,  55  S.  E.  587  (1906)  ;  Scanncll  v.  Boston  E.  R.  Co.,  208  Mass.  513,  94 
N.  E.  696  (1911)  ;  Bauer  v.  Montague  M.  Co.,  163  App.  Div.  (N.  Y.)  589, 
148  N.  Y.  S.  990  (1914)  ;  Maynard  v.  Des  Moines,  159  Iowa  126,  140  N.  W. 
208  (1913).  Where,  however,  there  is  a  conflict  of  evidence,  a  verdict 
against  the  bare  preponderance  of  evidence  will  not  be  disturbed  on  that 
ground  alone.  Camden  V.  Coivley,  I  Wm.  Bl.  417  (1763)  ;  Szi'ain  v.  Hall,  3 
Wils.  C.  P.  45  (1770);  Peters  V.  Phoenix  Ins.  Co.,  3  Serg.  &  R.  (Pa.)  25 
(1817)  ;  Rice  v.  Welling,  5  Wend.  (N.  Y.)  595  (1830)  ;  Bloom  v.  Crane,  24 
111.  48  (i860)  ;  Commissioner  for  Railways  V.  Brown,  L.  R.  13  App.  Cas.  133 
(1887)  ;  Shepherd  V.  Camden,  82  Maine  535,  20  Atl.  91  (1890)  ;  Pringle  v.  Guild, 
119  Fed.  962  (1903)  ;  Lewis  v.  Roby,  79  Vt.  487,  65  Atl.  524  (1907)  ;  Boyd  v. 
Bangor  R.  &c.  Co.,  ill  Maine  332,  89  Atl.  139  (1913)  ;  Cardivcll  v.  Norfolk 
&  W.  R.  Co,.  114  Va.  500,  yy  S.  E.  612  (1913)  ;  Florida  East  Coast  R.  Co.  v. 
Hayes,  66  Fla.  589,  64  So.  274  (1914). 

Under  codes  authorizing  new  trials  where  the  verdict  is  "contrary"  to 
the  evidence,  a  new  trial  may  be  granted  where  the  verdict  is  not  sustained 
by  sufficient  evidence.  "Both  forms  of  expression  mean  when  the  weight  of 
the  evidence,  as  a  whole,  is  not  sufficient  to  justify  the  verdict."  Knote  v. 
De  Shirley,  84  Kans.  738,  115  Pac.  539  (1911)  ;  Ferguson  v.  Gill,  74  Hun  566, 
26  N.  Y.  S.  596,  57  N.  Y.  St.  213  (1893)  ;  Krakoiver  v.  Davis,  20  Misc.  350, 
45N.  Y.  S.  780  (1897). 

"The  statement  of  facts  is  abridged  from  the  opinion  of  the  court,  a  part 
only  of  which  is  printed. 


484  TklAL 

by  the  trial  juilgc  to  1)C  justifiable  upon  the  evidence,  it  followed,  in 
the  absence  of  evidence  showing  that  any  other  than  the  general 
rule  should  be  applied,  that  the  ownership  of  the  dam  carried  the 
title  to  the  three  colts  which  were  conceded  to  be  her  offspring. 
2  A.  ^:  E.  Encyc.  of  Law  (2d  cd.),  34S.  The  trial  court,  therefore, 
conitnitted  no  error  in  holding  that  the  verdict  awarding  the  three 
colts  to  the  ])laintill'  was  against  the  evidence.-*^ 

But  the  ]ilaintiit  has  no  good  groiuid  to  complain  because  he 
must  retry  the  question  of  ownership  of  property  which  the  jury  has 
properly  found  belonged  to  him.  He  could  have  avoided  such  re- 
trial if  he  had  surrendered  that  which  the  jury  unlawfully  awarded 
to  him.  To  secure  a  further  opportunity  of  contesting  the  c[uestion 
of  ownership  of  the  colts  he  was  willing  to  risk  the  expense  and 
uncertain  result  of  a  new  trial  of  the  entire  case. 

There  is  no  error. 


SAVERY  r.  BUSICK. 

Supreme  Court  of  Iowa,  1861. 
II  lo-ii'a  487. 

On  the  twelfth  of  October,  1857,  defendant  confessed  a  judg- 
ment before  tlie  clerk  of  the  district  court  for  the  sum  of  three 
hundred  and  nine  dollars  and  fifty  cents,  being  the  supposed  balance 
due  the  plaintiff  on  a  fifteen  hundred  dollar  note,  dated  the  twenty- 
first  of  July  and  payable  in  six  months.  It  was  afterwards  ascer- 
tained that  a  mistake  had  been  made  in  the  computation  of  interest 


*°In  settinp:  aside  a  verdict  as  "contrarj'  to  law,"  the  phrase  "means  that 
t'^e  verdict  is  one  which  tlie  law  does  not  authorize  the  jury  to  render  upon 
the  evidence  presented  to  them.  The  phrase  refers  to  the  act  of  the  jury  in 
drawing  from  the  evidence  a  conclusion  which  is  not  justified  by  it,  and  for 
that  reason  may  be  said  to  be  contrary  to  the  law.  It  docs  not  refer  to  any 
act  of  the  court  in  piving  to  the  jury  directions  upon  which  their  verdict  is 
to  be  based,  for,  although  such  verdict  may  be  contrary  to  the  law  in  the 
sense  that  it  is  not  authorized  by  the  law,  yet,  it  is  not  an  error  for  which 
the  jury  are  responsible,  but  it  is  an  error  for  which  the  court  is  responsible, 
but  to  be  pointed  out  by  an  exception."  Swartont  v.  Ii'{lliiigha7n,  31  Abb.  N. 
Cas.  66,  6  Misc.  179,  26  N.  Y.  S.  769  (1893)  ;  Bryant  v.  Comm.  Ins.  Co.,  30 
Mass.  543  (1833)  ;  Farrant  V.  Ohninm,  3  B.  &  Aid.  692  (1820)  ;  Gregory  v. 
Tuffs,  2  Dowl.  P.  C.  711  (1834)  ;  Wcbh  v.  Du.^ar.  3  Binn^JJ^aJ-320  (1811)  ; 
State  V.  Layton,  3  Harr.  (Del.)  469  (1842)  ;  Doe  v.  McDonald,  2  U.  C.  Q.  B. 
267  (184^)  ;  Blake  v.  Shnzv,  10  U.  C.  Q.  B.  180  (18^2)  ;  Hoffman  v.  Bosch, 
iS  Kev.360,4  Pac.703  (1884)  :  IVilson  v.  IVhiltakcr.  <;  Phik.  (Pa.)  358  (1864)  ; 
]  phr  V.  Brnrlheck,  102  Pa.  St.  e^^^  ax  Atl.  1006,  73  Am.  St.  828  (1899)  ;  Irwin 
V.  Thompson,  27  Kans.  643  (i!^2);'  Perdue  v.  Bailey,  53  Ga.  333  (1874); 
Merrill  v.  Bassctt,  cjj  Maine  501,  54  Atl.  1102  (1903)  ;  Cary  Mfg.  Co.  v.  Ma- 
lone,  131  App.  Div.  287,  115  N.  Y.  S.  632  (1909);  Massillon  Sign  &■  Poster 
Co.  v.  Buffalo  Lick  Springs  Co.,  81  S.  Car.  114,  61  S.  E.  1098  (1908)  ;  IVilson 
V.  Tnttlc,  6  Ga.  App.  83,  64  S.  E.  290  (1909)  ;  Frits  v.  Sayre,  77  N.  J.  L. 
236,  72  Atl.  425  (1909)  ;  Morgan  v.  Los  Angeles  Pac.  Co.,  13  Cal.  App.  12, 
108  Pac.  735  (1910)  ;  Pugh  v.  Bluff  City  Excursion  Co..  177  Fed.  399  (1910) ; 
Buck  v.  Buck,  122  Minn.  463,  142  N.  W.  729  (1913)  ;  Smyth  v.  Tennison, 
24  Cal.  App.  519,  141  Pac.  1059  (1914)- 


SAVERY   V.    BUSICK  485 

on  said  note,  and  that  the  true  balance  due  was  $384.50,  being 
seventy- five  dollars  more  than  the  amount  for  v^hich  the  judgment 
was  confessed.  This  last  named  sum  plaintiff  alleges  that  the  de- 
fendant afterwards  made  a  parol  promise  to  pay.  Failing  to  do  so,  a 
suit  was  brought  upon  said  promise  to  recover  the  seventy-five  dol- 
lars before  a  magistrate.  A  trial  being  had,  a  judgment  was  ren- 
dered in  favor  of  plaintiff  for  the  amount  of  his  claim.  The  cause 
was  taken  by  appeal  to  the  district  court,  and  on  a  second  trial  there, 
the  plaintiff  claimed  to  have  shown  the  mistake  of  seventy-five  dol- 
lars in  the  confession  of  the  judgment  aforesaid,  and  the  defend- 
ant's promise  to  pay  the  same,  and  asked  the  court  to  say  to  the 
jury  that  upon  this  state  of  facts  the  plaintiff  was  entitled  to  re- 
cover, that  a  moral  consideration  is  sufficient  to  support  a  promise 
in  cases  where  there  was  originally  a  sufficient  valuable  considera- 
tion upon  which  action  could  have  been  sustained,  notwithstanding 
some  positive  rule  of  law  might  exempt  the  party  from  liability. 

The  court  refused  such  instruction,  and  at  the  instance  of  the 
defendant  told  the  jury  in  substance  that  a  mistake  in  the  confes- 
sion of  the  judgment  spoken  of  was  no  sufficient  consideration  in 
law  to  support  a  promise  to  pay  the  amount  of  the  mistake;  that 
such  mistake  could  only  be  rectified  by  appeal  to  the  Supreme  Court, 
or  motion  to  the  court  rendering  the  judgment,  or  by  proceeding  in 
equity;  and  that  if  the  jury  should  find  from  the  evidence  that  a 
judgment  had  been  rendered  in  the  district  court  upon  a  note  which 
constituted  any  part  of  the  claim  or  promise  sued  upon,  they  should 
find  for  the  defendant. 

The  jury  in  their  retirement  gave  a  verdict  for  plaintiff  directly 
against  the  instructions  of  the  court,  which,  upon  motion,  was  set 
aside,  and  a  new  trial  granted.  From*  this  ruling  of  the  court  the 
appeal  comes. 

_  Lowe,  C.  J. :  Whatever  may  be  our  view  of  the  law  of  this  case, 
it  is  impossible  for  us  to  express  it,  or  consider  the  questions  pre- 
sented, without  going  behind  the  action  of  the  jury  in  trampling 
upon  the  authority  of  the  court,  and  thereby  giving  some  counte- 
nance to  their  assumption.  This  we  are  unwilling  to  do  even  by  the 
slightest  implication. 

It  is  no  more  competent  for  the  jury  to  usurp  the  powers  of  the 
court,  than  it  is  for  the  court  to  interfere  with  their  province  in  the 
ascertainment  of  facts.  And  when  the  jury,  in  this  case,  arrogated 
to  themselves  the  right  to  determine  the  law  in  direct  opposition  to 
the  instruotions  given  them  by  the  court,  they  were  guilty  of  a 
flagrant  abuse  of  their  duties  and  obligations ;  and  we  will  not  review 
this  case  until  it  is  tried  upon  the  law  as  it  shall  be  expounded  by 
the  court  and  not  by  the  jury. 

Afifirmed.21 


"Accord:  Flemmina  v.  Marine  Ins.  Co.,  4  Whart.  (Pa.)  59  (1839)  ; 
Wood  V.  Cox,  17  C.  B.  280  (1855);  Kogcrs  v.  Mtirray,  '3~^osw.  '(N.  Y.) 
357  (1858)  ;  Biinten  v.  Orient  In.<;.  Co.,  4  Bosw.  (N.  Y.)  254  (1859)  ;  Moffatt 
V.  Thompson,  17  N.  B.  516  (1877),  semhlc ;  Paul  v.  Casselberry.  12  Phila. 
(Pa.)  313  (1878)  ;  Dent  v.  Bryce,  16  S.  Car.  1  (1881)  ;  Crane  v.  Chicago  & 
N.  W.  R.  Co.,  74  Iowa  330,  Z7  N.  W.  397,  7  Am.  St.  479  (1887) ;  Standiford 


( 


(b)  Judgment  Non  Obstante  Verdicto.^' 

W.  II.  S HIVES  V.  ICNO  COTTON  MILLS. 

Supreme  Court  of  North  Carolina,  1909. 

151  A'.  Car.  290. 


Civil  action  for  personal  injuries.  The  plaintiff,  a  "boss  dyer," 
fell  through  a  hole  in  the  dyeing  department  of  defendant's  mill, 
made  by  the  removal  of  two  planks  by  workmen  who  were  making 
repairs.  On  the  trial  the  defendant  moved  for  a  nonsuit  on  the 
ground  ( i )  of  want  of  knowledge  of  the  defect  on  the  part  of  the 
defendant,  (2)  that  the  injury  was  caused  by  a  fellow  servant  and 
(3)  that  the  plaintiff  was  gvtilty  of  contributory  negligence.  The 
motion  was  denied,  but  the  trial  judge  stated  that  he  was  doubtful 
as  to  the  plaintiff's  right  to  recover,  upon  the  whole  evidence,  and 
would  reserve  that  question  to  be  passed  upon  after  verdict.  The 
jury  having  found  the  issues  submitted  to  them  in  favor  of  the 
plaintiff  and  assessed  his  damages  at  $3,000,  the  court  rendered 
judgment,  "being  of  opinion,  upon  the  whole  record,  that  plaintiff 
is  not  entitled  to  recover,  non  obstante  veredicto,  the  action  is  dis- 
missed." Whereupon  the  plaintiff  appealed. ^^ 

Browx,  J. :  In  entering  a  judgment  non  obstante  veredicto  for 
the  defendant  we  think  the  learned  judge  below  misconceived  the 
usages  and  practice  of  the  courts  in  respect  to  such  judgments.  At 
common  law  they  were  never  rendered  for  a  defendant. 

The  usual  definition  of  a  judgment  non  obstante  is  "a  judgment 
entered  by  order  of  the  court  for  the  plaintiff  in  an  action  at  law, 
notwithstanding  a  verdict  for  the  defendant."  2  Tidd.  Pr.  922 ;  Rap. 
&  L.  Law  Diet. ;  Black  Law  Diet. 


V.  Green,  54  Nebr.  10,  74  N.  W.  263  (1898)  ;  Murray  v.  Heinze,  17  Mont. 
353,  42  Pac.  1057,  43  Pac.  714  (1895)  ;  McAllister  v.  Rocky  Fork  C.  Co.,  31 
Mont.  359,  78  Pac.  595  (1904)  ;  Fleming  v.  L.  &  N.  R.  R.  Co.,  148  Ala.  527, 
41  So.  683  (1906)  ;  Kaplan  v.  Shapiro,  53  Misc.  606,  103  N.  Y.  S.  922 
(1907);  Lynch  v.  Snead  Archiiectiiral  Works,  132  Ky.  241,  116  S.  W.  693 
(1909)  ;  Webber  v.  Jonesville,  94  S.  Car.  189,  y7  S.  E.  857  (1913)  ;  Wallace 
V.  ll'eavcr,  47  Mont.  437,  133  Pac.  1099  (1913).  Contra:  Van  Vacterv.  Brews- 
ter, 9  Miss.  400  (1843)  ;  t^^<^k  v.  Lend,  2  Ga.  I,  46  Am.  Dec.  368  (1847)  ; 
Cochrane  v.  Winbiirn,  13  Tex.  143  (1S54)  ;  Wellborn  v.  Weaver,  17  Ga.  267, 
63  Am.  Dec.  235  (1855);  Todd  v.  Liverpool  Ins.  Co.,  18  U.  C.  C.  P.  192 
(1868);  Pittsburgh  C.  C.  R.  Co.  v.  hrs,  12  Ind.  App.  602,  40  N.  E.  923 
(1895);  Watts  V.  iX  or  folk  &  W.  R.  Co.,  39  W.  Va.  196,  19  S.  E.  521,  23 
L.  R.  A.  674,  45  Am.  St.  894  (1894)  ;  Galligan  v.  Woonsockct  S.  R.  Co.,  27 
R.  I.  363,  62  Atl.  376  (1905)  ;  St.  Louis  &  M.  R.  Co.  v.  Dooley,  77  Ark. 
561,  92  S.  W.  7S9  (1906)  semblc;  Luken  v.  Lakeshore  &  M.  R.  Co.,  248  111. 
337.  94  N.  E.  175  (1911)  ;  Touslcy  v.  Pacific  E.  Co.,  166  Cal.  457,  137  Pac.  31 
(1913). 

"See  the  cases  and  notes  in  Ames's  Cases  on  Pleading  (ist  cd.)  275; 
(2d  ed.)  264;  I  Chitty  on  Plcadinc:  (16  Am.  ed.)  688;  Stephen  on  Pleading 
(9th  Am.  ed.)  97;  Gould  on  Pleading  (Will's  ed.)  171 ;  14  Am.  Law  Rev.  494. 

^The  statement  of  facts  is  derived,  in  part,  from  the  opinion  of  the  court, 
Ik  part  only  of  which  is  printed. 


SHIVES   V.    ENO    COTTON    MILLS  487 

At  common  law  a  judgment  non  obstante  veredicto  could  be 
entered  only  when  the  plea  confessed  the  cause  of  action  and  set 
matters  in  avoidance  which  were  insufficient,  although  found  true, 
to  constitute  either  a  defense  or  a  bar  to  the  action.  In  such  case 
the  plaintiff  was  entitled  to  a  judgment  in  his  favor,  notwithstanding 
a  verdict  for  the  defendant.  Cotton  Mills  v.  Abernathy,  115  N.  Car. 
403;  Walker  V.  Scott,  106  N.  Car.  57;  Riddle  v.  Germanton,  117  N. 
Car.  387.2* 

The  practice  was  adopted,  says  Judge  Pearson,  to  discourage 
sham  pleas  by  the  defendant.  Moye  v.  Petway,  76  N.  Car.  329. 

Hence  it  follows  that  at  common  law  a  judgment  non  obstante 
could  only  be  granted  upon  motion  of  the  plaintiff — never  for  a  de- 
fendant— and  that  its  use  was  consequently  very  restricted. 

This  rule,  however,  has  been  relaxed  in  many  jurisdictions,  espe- 
cially Vv'here  counterclaims  are  pleaded,  and  where  the  code  system 
prevails,  and  it  is  held  that  such  judgment  may  be  rendered  on  the 
pleadings  for  either  partv  entitled  to  it,  irrespective  of  the  verdict. 
II  Encyc.  PI.  &  Pr.  914.25 

In  no  case,  however,  can  such  judgment  be  rendered  for  any 
party,  except  when  the  pleadings  entitle  the  party  against  whom 
the  verdict  was  rendered  to  a  judgment.  Grant  v.  Insurance  Co.,  76 
Ga.  575;  V/illoughby  v.  Willoughby,  51  E.  C.  L.  y22',  Gregory  v. 
Brunswick,  54  E.  C.  L.  481 ;  McFerran  v.  McFerran,  69  Ind.  29;  11 
Encyc.  PI.  &  Pr.  914,  and  cases  cited.^® 


^*2  Tidd's  Pr.  (9th  ed.)  920 ;  Broadbent  v.  Wilks,  —  Wiles  360,  364  (1742)  ; 
Biirdick  V.  Green,  18  Johns.  (N.  Y.)  14  (1820)  ;  Dewey  v.  Humphrey,  5  Pick. 
(Mass.)  187  (1827)  ;  Smith  v.  Smith,  4  Wend.  (N.  Y.)  468  (1830)  ;  Roberts 
V.  Dame,  ll  N.  H.  226  (1840);  Shreve  v.  Whittlesey,  7  Mo.  473  (1842); 
Bellows  v.  Shannon,  2  Hill  (N.  Y.)  86  (1841)  ;  Berry  v.  Borden,  7  Blackf. 
(Ind.)  384  (1845)  ;  Mallory  v.  Lamphear,  8  How.  Pr.  (N.  Y.)  491  (1853)  ; 
IVillia^ns  v.  Anderson,  9  Minn.  50  (1864)  ;  Lough  v.  Thornton,  17  Minn. 
253  (1871);  Hyer  v.  Vaughn,  18  Fla.  647  (1882);  Burnham  v.  New  York, 
P.  &  B.  R.  Co.,  17  R.  I.  544,  23  Atl.  638  (1891)  ;  TilUnghast  v.  McLeod,  17 
R.  I.  208,  21  Atl.  345  (1891)  ;  German  Ins.  Co.  v.  Frederick,  58  Fed.  144 
(1893);  Virgin  Cotton  Mills  v.  Abernathy,  115  N.  Car.  402,  20  S.  E.  522 
(1894)  ;  Stoddard  v.  Cambridge  Mut.  Fire  Ins.  Co.,  75  Vt.  253  (1903)  ;  Fish- 
hurne  v.  Robinson,  49  Wash.  271,  95  Pac.  80  (1908)  ;  Shearer  v.  Guardian 
Trust  Co.,  136  AIo.  App.  229,  116  S.  W.  456  (1908)  ;  Ivanhoe  Furnace  Corp. 
V.  Crozvder,  no  Va.  387,  66  S.  E.  63  (1909)  ;  Dalenz  v.  Fitssimmons,  78  N.  J. 
L.  618,  75  Atl.  924  (1910)  ;  Audit  Co.  v.  Taylor,  152  N.  Car.  272,  67  S.  E. 
582  (1910);  Strong  v.  Gunning,  153  111.  App.  182  (1910). 

■^Brown  v.  Searle,  104  Ind.  218,  3  N.  E.  871  (1885)  ;  Carl  v.  Granger  Coal 
Co.,  69  Iowa  519,  29  N.  W.  437  (1886)  ;  Stewart  v.  American  Exch.  Nat.  Bank, 
54  Nebr.  461,  74  N.  W.  865  (1898)  ;  Piano  M.  Co.  v.  Richards,  86  Minn.  94 
(1902)  ;  Plimkett  v.  Detroit  E.  R.  Co.,  140  Mich.  299,  103  N.  W.  620  (1905)  ; 
Whitaker  v.  Crowder  S.  Bank,  26  Okla.  786,  no  Pac.  776  (1910). 

'"Since  judgment  non  obstante  veredicto  is  entered  where  it  appears  from 
the  record  that  the  verdict  can  not  be  supported,  the  evidence  can  not  be 
looked  to  in  support  of  such  a  motion.  Pittsburgh  R.  Co.  v.  Martin,  82  Ind. 
476  (1882)  ;  Slivitski  V.  Wien,  93  Wis.  460,  67  N.  W.  730  (1896)  ;  Lezvis  v. 
Foard,  112  N.  Car.  402,  17  S.  E.  9  (1893)  ;  Manning  v.  Orleans,  42  Nebr. 
712,  60  N.  W.  953  (1894)  ;  Plunkett  v.  Detroit  E.  R.  Co.,  140  Mich.  299,  103 
N.  W.  620  (1905)  ;  Baxter  v.  Irvin,  158  N.  Car.  277,  7i  S.  E.  882  (1912)  ; 
Streitweiser  v.  Lightbourn,  87  Conn.  527,  89  Atl.  186  (1913).  But  the  practice 
in  some  jurisdictions  permits  such  a  judgment  where  all  the  evidence  attain- 
able has  been  produced  and  is  conclusive,  as  a  matter  of  law,  on  the  merits 


4SS  TKIAL 

It  Is  manifest  that  tliis  is  not  a  case  where,  upon  the  pleadings, 
jiulsj^ncnt  can  bo  appropriately  rendered  for  the  defendant,  not- 
withstandini::  the  verdict. 

'I'hc  cause  is  remanded  with  directions  to  enter  judgment  upon 
tlie  verdict. 

Reversed. 

sv.-^i^  /^..>;/-  ^-'^^^  ^Arrest  of  Judgment." 

NOYES,  FRENCH  &  I^RTCKETT  1:  1-:DWARD  J.  PARKER. 
Supreme  Court  of  V^ekmont,  1892. 

64  r/.  379- 

Assumpsit  to  recover  $285,  the  amount  of  an  overdraft  paid  by 
the  plaintilis  upon  the  defendant's  draft  for  $1,900,  the  price  of 
two  hundred  tubs  of  butter.  The  plaintiffs  claimed  that  the  defend- 
ant never  delivered  tliirty  of  said  tubs.  On  the  trial,  the  court 
charged  that  to  entitle  the  plaintiff  to  recover,  the  weight  of  the  evi- 
dence must  support  their  claim  that  the  butter  was  not  delivered. 
\'erdict  and  judgment  for  plaintiffs.  The  defendant  excepts.-^ 

Thompson,  J. :  After  verdict  the  defendant  filed  a  motion  in 
arrest  of  judgment,  which  was  overruled,  and  to  this  ruling  he  ex- 
cepted. At  common  law,  "judgment  can  never  be  arrested  but  for 
that  which  appears  upon  the  record  itself."  Pechy  v.  Harrison,  i 
Ld.  Raym.  232,  i  Salk.  yy\  Sutton  v.  Bishop,  4  Burr.  2284,  2287. 
"Such  a  motion  can  only  be  made  'on  account  of  some  intrinsic  de- 
fect apparent  on  the  face  of  the  record,  which  would  render  the 
judgment  in  the  case  erroneous.'"  State  v.  Carver,  49  Maine  588 
yy  Am.  Dec.  275  ;  State  v.  Cr eight,  i  Brev.  (S.  Car.)  169,  2  Am.  Dec. 
656;  State  V.  John,  8  Ired.  (N.  Car.)  330,  49  Am.  Dec.  396;  i  Bouv. 
Law  Diet.  (14th  ed.)  Article,  Arrest  of  Judgment;  i  Rap.  &  Law. 
Law  Diet.  Article,  Arrest  of  Judgment  2 ;  i  Blacks.  Comm,  (Cooley's 
ed.)  Book  III,  star  p.  394.-^  In  Walker  v.  Sargeanf,  11  Vt.  329,  the 

in  favor  of  the  partv  against  whom  the  verdict  is  rendered.  Baxter  v.  Cove- 
nant M.  L.  A.,  81  Minn.  I,  83  N.  W.  459  (1900);  Cruikshank  v.  St.  Paul 
F.  I.  Co.,  75  Minn.  266,  77  N.  W.  958  (1899)  ;  Richmire  v.  Elevator  Co.,  11 
iV.  Dak.  453,  92  N.  W.  819  (1902)  ;  Nelson  v.  Grondahl,  12  N.  Dak.  130,  96 
N.  \V.  299  (1903)  ;  Dalmas  v.  Kcmble,  21.S  Ja.  aid,  64  Atl.  559  (1906)  ;  Ben- 
nett V.  Great  K.  R.  Co.,  115  Minn.  128,  131  N.  W.  1066  (1911)  iMjlfbjv.  Yorlc 
Haven^'.  P-  Cc.^i'^  Pa.  107.  81  Atl.  908  (1911)  ;  Mixon  v.  Wallis^(Tex. 


^IvTApp.),  161  S.  \Y.  907  (1913)  ;  N.  Y.  Code  Civ.  Proc,  §  1185.  For  the 
Federal  procedure  see  Young  v.  Central  R.  of  N.  J.,  232  U.  S.  602,  58  L.  ed. 
750  (1914),  supra,  and  notes. 

-'Gould  on  Pleading  (Wills'  ed.)  151;  Stephen  on  Pleading  (9  Am. 
ed.)  96;  III  Blackstone's  Commentaries,  393;  Archbold's  Pr.  (8th  ed.), 
1353;  Ames'  Cases  on  Pleading  (ist  ed.),  265;  (2d.  ed.),  264  and  notes;  23 
Cyc.  824 ;  5  Enc.  L.  &  P.  501 ;  2  Standard  Proc.  979. 

"Only  so  much  of  the  case  as  relates  to  the  motion  in  arrest  of  judg- 
ment is  printed. 

''Lee  V.  Brozcn,  5  Wend.  (N.  Y.)  221  (1830)  ;  IVentworth  v.  Wentworth,  2 
Minn.  277,  72  Am.  Dec.  97  (1858)  ;  AronsonjL^Sl£E^ki^^^--^-..Ei^S°'  7^ 


NOYES   V.    PARKER  489 

court  say :  "A  motion  in  arrest  can  be  sustained  only  for  matter  ap- 
parent of  record,  and  such  things  as  take  place  on  trial  must  be  placed 
on  record  by  a  bill  of  exceptions,  allowed  by  the  court,  before  notice 
can  be  taken  thereof  for  reversing  a  judgment,  for  they  would  never 
be  proper  for  a  motion  in  arrest."  In  Blacks.  Comm.,  above  cited,  it 
is  said:  "And  this  is  an  invariable  rule  with  regard  to  arrests  of 
judgments  upon  matter  of  law,  'that  whatever  is  alleged  in  arrest  of 
judgment  must  be  such  matter  as  would  upon  demurrer  have  been 
sufficient  to  overturn  the  action  or  plea.'  *  *  *  gyi-  ^j-^g  j-ule 
will  not  hold  e  converso,  that  everything  that  may  be  alleged  as  cause 
of  demurrer  will  be  good  in  arrest  of  judgment,"  for  certain  omis- 
sions and  errors  are  aided  by  a  verdict,  i  Rap.  &  Lav/.  Law  Diet. 
supra.  The  rule  as  to  the  defects  that  shall  be  cured  by  verdict  is 
thus  stated  in  note  (i)  to  Stennel  v.  Hogg,  i  Saund.  228,  (6th  ed. 
with  notes  by  John  Williams,  Patterson  and  Edward  Vaughn  AVil- 
liams)  :  "Where  there  is  any  defect,  imperfection,  or  omission  in 
any  pleading  whether  in  substance  or  form,  which  would  have  been 
a  fatal  objection  upon  demurrer;  yet  if  the  issue  joined  be  such  as 
necessarily  required  on  the  trial  proof  of  the  facts  so  defectively  or 
imperfectly  stated  or  omitted,  and  without  which  it  is  not  to  be  pre- 
sumed that  either  the  judge  would  direct  the  jury  to  give,  or  the  jury 
would  have  given  the  verdict,  such  defect,  imperfection,  or  omission, 
is  cured  by  the  verdict  by  the  common  law ;  or,  in  the  phrase  often 
used  upon  the  occasion,  such  defect  is  not  any  jeofail  after  verdict."^'' 
Gould's  PI.  chapter  10,  section  13;  i  Chit.  PI.  (14th  Am.  ed.)  673 
and  note  ( i ) .  "But  where  no  cause  of  action  is  stated,  the  omission  is 
not  cured  by  verdict.  For  as  no  right  of  recovery  was  necessary  to  be 
proved,  or  could  have  been  legally  proved  under  such  a  declaration ; 
there  can  be  no  ground  for  presuming  that  it  was  proved  at  the 

Pa^St.  68  (1871)  ;  Qmckv^  Miller,  103  Pa.  St^_(i883)  ;  Bond  v.  Diisiin, 
112  U:  S.  604;  28  L.  ed.  8357  5~Su'p.  Cnge  (1884;  •,1Jray  v.  Commomvealth, 
92  Va.  772,  22  S.  E.  858  (1895)  ;  Hughes  v.  Frum,  41  W.  Va.  44=;,  23  S.  E. 
604  (1895);  Burrows  v.  Niblack,  84  Fed.  in  (1898);  lVard,v_^Lgkcside_R. 
Co.,  20  Pa.  C.  C^494  (1898)  ;  Washington  v.  Calhoun,' 103  Ga.  675  (1898); 
Vanderhorst  Brew.  Co.  v.  Amrhine,  98  Md.  406,  56  Atl.  833  (1904)  ;  Danley 
V.  Hibbard,  222  111.  88,  78  N.  E.  39  (1906)  ;  Stid  v.  Missouri  Par.  R.  Co.,  211 
Mo.  411,  109  S.  W.  663  (1907)  ;  Hubbard  v.  Rutland  R.  Co.,  80  Vt.  462,  68  Atl. 
647  (1908)  ;  Pelican  Assur.  Co.  v.  American  Feed,  &c.,  Co.,  122  Tenn.  652,  126 
S.  W.  1085  (1909). 

^°Roe  V.  Gatehouse,  2  Salk.  663  (1695)  J  Hall  v.  Douglas,  Barnes,  452 
(1744)  ;  Daley  v.  Atwood,  7  Cow.  (N.  Y.)  483  (1827)  ;  Morey  v.  Homan,  10 
Vt.  565  (1838)  ;  Bequette  v.  Losselle,  5  Blackf.  (Ind.)  443  (1840)  ;  Higgins  v. 
Bogan,  4  Harr.  (Del.)  330  (1845)  ;  Sezvalls  Falls  Bridge  Co.  v.  Fisk,  23  N.  H. 
171  (1851);  Brown  v.  Harmon,  21  Barb.  (N.  Y.)  508  (1856);  Boilridge  v. 
'■  H erst.  6 Vhih..  (Pa.)  391  (1867)  ;  Harley  v.  Lebanon  Mut.  Ins.  Co.,  120  Pa^St. 
182,  13  Atl.  833  (1888)  ;  Johnson  v.  J ohnsoti,  30~Co^V402,  70  Pac.  692  (1902)  ; 
Bowen  v.  White,  26  R.  I.  68,  58  Atl.  252  (1904)  ;  Enright  v.  Gibson,  119  111. 
App.  411  (1905)  ;  Danley  v.  Hibbard,  222  111.  88,  78  N.  E.  39  (1906)  ;  Pitts- 
btirgh  C.  C.  &  S.  R.  Co.  v.  Chicago,  144  111.  App.  293  (1908)  ;  F  is  rip  v  fCis^ 
singer,  53  Pa  Super.  Ct  453  {im2l ;  Kansas  City  Masonic  Temple  Co.  v. 
Young,  179  Mo.  App.  278,  166  S.  VV.  838  (1914)  ;  Rudd  v.  Buxton,  41  App. 
Dist.  C.  353  (1914).  In  Massachusetts,  by  statute,  a  judgment  may  not  be 
arrested  for  a  cause  existing  before  verdict  unless  such  cause  affects  the 
jurisdiction  of  the  court.  McManus  v.  Thing,  208  Mass.  55,  94  N.  E.  293 
(1911). 


490  TRIAL 

trial." '^  Gould's  Pi,  chapter  lo,  section  13.  The  defendant  has  not 
pointed  out  any  "intrinsic  defect"  apparent  on  the  face  of  the  record, 
whicli  under  the  rules  of  law  as  above  stated,  would  render  tlie  judg- 
ment of  the  court  below  erroneous,  and  therefore  this  exception  can 
not  avail  him. 

luds^ment  affirmed.^- 


r 


^^•ILLIAM  ICLLIS,  ADMINISTRATOR  OF  RACHEL 
PRITCHARD,  V.  MOSES  CULVER. 

Superior  Court  of  Delaware,  1836. 
2  Harr.  (Del.)  129" 

Black,  J. :  This  is  an  action  of  replevin  for  taking  and  detain- 
ing a  bed  and  furniture,  a  dining  table,  one  chest,  fifty  bushels  of 
corn,  six  hogs,  four  sheep,  one  cow,  one  horse  colt,  and  one-third  of 
four  and  a  half  stacks  of  fodder,  of  the  goods  and  chattels  of  the 


*^Buxet7din  v.  Sharp,  2  Salk.  662  (1695)  ;  Copleston  v.  Piper,  i  Ld.  Raym. 
191  (1697)  ;  Barriere  v.  Nairac.  2  Pall.  (Pa.)  249,  1  L.  ed.  368  (1796)  ;  MOX: 
field  V.  /r/ti(£tJL^o^vqe  (Fa.)  241  (1811)  ;  Jackson  v.  Peskcd,  l  M.  &  S.  234 
XT^T^\^wyer  v.  Wliittier,  2  N.  H.  315  (1820)  ;  Smith  v.  Curry,  16  111.  147 
(1S54)  ;  Heddcns  v.  Younglove,  46  Ind.  212  (1874);  Richards  v.  Travellers' 
Ins.  Co.,  80  Cal.  505,  22  Pac.  939  (1889)  ;  Pierson  v.  School  Dist.,  106  Iowa 
693  (1808)  ;  Dcanv.  Cass,  73  Vt.  314,  50  Atl.  1085  (1901)  ;  Southern  R.  Co.  v. 
Maxzvell,  113  Tenn.  464,  82  S.  W.  1137  (1904)  ;  McKulty  Y._0.'Donncli.27 
Pa.  Super  Ct.  0.^  (iqo=,)  •  Hennincj  v.  Sawpsell,  236  111.  375  86  N.  E.  274 
(1908)  ;  Metropolitan  S.  R.  Co.  v.  Adams  Express  Co.,  145  Mo.  App.  371, 

130  S.  W.  loi  (1910)  ;  Hubbard  v.  Montross  Metal  Shingle  Co.,  79  N.  J.  L. 
208,  74  Atl.  254  (1909)  ;  Warner  V.  Baker,  36  App.  (D.  C.)  493  (1911)  ;  Grover 
Irrigation  &  Laud  Co.  v.  Lovella  Ditch  Reservoir  &  Irr.  Co.,  21  Wyo.  204, 

131  Pac.  43  (1913)-  ,         ,  .  ^   .  ^ 
"The  authorities  in  the  book  are  very  numerous  on  the  subject  of  defects 

being  aided  after  verdict.  It  is  quite  unnecessary  to  detail  a  great  nvimber  of 
the  older  cases  on  the  subject,  the  great  majority  of  them  haying  arisen 
upon  matters  which  would  now  be  considered  mere  form.  And  it  would  be 
a  task  of  some  difficulty  to  reconcile  all  the  decisions  upon  the  subject, 
partly  because  the  courts  have  in  later  times  become  much  more  liberal 
than  they  were  formerly  in  discriminating  between  form  and  substance, 
and  partially  because  the  distinction  between  the  doctrine  of  intendment  at 
common  law  and  the  statute  of  jeofails,  is  very  often  but  little  attended  to 
in  many  of  the  older  reports  and  treatises."  i  Chitty  on  Pleading  (16 
Am.  ed.)  707.  By  intendment  after  verdict,  is  meant  that  the  court  will  pre- 
sume that  the  particular  tiling  which  appears  to  be  defectively  stated,  or 
omitted,  was  duly  proved  at  the  trial.  The  statutes  of  jeofails  on  the  other 
hand  expressly  provide  that  judgment  after  verdict  shall  not  be  stayed  or 
reversed  for  specified  errors,  chiefly  of  form,  that  might  have  been  objected 
to  by  demurrer. 

"Judgment  will  be  arrested  only  for  errors  which  appear  on  the  face  ot 
the  record.  Carpenter  v.  Child,  i  Root  (Conn.)  220  (1790)  ;  SJmner  v.  RoJ?e- 
jny^  /\  Ypatps  (Pa/)  37=;  _( 1807)  :  Walker  v.  Sargcant,  11  Vt.  327  (1839); 
Lovcll  V.  Sabin,  15  N.  H.  29  (1844)  ;  Howard  v.  State,  6  Ind.  444  (1855)  ; 
Kirk  V.  Littcrst,  71  Iowa  71,  2,2  N.  W.  106  (1887)  :  Schubkaacl  v.  Dierstein. 
131  Pa.  St.  46.  18  AtL  1059,  6.  L.  R.  A.  481  (1889)  ;  Harris  v.  State,  53  Fla.  37, 
43  So.  311  (1907)  ;  Kendall  v.  Kroeger,  &c.,  Grocery  Co.,  173  111.  App.  504 
(1912)  ;  Boville  v.  Dalton  P.  Mills,  86  Vt.  305,  85  Atl.  623  (1912)  ;  Dempsey 
V.  Poore  (\V.  Va.),  83  S.  E.  300  (1914)- 

"A  part  only  of  the  opinion  is  printed. 


ELLIS  V.    CULVER  491 

plaintiff.  The  defendant  pleaded  non  cepit  and  property;  and  the 
jury  have  found  for  the  plaintiff,  and  assesses  his  damages  to  $91.50. 

A  motion  has  been  made  to  arrest  the  judgment,  on  the  ground 
that  one  tenant  in  common  can  not  maintain  replevin  for  his  undi- 
vided share  of  a  chattel,  and  that  the  writ  and  declaration  show  that 
as  to  a  part  of  the  property  in  controversy  (the  fodder)  the  plain- 
tiff make  claim  of  only  one-third  part. 

In  our  judgment  a  joint  tenant  or  tenant  in  common  can  not 
maintain  replevin  for  his  share  of  an  undivided  chattel  against  a 
co-tenant,  nor,  as  we  conceive,  against  a  third  person  who  may  have 
possession  of  it.  The  right  to  the  possession  is  an  entire  right,  and 
all  owners  must  unite  in  the  action.  *  *  *  Where,  therefore, 
the  record  shows  another  person  to  be  part  owner  of  the  chattel  for 
which  replevin  is  brought,  it  may  be  taken  advantage  of  on  a  motion 
in  arrest  of  judgment. 

With  these  impressions  as  to  the  law,  the  court  would  have  no 
difficulty  as  to  the  decision  to  be  made,  if  this  chattel  held  in  common 
were  the  only  one  in  controversy  in  this  action.  But  the  WTit  and 
declaration  embrace  various  other  articles,  and  this  is  the  only  one 
which,  from  tlie  record  of  proof,  appears  to  have  been  held  in  com- 
mon— the  plaintiff  claims  to  be  the  sole  owner  of  all  the  others.  In 
such  a  case,  ought  the  court  to  arrest  the  judgment? 

The  declaration  contains  but  a  single  count.  It  may  be  good  for 
part  and  bad  for  the  residue.  Gould,  195 ;  5  Bacon,  349.  Where  a 
verdict  is  given  in  an  action  of  slander,  in  which  there  is  only  one 
count  in  the  narr.,  and  where  some  of  the  words  are  actionable  and 
some  are  not,  the  court  wuU  intend  that  damages  were  given  for  the 
actionable  words  only,  and  render  judgment  on  the  verdict  Brooke 
v.  Clarke,  Croke  Eliz.  328;  Archbold's  PI.  196;  2  Saund.  171,  (a)  ; 
I  Chitty  384.  If  several  considerations  be  stated  in  one  assumpsit, 
and  one  is  void,  and  the  others  good,  and  damages  be  given  ratione 
praermssoriim,  as  in  Roe  v.  Gatehouse,  i  Lord  Raym.  146;  or,  if 
one  of  several  charges  be  insufficiently  stated,  Fontleroy  v.  Aylmer, 
I  Lord  Raym.  239 ;  or,  if  part  of  the  promise  set  out  be  a  nudum  pac- 
tum, Phette place  v.  Steer e,  2  Johns.  (N.  Y.)  443;  or,  if  a  count  in 
a  narr.,  contain  a  sufficient  cause  of  action  connected  with  matter 
not  actionable,  Borden  v.  Fitch,  15  Johns.  (N.  Y.)  121 ;  or,  if  to  a 
plea  in  bar  to  a  part  of  the  claim,  and  not  guilty  be  pleaded  as  to 
the  residue,  the  plea  in  bar  be  demurred  to  and  sustained,  and  a  ver- 
dict of  "guilty  in  manner  and  form  as  plaintiff  in  his  narr.  had  al- 
leged," be  rendered,  as  in  Eastman  v.  Chapman,  1  Day  (Conn.)  30; 
the  court  in  each  of  these  cases  held  that  they  would  intend  that 
damages  were  given  only  for  the  considerations  that  were  good ;  or 
the  matters  that  were  actionable;  or  the  charges  that  were  well 
stated;  and  rendered  judgment  on  the  verdicts.  In  an  action  of  tres- 
pass against  baron  and  feme,  Smalley  v.  Kerfoot,  2  Strange  1094, 
for  entering  house,  taking  goods,  and  converting  them  to  their  use, 
the  court  held  that  as  the  wife  could  not  convert  to  her  own  use,  they 


40J 


TRIAL 


wouKl  iiitcinl  that  damages  wcro  given  only  for  entering  the  house 
and  taking  Uie  goods,  and  not  for  the  conversion. 

In  Ihincroft  v.  Coo,  Croke  James  664,  which  was  an  action  of 
trover  dc  uno  risco,  anghce  a  trunk  full  of  hue  linen,  to  the  value 
of  £20;  and  de  loia  pixidc,  anglice  a  box  full  of  bands,  cuffs  and 
shirts,  to  the  value  of  £  10,  and  of  divers  parcels  of  other  goods,  in 
which  £So  damages  were  given;  the  court  refused  to  arrest  the 
judpnent ;  and  held  that  they  would  intend  that  damages  were  given 
for  the  trunk  only.  In  the  case  of  Steele  v.  The  IVestern  Inland 
Lock  Xaz-igation  'Company,  reported  in  2  Johns.  (N.  Y.)  283,  the 
same  principle  is  recognized. 

Upon  tlie  authority  of  these  cases,  and  the  principles  they  estab- 
lish, we  are  not  inclined  to  arrest  the  judgment  in  this  suit.  The 
court  are  to  decide  this  motion  from  what  appears  on  the  record ; 
from  it,  no  objection  is  presented  to  the  recovery  of  any  part  of  the 
property  claimed  in  the  writ,  excepting  the  fodder ;  from  aught  that 
appears,  this  action  can  be  maintained  by  the  plaintiffs  against  the 
defendant  for  all  the  other  chattels.  It  was  entirely  within  the  po\yer 
of  the  defendant  to  have  withdrawn  from  the  jury  the  consideration 
of  damages  for  the  fodder.  It  is  by  his  own  act,  or  by  his  acquies- 
cence, tliat  damages  have  been  allowed  for  it,  if  they  have  been 
allowed.  He  might  have  demurred,  or  objected  to  the  evidence,  or 
called  on  us  to  instruct  the  jury  not  to  give  damages  for  the  fodder ; 
and  thus  confined  the  jury  to  those  chattels  to  which  there  was  no 
objection  in  law  to  a  recovery  by  the  plaintiff.  As  he  has  not  adopted 
either  of  these  modes,  but  by  his  acquiescence  or  silence,  allowed  the 
jury  to  take  into  consideration  this  chattel  of  no  great  amount,  w^ith 
the  otliers  for  which  his  action  properly  lies,  we  are  not  disposed  to 
put  the  plaintiff  out  of  court  or  award  a  venire  de  novo  if  this  could 
be  done,  but  to  infer  that  damages  were  given  by  tlie  jury  only  for 
those  articles  of  property  enumerated  in  the  declaration,  for  which 
this  action  could  be  brought  by  the  plaintiff,  and  sustained  against 
the  defendant. 

^Motion  to  arrest  judgment  overruled  unanimously,  and  judg- 
ment as  of  the  October  term,  when  the  case  was  argued.^* 


"Accord:  Russell  v.  Come,  i  Salk.  119  (1703)  ;  Doc  v.  Dycball,  8  B.  & 
C  70  (1828)  ;  Ring  v.  Roxhrongh,  2  Tyrw.  468  (1832)  ;  Steele  v.  Navigation 
Co  2  Johns.  (N.  Y.)  283  (1807)  ;  Borden  v.  Fitch,  15  Johns.  (N.  Y.)  121. 
8  Am.  Dec.  225  (1818)  ;  Packard  v.  Slack,  32  Vt.  9  (1859)  ;  Conway  v.  Jeffer- 
son 46  X  H  521  (1866)  ;  otherwise  in  penal  action,  Morse  v.  Eaton,  23  N.  H. 
4i5'(l85i)  ;  Specht  v.  Pennsylvania  R  Co.,  7  Pa.  C.  C.  S4  (1889)  ;  Robbins  v. 
Bossennan,  133  Iowa  318,  no  N.  W.  587  {\907YYKarnnffv:  Ketch,  69  N.  J.  L. 
499  55  Atl.  163  (1903),  overruling  Farwell  v.  Smith,  16  N.  J.  L.  133  (1837)  ; 
Potts  V.  Clarke,  20  N.  J.  L.  536  (1845).  Contra:  Stirling  v.  Garrittc,  18  Md. 
468  (1862)  ;  Peyton  v.  Rose,  41  Mo.  257  (1867)  ;  Flowers  v.  Smith,  214  Mo.  98, 

112  S.  W.  499  (1908).  ,  A       A     .u        u  A 

Where  a  declaration  contains  several  counts,  some  good  and  others  bad, 
the  common  law  rule,  followed  in  a  number  of  states,  is  that  if  the  verdict 
is  general,  judgment  should  be  arrested.  Some  jurisdictions  have  declined 
to  follow  this  rule,  and  in  others  the  same  result  has  been  attained  by 
statute,  so  that  in  the  majority  of  the  states  judgment  will  not  be  arrested 
after  a  general  verdict,  if  there  be  one  good  count  to  which  the  verdict  can  be 
applied.    5  Enc.  L.  &  Pr.  325  I  23  Cyc.  829 ;  Leach  v.  Thomas,  2  M.  &  W.  427 


^^ 


BUTCHER   V.    METTS  493 

BUTCHER  V.  METTS. 

f 

District  Court  of  Philadelphia,^  1836. 
I  Miles  (Pa.)  233. 

In  this  case  a  verdict  was  rendered  for  the  plaintiff,  but  judg- 
ment was  arrested  on  account  of  the  insufficiency  of  the  verdict. ^^ 
The  plaintiff  then  obtained  a  rule  to  show  cause  why  a  venire  facias 
de  novo  should  not  be  awarded,  the  former  trial  having  proved 
fruitless. 

Meredith,  who  had  been  of  counsel  with  the  defendant,  resisted 
the  award  of  a  new  venire,  and  contended  tliat  upon  the  arrest  of 
the  judgment  the  action  was  at  an  end;  that  the  defendant  no  longer 
had  a  day  in  court,  and  that  there  was  no  way  in  which  he  could  be 
brought  into  court  but  by  a  new  original. 

I.  Norris,  contra. 

Jones,  J. :  An  arrest  of  judgment  is  In  effect  nothing  more  than 
superseding  a  verdict  for  some  cause  apparent  upon  the  record, 
which  shows  that  the  plaintiff  is  not  entitled  to  the  benefit  of  the 
verdict.  It  is  often  followed  by  a  judgment  for  the  defendant,  that 
he  go  without  day,  but  it  is  not  of  itself  a  judgment  for  the  defend- 
ant. The  court  may,  after  an  arrest  of  judgment,  award  a  repleader 
or  a  venire  de  novo  without  a  repleader.  Which  of  these  courses  is 
the  proper  one,  depends  upon  the  nature  of  the  defect  for  which 
the  judgment  is  arrested."®  If  it  appears  by  the  record  that  the  plain- 


(1837)  ;  Ames'  Cases  on  Pleading  (2d  ed.)  260,  and  the  cases  there  collected. 
See,  also,  Ruth  V.  Kiita,  I  WattsllPa.)  48q_(i8.1'^)  ;  Johnson  v^Clark,  2  W. 
N^_Cas.._Xia.X4S4-XiS74)  ;  Langan  v.  Enos  Fire  Escafe  Co:,  233  III.  308,  S4 
NTR  267  (1908)  ;  Klofski  V.  Railroad  S.  Co.,  235  111.  146,  85  N.  E.  274 
(1908)  ;  Varn  v.  Pelot,  55  Fla.  357,  45  So.  1015  (1908)  ;  Ardison  v.  ///.  Cent. 
R.  Co.,  155  111.  App.  274  (1910);  and  compare  Hagar  v.  Norton,  188  Mass. 
47i  7^  N.  E.  1073  (1905)  ;  Massncco  v.  Tomassi,  80  Vt.  186,  67  Atl.  551  (1907). 

^''Butrhpr  V.  Mntts,  i  Miles  (Pa.)  153  (1836) . 

^*Accord:  State  ex  rcl.  Bond  v.  Fisher,  230  Mo.  325,  130  S.  W.  35  (1910). 
See,  also,  Gibson  v.  Waicrhonse,  5  Maine  19  (1827)  ;  Pratt  v.  Thomas,  2  Hill 
(S.  Car.)  654  (1835)  ;  Kauffman  v.  Kanffman,  2  Whart.  (Pa.l  139  (1836)  ; 
Kevile  v.  Shriver,  11  G.  &  J.  (Md.)  405  (1841)  ;  Rabcr  v.  Jones,  40  Ind.  436 
(1872);  Taylor  v.  Jones,  52  Ala.  78  (1875);  Craivford  v.  Crockett,  55  Ind. 
220  (1876)  ;  Sanner  v.  Sayne,  78  Ga.  467,  3  S.  E.  651  (1887)  ;  Johnson  v.  John- 
son, 30  Colo.  402,  70  Pac.  692  (1902)  ;  Stid  v.  Missouri  P.  R.  Co.,  211  Mo.  411, 
109  S.  W.  728  (1907).   Compare  Kitchenman  v.  Skecl,  3  Exch.  49  (1848). 

As  to  whether  error  lies  from  an  order  arresting  judgment  compare 
Bemis  v.  Faxon,  2  Mass.  141  (1806)  ;  Skinner  v.  Robeson,  4  Yeates  (Pa^j_^7=> 
(1807)  ;  Benjamin y.  Armstrong.  2  Serg.  &  R7  (Pa.)  ^02  (1816)  :  Adam.iv. 
Mercdew,  3  Y.  &  Jer.  419  (1829)  ;  Favor  v.  Philbrick,  5  N.  H.  357  (1831)  ; 
Pozvell  V.  Kinney,  6  Blackf.  (Ind.)  359  (1842)  ;  Boivie  v.  Kansas,  51  Mo.  454 
(1871)  ;  Daniels  v.  Denver,  2  Colo.  595  (1875)  with  Fish  v.  Weatherwax,  2 
Johns.  Cas.  (N.  Y.)  215  (1801);  Home  v.  Barney,  19  Johns.  (N.  Y.)  247 
(1821)  ;  People  v.  Onondaga  G.  S.,  2  Wend.  (N.  Y.)  631  (1829)  ;  Wallis  v. 
Sparks,  Morr.  (Iowa)  20  (1835)  ;  Garesche  v.  Emerson,  31  Mo.  258  (i860)  ; 
Morehcad  v.  International  R.  Co.,  46  Tex.  178  (1876)  ;  Brazel  v.  New  South 
Coal  Co.,  131  Ala.  416  (1901). 

Where  judgment  is  arrested  for  a  defect  in  substance  in  pleading  a  new 
action  may  be  brought  and  the  former  proceeding  can  not  be  pleaded  as  res 
adjiidicata.  Louisville  &  N.  R.  Co.  v.  Beasley,  123  Tenn.  629,  134  S.  W.  306 
(1910J  ;  State  ex  rel.  Bond  v.  Fisher,  supra.  See  Myers  v.  Ftlley,  i2jDi%\.. 
(Pa.)  562  (1903). 


494  TRIAL 

tifl  has  no  cause  of  action,  the  court  will  give  judgment,  after  the 
arrest  of  judpnent  on  the  verdict,  that  tiie  plaintiff  take  nothing  by 
his  writ,  and  that  the  defendant  go  without  day.  If  issue  be  joined 
upon  an  immaterial  point,  there  being  a  sufficient  cause  of  action 
alleged  in  the  declaration,  the  i)roncr  course  is  to  award  a  repleader. 
If  the  ploaclings  be  sufficient  and  the  issue  well  joined,  but  the  ver- 
dict is  imperfectly  found,  it  is  usual  to  award  a  venire  de  novo; 
and  tiiis  it  is  said  may  be  done  upon  the  motion  of  the  defendant, 
witliout  a  motion  in  arrest  of  the  judgment. 

The  venire  de  novo  is  an  ancient  proceeding  of  the  common  law. 
It  was  in  use  long  before  the  practice  of  granting  new  trials.  It  fol- 
lows of  course  upon  the  granting  of  a  new  trial ;  but  as  a  distinct 
proceeding  it  is  commonly  adopted  after  a  bill  of  exceptions  or  after 
a  special  verdict  imperfectly  found,  but  always  for  some  cause  ap- 
parent on  the  record,  and  if  granted  when  it  should  not  be,  it  is  error, 
and  tlie  award  of  it  may  be  reversed. 

A  new  trial,  on  the  other  hand,  is  commonly  granted  after  a  gen- 
eral verdict  for  some  cause  not  apparent  on  the  record,  and  it  is  not 
assignable  for  error.  Hamhleton  v.  Veere,  2.  Saund.  1716,  (n.  i); 
Goodtitle  v.  Jones,  7  T.  Rep.  43,  48;  IVitham  v.  Lewis,  i  Wils.  48, 
56;  Com.  Dig.  tit.  Pleader,  R.  18;  i  Sellon's  Pr.  chapter  11,  sec- 
'tion  3,  (C.  D.)  ;  Aliller  v.  Ralston,  i  Serg.  &  R.  (Pa.)  309;  Ebersol 
V.  Krug,  5  Binn.  (Pa.)  53;  Lessee  of  Pickering  v.  Rutty,  i  Serg.  & 
R.  (Pa.)  515- 

In  this  case  the  fault  was  in  the  verdict.  Of  course  it  appears 
upon  record.  A  venire  facias  de  novo  is  therefore  proper. 

In  regard  to  the  objection  that  the  defendant  is  no  longer  in  court 
in  this  action,  it  should  be  observed  that  the  judgment  was  arrested 
at  this  term,  and  no  judgment  has  been  entered  for  the  defendant. 
He  is  therefore  still  in  court  and  bound  to  take  notice  of  tlie  further 
proceedings  in  the  cause.  But  if  the  term  had  been  allowed  to  elapse 
after  the  arrest  of  judgment,  and  the  cause  had  not  been  continued 
by  a  curia  adv.  vult,  according  to  strict  notions  of  practice,  tlie  action 
would  have  been  discontinued,  and  the  defendant  without  day  in 
court. 

Venire  de  novo  awarded. 


CHAPTER  V 

Judgment 

SECTION  I.    RENDITION  AND  ENTRY 

3  Blackst.  Connn.  395 

Judgments  are  the  sentence  of  the  law,  pronounced  by  the  court 
upon  the  matter  contained  in  the  record;^  and  are  of  four  sorts. 
First,  where  the  facts  are  confessed  by  the  parties,  and  the  law  de- 
termined by  the  court;  as  in  case  of  judgment  upon  demurrer; 
secondly,  where  the  law  is  admitted  by  the  parties  and  the  facts  dis- 
puted; as  in  case  of  judgment  on  a  verdict;  thirdly,  where  both  the 
fact  and  the  law  arising  tliereon  are  admitted  by  the  defendant; 
which  is  the  case  of  judgments  by  confession  or  default;^  or,  lastly, 
where  the  plaintiff  is  convinced  that  eitlier  fact,  or  law,  or  both, 
are  insufficient  to  support  his  action,  and  therefore  abandons  or 
withdraws  his  prosecution;  which  is  the  case  in  judgments  upon  a 
nonsuit  or  retraxit.^ 

The  judgment,  though  pronounced  or  awarded  by  the  judges, 
is  not  their  determination  or  sentence,  but  the  determination  and 
sentence  of  the  law.  It  is  the  conclusion  that  naturally  and  regularly 
follows  from  the  premises  of  law  and  fact,  which  stand  thus : 
against  him,  who  hath  rode  over  my  corn  I  may  recover  damages 
by  law ;  but  A  hath  rode  over  my  corn ;  therefore  I  shall  recover 
damages  against  A.  If  the  major  proposition  be  denied,  this  is  a 
demurrer  in  law;  if  the  minor,  it  is  then  an  issue  of  fact,  but  if 
both  be  confessed  (or  determined)  to  be  right,  the  conclusion  or 
judgment  of  the  court  can  not  but  follow.*  Which  judgment  or 
conclusion  depends  not  therefore  on  the  arbitrary  caprice  of  the 
judge,  but  on  the  settled  and  invariable  principles  of  justice.   The 


^Gifford  V.  Livingston^  2  Den.  (N.  Y.)  380,  391  (1845)  ;  State  v.  Wood, 
23  N.  J.  L.  560  (1850)  ;  Whiteivcll  v.  Emory,  3  Mich.  84  (1853);  Deuel  V. 
Haivke,  2  Minn.  50  (1858)  -.Mahoning  Cntinty  Bank's  Appeal,  yz  Pa.  St>_-LSg 
(1858)  ;  Ludlow  V.  Norjolky'Zy  Va.  319,  12  S.  E.  612  (1891)  ;  State  v.  Fleming, 
147  Mo.  I,  44  S.  W.  758  (1898)  ;  State  v.  Muench,  217  Mo.  124,  117  S.  W. 
25  (1908);  McGuire  v.  Bryant  &  Co.,  53  Wash.  425,  102  Pac.  237  (1909); 
Consolidated  G.  Co.  V.  Strut  hers,  41  Mont.  565,  III  Pac.  152  (1910). 

'^Thompson  v.  Gilmore,  50  Maine  428  (1861);  Frank  v.  Hardee,  22  La. 
Ann.  184  (1870)  ;  Cooper  v.  Kantcr,  24  Misc.  203,  52  N.  Y.  S.  625   (1S98)  ; 

Mnfrjpfiyr  /Ipprnl^  2  Pa     ^nper.  Ct.   s^2   (1896). 

^Beccher's  Case,  8  Co.  115  (1608)  ;  Harris  v.  Preston,  10  Ark.  201  (1849)  ; 
Broward  v.  Roche,  21  Fla.  465  (1885).  "A  retraxit  differs  from  a  nonsuit 
in  that  the  one  is  negative  and  the  other  positive;  the  nonsuit  is  a  mere 
default  and  neglect  of  the  plaintiff,  and  therefore  he  is  allowed  to  begin  his 
suit  again  upon  payment  of  costs ;  but  a  retraxit  is  an  open  and  voluntary 
reunuciation  of  his  suit  in  court,  and  by  this  he  forever  loses  his  action."  3 
Bl.  Comm.  296. 

*New  York,  N.  H.  &  H.  R.  Co.  v.  Hungerford,  75  Conn.  76  (1902). 

495 


496  JUDGMRNT 

judpncnt.  in  short,  is  the  remedy  ]M-cscrihc(l  hy  hiw  for  the  redress 
of  injuries;  and  the  suit  or  action  is  the  vehicle  or  means  of  admin- 
isteriufj  it.  What  that  remedy  may  be,  is  indeed  the  result  of  de- 
hberation  and  study  to  point  out ;  and  therefore  the  style  of  tlie 
judpnent  is,  not  that  it  is  decreed  or  resolved  by  the  court,  for  then 
the  judqinent  might  appear  to  be  their  own;  but,  "it  is  considered," 
twisiJcraltDU  est  per  curiam,  that  the  plaintilT  do  recover  his  dam- 
ajjes,  his  debt,  his  possession,  and  the  like;  which  implies  that  the 
judi^ment  is  none  of  their  own;  but  the  act  of  law,  pronounced  and 
declared  by  tlie  court,  after  due  deliberation  and  inquiry.^ 


ZAHORKA  AND  OTHERS  v.  GEITH. 

Supreme  Court  of  Wisconsin,  1906 

129  Wis.  498. 

Appeal  from  a  judgment  of  the  Circuit  Court  for  Milwaukee 
County. 

In  the  matter  of  admitting  to  probate  the  last  will  and  testament 
of  one  Carl  Geith,  deceased,  the  question  arose  as  to  whether  the 


^Strictly,  a  "judgment"  is  restricted  to  a  proceeding  at  law,  while  a  "de- 
cree" is  the  adjudication  of  a  court  of  equity,  but  in  jurisdictions  that  have 
aboHshed  the  distinction  between  law  and  equity  so  far  as  procedure  is  con- 
cerned, the  final  determination  of  any  suit  is  known  as  a  judgment.  Walker 
V.  Walker,  03  Iowa  643,  61  N.  W.  930  (1895)  ;  N.  Y.  Code  Civ.  Proc,  §1200; 
Cal.  Code  Civ.  Proc,  §577.  It  is  necessary,  also,  to  distinguish  between  an 
order  and  a  final  judgment.  "The  former  is  a  decision  made  during  the  prog- 
ress of  the  cause,  either  prior  or  subsequent  to  final  judgment,  settling  some 
point  of  practice  or  some  question  collateral  to  the  main  issue  presented  by 
the  pleadings,  and  necessan,'  to  be  disposed  of  before  such  issue  can  be  passed 
upon  by  the  court,  or  necessary  to  be  determined  in  carrying  into  execution 
the  final  judgment.  The  latter  is  the  determination  of  the  court  upon  the  issue 
presented  by  the  pleadings,  which  ascertains  and  fixes  absolutely  and  finally 
the  rights  of  the  parties  in  the  particular  suit  in  relation  to  the  .'•-ubjcct-matter 
in  litigation,  and  puts  an  end  to  the  suit."  Loving  v.  Illslcy,  i  Cal.  24  (1850)  ; 
Davis  V.  Barr,  q  S.  &  R.  (Pa.)  516  (1820);  CJMs£US^JL^  L-  Assii^J^i^iicuig- 
tanJr^^^^T^^^^'i^^V^Mcrcer  v.  Glass,  89  Ky.  199  (1889)  ;  Ex  parte 
ClnncryTL.  K.  12  (J.  ii.  Div.  342  (1884)  ;  Onslow  v.  Commissioners,  L.  R. 
25  Q.  B.  Div.  465  (1890)  ;  Goldring  v.  Rcid,  60  Fla.  78,  53  So.  503  (1910).  For 
modern  English  practice  see  Rules  of  Supreme  Court,  order  xl,  rules  l-io; 
order  xli,  rules  i-io. 

"Tiie  dogget,  or  as  it  is  commonly  called,  the  docket  or  docquet,  is  an  in- 
dex to  the  judgment,  invented  by  the  court  for  their  own  ease,  and  the 
security  of  purchasers,  to  avoid  the  trouble  and  inconvenience  of  turning  over 
the  rolls  at  large.  The  practice  of  docketing  judgments  seem  to  have  first 
obtained  as  early  as  the  reign  of  King  Henry  the  Eighth,  in  the  Court  of 
Common  Pleas."  2  Tidd's  Practice  (9th  ed.)  939.  The  keeping  of  the  dockets 
was  regulated  by  statute.  7  &  8  William  III,  ch.  36.  Before  the  statute,  it  is 
said,  the  judgment  bound  the  lands,  and  the  docket  was  notliing  more  than  an 
index.  After  the  statute  it  was  deemed  necessary  that  the  judgment  should 
be  docketed  in  order  to  bind  the  lands  as  to  purchasers  and  mortgagees.  2 
Tidd's  Practice  (9th  ed.)  040;  Gilbert's  Practice  C.  P.  140  (1737)  ;  Flower  v. 
Bolinghroke,  I  Str.  639  (1725)  ;  Wait  v.  Carth,  Barnes,  261  (1739).  But  in 
England  today,  a  judgment  does  not  operate  as  a  charge  on  land  until  a  writ 
for  the  purpose  of  enforcing  it  is  registered  in  the  Land  Registry  under  the 
Land  Charges  Registration  and  Searches  Act  of  1888  (51  and  52  Vict.,  ch.  51), 
and  of  1900  (63  and  64  Vict.,  ch.  26). 


ZAHORKA   V.    GEITH  497 

defendant  was  the  wife  of  the  testator  at  the  time  of  his  death,  and 
hence  whether  she  was  entitled  to  the  rights  given  to  her  as  widow 
by  statute.  The  court  below  found  that  defendant  was  the  lawful 
widow  of  decedent  and  from  the  judgment  in  her  favor  the  heirs 
at  law  and  legatees  and  devisees  named  in  the  will  appealed.® 

Cassoday,  C.  J. :  The  important  question  presented  is  whether 
the  defendant  in  this  action  had  been  divorced  from  her  former 
husband,  Edward  Baehr,  before  she  v/as  married  to  the  deceased, 
Carl  Geith,  December  8,  1894.  Of  course,  if  she  had  not  been  so 
divorced  before  such  marriage,  then  such  marriage  was  "absolutely 
void,  without  any  judgment  of  divorce  or  other  legal  proceeding." 
Sections  2349,  2330,  Stat.  1898.  In  obedience  to  such  statutes  this 
court  has  so  declared.  Williams  v.  Williams,  63  Wis.  58,  61.  Upon 
full  hearing  of  the  divorce  action  and  at  the  close  of  the  trial  thereof, 
the  circuit  court  on  September  6,  1890,  declared  that  "judgment  is  or- 
dered for  plaintiff  and  against  defendant."  This  is  claimed  to  be  a 
mere  order  for  judgment,  which  did  "not  affect  the  status  of  the 
parties  so  as  to  render  them  capable  of  contracting  marriage  with 
others."  In  support  of  such  claim  counsel  rely  on  State  v.  Eaton,  85 
Wis.  587,  where  such  language  was  used.  That  was  a  criminal  ac- 
tion for  adultery,  and  this  court  also  held  that  "if  the  judgment, 
when  entered,  can  for  any  purpose  take  effect  from  the  date  of  the 
order  therefor,  it  can  not  operate  to  make  an  act  a  crime  which  was 
not  so  when  committed,  or,  if  then  a  crime,  to  make  it  one  of  a 
higher  grade."  The  ruling  of  this  court  in  that  case  seems  to  assume 
that  when  such  judgment  of  divorce  should  be  entered,  pursuant 
to  such  order,  it  might  take  effect  for  some  purposes  "from  the  date 
of  the  order  therefor."  It  has  been  held  that  "judgment  of  divorce, 
after  being  signed  by  judge  and  filed  with  clerk,  is  binding  upon  the 
parties  and  their  privies,  although  not  entered  by  the  clerk."  Estate 
of  Newman,  75  Cal.  213,  7  Am.  St.  146.  In  a  later  case  in  that  state 
it  was  held:  "Judgment  becomes  rendered  and  the  rights  of  the 
parties  established  at  the  time  the  court  pronounces  its  decision; 
and  it  is  not  necessary  to  its  validity  that  it  should  be  in  writing  or 
signed  by  the  judge  .  .  .  Judgment  of  divorce  becomes  effective 
at  the  time  of  its  rendition,  although  it  is  not  entered  by  the  clerk 
until  a  subsequent  date."  Estate  of  Cook,  yy  Cal.  220;  Allen  v.  Voje, 
114  Wis.  i.^ 

In  ordering  judgment  for  the  plaintiff  and  against  the  defend- 
ant in  the  divorce  action  here  under  consideration  there  was  no 
claim  nor  mention  of  alimony  to  be  awarded  as  in  the  divorce  action 
considered  in  State  v.  Eaton,  supra.  There  can  be  no  question  but 
that  the  circuit  court,  in  the  language  quoted  above,  pronounced 


*The  statement  of  facts  is  abiidged  from  the  opinion,  part  o£  which  is 
omitted. 

'Compare  Seaman  v.  Ward,  I  Hilton  (X.  Y.)  52  (1856)  where  it  is  said, 
per  Daly,  J.:  "It  was  admitted,  on  the  trial,  that  Justice  McCarthy  rendered 
judgment,  in  his  mind,  within  the  four  days,  though  it  was  not  entered  until 
afterwards.  There  is  no  such  thing  as  a  judgment  rendered  in  the  mind  of 
the  justice.  Judgment  is  a  judicial  act,  not  a  mental  resolution.  It  is  not 
enough  that  the  judge  concludes  to  render  judgment;  he  must  declare  it." 
Accord:   Jones  v.  Walker,  5  Yerg.  (Tenn.)  427  (1827), 

32 — Civ.  Prog. 


498  Jl'lxniKNT 

iiulgiiicnt  of  tlivorce  in  favor  of  this  defendant  and  against  Edward 
Baclir.  then  residin*;-  in  Germany.  German  Am.  Bank  v.  Poivcll, 
iJi  Wis.  575.  There  was  nothin<jf  further  to  be  done  except  for  the 
clerk  to  eiiter  iudjj^nient  in  obedience  to  surh  direction  of  the  court. 
'1  he  court  had  fully  ]ierformed  its  judicial  functions.  The  clerk 
failed  to  perform  his  duty  as  clerk.^ 

The  question  recurs  whether  u])on  the  records  of  the  court  and 
the  ]iroofs  taken  in  ojien  court  and  the  findings  of  the  court  made 
Mav  19,  1904,  as  to  the  facts  as  they  v/ere  September  6,  1890,  the 
trial  court  was  justified  in  ordering  judgment  in  the  divorce  action 
i:i<nc  pro  tunc  as  of  September  6,  1890,  and  whether  the  judgment 
entered  May  19,  1904,  pursuant  to  such  order  mmc  pro  tunc  as  of 
September  6,  1890,  was  binding  and  effectual  in  dissolving  the  mar- 
riage relation  between  this  defendant  and  Edward  Baehr  as  of  Sep- 
teniber  6,  1890.  After  careful  consideration  we  are  constrained  to 
hold  that  such  judgment  of  divorce  was  binding  and  effectual.  Thus 
it  is  said  by  Mr.  Freeman :  "The  entry  of  judgment  nunc  pro  tunc  is 
alwavs  proper  when  a  judgment  has  been  ordered  by  the  court  but 
the  clerk  has  failed  or  neglected  to  copy  it  into  the  record."  i  Free- 
man, Tudgm.  (4th  ed.),  §  61.** 

Judgment  aitlrmed. 


'"Accord:  Huntington  v.  Charlotte,  15  Vt.  46  (1843);  In  re  Cook,  77 
Cal.  220,  17  Pac.  923,  I  L.  R.  A.  567,  n  Am.  St.  267  (1888)  ;  Holt  v.  Holt, 
107  Cal.  258,  40  Pac.  390  (1895).  "The  pronoiincin.c:  of  judgment  is  a  judicial 
act;  the  entr>-  of  record  thereof  is  a  ministerial  duty.  The  judgment  is  com- 
plete when  properl}'  declared,  though  the  mechanical  act  of  recording  the 
same  has  not  been  performed."  Sicher  v.  Frink,  7  Colo.  148,  2  Pac.  901  (1883)  ; 
Goddard  v.  Coffin,  2  Ware  (U.  S.)  381,  Fed.  Cas.  No.  5490  O849)  ;  As±dcJlLs 
Atfj^nj  '>4-'T'?i7  St  t8;^  (T-^54)  ;  Casement  v.  Rinpgold,  28  Cal.  335  (1865); 
'Uray  v.  Palmer,  28  Cal.  416  (1865)  ;  Kehoe  v.  Blcthcn,  10  Nev.  445  (1876)  ; 
Los  Angeles  County  Bank  v.  Raynor,  61  Cal.  145  (1882)  ;  Holtby  v.  Hodgson, 
L.  R.  24  Q.  B.  Div.  103  (1S89)  ;  Risk  v.  Uffelman,  7  Misc.  133,  27  N.  Y.  S. 
392,  57  N.  Y.  St.  102  (1844)  ;  State  v.  IVeber,  96  Minn.  422,  105  N.  W.  490, 
113  Am.  St.  630  (1905)  ;  United  States  v.  S toller,  180  Fed.  910  (1910)  ;  JVallis  v. 
first  Aat.  Bk.,  155  Wis.  533,  14S  N.  W.  195  (1914)  ;  Brotm  v.  Cray,  88 
Conn.  141,  89  Atl.  1 123  (1914).  Compare,  under  statutes,  Callahan  v.  Votruba, 
104  Iowa  672,  74  N.  W.  13,  40  L.  R.  A.  375,  65  Am.  St.  538  ( 1898)  ;  Locke 
V.  Hubbard,  9  S.  Dak.  364,  69  N.  W.  588  (i8g5)  ;  Maurin  v.  Carnes,  71  Mmn. 
308,  74  N.  W.  139  (1898)  ;  Crouse y.  Murphy,  140^ a^  St.  335,  21  Atl.  358, 
12  L.  R.  A.  58,  23  Am.  St.  232  (1891)  ;  State  v.  Judge  of  Uiviswn,  128  La.  914, 
.S5  So.  574  (1911)  ;  F arris  v.  Matthezvs,  149  Ky.  455,  149  S.  vV.  896  (1912). 
Courts,  in  the  absence  of  a  statute,  have  provided  by  general  rule  for  the 
entry  of  judgments  by  the  clerk  in  certain  cases,  and  in  this  respect,  the  act 
of  the  clerk  is  ministerial.  Sommerville  V.  Fiske,  137  Mass.  91  (1884)  ;  Boyd 
V.  Insurjia^e  Patrol.  20  W.  N.  Cas.  (Pa.')  ^^  (1887);  Fountalne  V.  Hudson, 
93  Mo.  62,  5  S.  W.  692,  3  Am.  St.  515  (1887)  ;  Robostelh  v.  Railroad  Co.,  34 
Fed.  507  (1888)  ;  Crim  v.  Kessing,  89  Cal.  478,  26  Pac.  1074,  23  Am.  St.  491 
(1891)  ;  Card  V.  Meincke,  70  Hun  3S2,  24  N.  Y.  S.  27S,  54  N.  Y.  St.  285 
(1893)  ;  Rothschild  v.  Knight.  176  Mass.  48,  57  N.  E.  337  (1900)  ;  Collins  v. 
Davis,  114  N.  Y.  S.  792  (1909);  Central  Trust  Co.  v.  Holmes  Min.  Co.,  30 
Nev.  437,  97  Pac.  390  (1908). 

•Accord:  Reily  v.  Burton,  71  Ind.  118  (1880);  Young  V.  Young,  lOS 
Mo.  624,  65  S.  W.  106.  88  Am.  St.  440  (lOoD  ;  Metr.ger  v.  Morley,  197  HI- 
208,  64  N.  E.  280,  90  Am.  St.  158  (1902)  ;  State  v.  Goodrich,  159  Mo.  App. 
422,  140  S.  W.  629  (1911)  ;  Stein  v.  Meyers,  253  111.  I99.  97  N.  E.  295  (1912)  ; 
Creed  v.  Marshall,  160  N.  Car.  394,  76  S.  E.  270  (1912)  ;  Chester  v.  Graves. 


BELL  V.    OTTS  499 

BELL  V.  OTTS 

Supreme  Court  of  Alabama,  1892 

loi  Ala.  186. 

Appeal  from  the  Circuit  Court  of  Jefferson. 

Tried  before  the  Hon.  James  B.  Head. 

Tliis  was  a  statutory  action  of  ejectment  brought  by  the  appel- 
lee against  the  appellants,  and  sought  to  recover  certain  described 
property.  The  judgment  from  which  the  present  appeal  is  prose- 
cuted is  in  the  following  language :  "This  day  came  the  parties  by 
their  attorneys,  and  the  demurrer  to  pleas  were  sustained  by  the 
court,  the  material  facts  therein  averred  being  provable  under  tlie 
general  issue;  and  issue  being  joined,  thereupon  came  a  jury  of 
twelve  good  and  lawful  men,  to  wni :  R.  W.  Beck  and  eleven  others, 
who,  being  duly  sworn  and  empanelled  according  to  law,  on  their 
oaths  say,  'We  the  jury  find  for  the  plaintiff  for  the  land  sued  for 
viz.,  S.  y2  of  S.  E.  }i  of  Sec.  6,  T.  13  S.,  R.  2  W.,  in  Jefferson 
county,  and  twenty-five  dollars  damages  for  detention  as  against 
defendant,  Martha  Bell,'  and  judgment  is  rendered  against  defend- 
ants Samuel  Mace  and  Henry  Edwards  for  land  sued  for,  together 
with  all  the  costs  in  this  behalf  expended,  for  which  execution  may 
issue."  The  opinion  renders  it  unnecessary  to  notice  in  detail  the 
several  rulings  of  the  lower  court. 

Haralson,  J.:  The  verdict  in  this  case  was:  "We  the  jury 
find  for  the  plaintiff  for  the  land  sued  for  (describing  it),  and 
twenty-five  dollars  damages  for  detention  against  defendant,  Martha 
Bell."  On  this  verdict  a  judgment  ought  to  have  been  entered  against 
all  the  defendants  for  the  land  sued  for,  for  twenty-five  dollars 
against  Martha  Bell  as  damages  for  detention,  and  against  all  of 
them  for  the  costs,  Code,  sections  2709-10;  67  Ala.  197.  Immediately 
following  this  verdict,  with  a  comma  between,  appears  what  purports 
to  be  a  judgment  in  the  cause,  based  on  the  verdict,  namely,  "And 
judgment  is  rendered  against  the  defendants,  Samuel  Mace  and 
Henry  Edwards,  for  the  land  sued  for,  together  with  all  the  costs 
in  this  behalf,  for  which  execution  may  issue." 

A  judgment  shall  be  complete  and  certain  in  Itself,  and  must 
appear  to  be  the  act,  the  adjudication  of  the  court,  and  not  a  mem- 
orandum or  certified  result.  Speed  v.  Cocke,  57  Ala.  209.  Among 
various  definitions  of  a  judgment  in  the  books,  not  differing  in 
legal  effect  from  each  other,  we  have  the  one  that  it  is  "the  final 

159  Ky.  244,  166  S.  W.  998  (1914).   But  intervening  equities  will  be  protected. 
Leonard  v.  Broughton,  120  Ind.  536,  22  N.  E.  731,  16  Am.  St.  347  (1889). 

It  is  error  to  enter  final  judgment  before  all  the  issues  are  disposed  of. 
Meylin  v.  Woodford,  i  Blackf.  (Ind.)  286  (1823)  ;  Pnrii  v  Hnrdpn,  9  Sprg- 
&R^££aL).2.^  (1822):  Dow  v.  Rattle,  12  111.  373  ( i85T)T Williams  v.  Perkins, 
21  Ark.  18  (i860)  ;  Gage  v.  Allen,  84  Wis.  323,  54  N.  W.  627  (1893)  ;  Stone 
V.  Perkins,  217  Mo.  586,  117  S.  W.  717  (1908);  Gross  v.  Bennington,  52 
Wash.  417,  100  Pac.  846  (1909)  ;  Montgomery  v.  Gahagan,  246  Mo.  310,  151 
S.  W.  453  (1912).    See  also  N.  Y.  Code  Civ.  Proc,  §§  1221,  1225. 


c^ftf).  JUDGMENT 

consideration  and  dotcrniinalion  of  a  court  of  competent  jurisdic- 
tion upon  the  matters  submilltcd  to  it."  i  iM'ocnian  on  judgments, 
section  2 ;  ]r/iihi'cll  v.  Rwory,  3  Mich.  84,  59  Am.  Dec.  220.  The  lan- 
j:^uaj;e  of  a  judgincnt  is,  "It  is  considered  by  the  court  that  the  plain 
tilT  iiavc  and  recover,  or  that  the  defendant  go  without  day."^"  If  ever 
what  purports  to  be  a  judgment  falls  short  of  being  a  finding,  an  ad- 
judication of  the  court,  com])letc  and  certain,  but  is  in  substance  a 
mere  memorandum  of  the  clerk  which  declares,  as  here,  no  more 
than  that  a  judgment  was  rendered,  without  setting  out  what  the 
nidgiliertt'wilt;,  it  can  not  be  sustained  as  the  final  consideration  and 
dett^rttri^Mlbft'of  the  court.  Dank  v.  Godhold,  3  Stew.  (Ala.)  240; 
Hmdhi.  'ri>W/,  20  Ala.  298. 

Y«l  Th^^Ii'^iihere  absolutely  nothing  in  the  shape  of  a  judgment 
against  ^thfe?' defendant,  Martha  Bell,  for  anytliing;  and  as  for  the 
otlier  defendants,  there  is  simply  a  declaration  that  judgment  is 
rendered  against  tliem  for  the  land  and  costs,  but  no  judgment  is 
in  fact  rendered.  This  entry  is  lacking  in  form  and  material  aver- 
ments to  constitute  it  a  judgment,  and  to  support  it  as  such  would 
be  to  sanction  an  uncertainty  and  looseness  in  the  record  and  pre- 
servation of  solemn  and  important  judicial  ascertainments,  such  as 
would  be  pernicious. 

Our  conclusion  is,  there  is  no  such  judgment  here  as  will  support 
an  appeal,  and  it  is  therefore  dismissed. 

Appeal  dismissed.^^ 


^"Bakcr  v.  State,  3  Ark.  491  (1840);  Jasper  Mercantile  Co.  v.  O'Rear, 
112  Ala.  247,  20  So.  583  (1895)  ;  Wilkinson  v.  Olin,  136  111.  App.  527  (1907)  ; 
Williams  v.  Connors,  149  111.  App.  29  (1909).  In  modern  practice  the  formal 
lansniage  of  the  judgment  is  not  regarded  as  material,  provided  that  it  is 
clearly  indicated  that  the  subject  in  controversy  has  been  adjudicated.  Todd 
v.  Potter,  I  Dav  (Conn.)  238  (1804)  ;  Whitakcr  v.  Bramson,  2  Paine  (U.  S.) 
209,  Fed.  Cas.  No.  17526  (1835)  ;  Needham  v.  Gillaspy,  49  Ind.  245  (1874)  ; 
Ware  v.  Pennington,  15  Ark.  226  (1854);  Haminan  v.  Lewis,  34  Tex.  474 
(1870)  ;  Alton  v.  Hcidrick,  248  111.  76,  93  N.  E.  386  (1910) ;  Tisdale  v.  Davis, 
182  111.  App.  31  (1913)- 

^Conover  v.  Conover,  17  N.  J.  L.  187  (1839);  Davidson  v.  Murphy,  13 
Conn.  213  (1839)  ;  Ferguson  v.  Staver,  40  Pa.  St.  2IX-I1861)  ;  Bevington  v. 
Buck,  18  Ind.  414  (1862)  ;  Wilbur  v.  Abbot,  58  N.  H.  272  (1878)  ;  Simmons 
v.  Craig,  137  N.  Y.  550,  33  N.  E.  76  (1893)  ;  Carter  v.  Elmore,  119  N.  Car. 
296,  26  S.  E.  35  (1896);  Fitzsimmons  v.  Munch,  74  111.  App.  259  (1897); 
Hall  v.  Beston,  13  App.  Div.  116,  43  N.  Y.  S.  304  (1897);  Birdsell  Mfg. 
Co.  V.  Independent  Fire,  &c.,  Co.,  87  111.  App.  443  (1899);  Hoodless  v. 
Jcrnigan,  46  Fla.  213,  35  So.  636  (1903);  Good  v.  Che.'ster,  65  W. 
Va.  13,  63  S.  E.  615  (1909);  Folcarclli  v.  Ward,  132  App.  Div.  316,  116 
N.  Y.  S.  1093  (1909)  ;  Levert  v.  Bcrthclot,  127  La.  1004,  54  So.  329  (1910). 
In  ParkjLMMlines,  147  Pa.  St.  407.  2.^  Atl.  76q  (1892),  an  action  of  replevin, 
the  verdict  foimd  rent  due  the  defendant  and  goods  of  a  certain  value 
liable  for  the  rent.  Subsequently  this  entry  was  made:  "Feb.  2,  1891.  Jury 
fee  paid  (by  deft.)  eo  die  judgment."  It  was  held  that  the  record  would 
not  support  an  execution.  Sterrett,  J.,  said:  "No  court  in  this  country, 
or  elsewhere,  has  gone  to  a  greater  length  than  the  courts  of  this  state  in 
sanctioning  extreme  brevity  in  the  entry  and  record  of  judgments;  but  when 
we  are  asked  to  sustain  a'so-called  judgment,  which  is  silent  as  to  the  sum 
for  which,  and  the  person  or  persons  against  whom  it  was  intended  to  be 
entered,  it  is  time  to  draw  the  line."  Compare  Helyete  v.  Rapp,  7  Serg.  &  R. 
(Pa.)  306  (1821)  ;  Sellers  v.  Burk,  47  Pa.  St.  344  (IgSJTT 


SNOW    V.    WEST  gOJ 

SNOW  z;.  WEST  Juob  -lo  x^nfijiaail 

bfuofI8    .inam^bui 

Supreme  Court  of  Utah,  i^it,  '^"^  ^°°/'"!f "" 
37  fy-^a/t  528.  •"  Xlfswf  w  ebiow  lo 

Action  by  A.  E.  Snow  against  E.  M.  Wesl^^^'^^iilfr^^ji^Rl 
Brothers,  as  assignee,  was  substituted  as  plaintifff^'^  ^*^  ^'•^'^iz  Jaol  stf 

The  court  entered  judgment  allowing  the  d^ftritd^fft  ^^Se^dff 
judgments.    Brothers  appeals.^-  1)  {'fro  i)-io:i3T  alorlv/ 

Frick,  J.:  The  first  assignment  of  error  t6' be  liotit6d-?^'^lMt 
the  court  erred  in  permitting  the  judgment  whf (:'h  \yi^^  ^ntet^U  ^bf- 
"the  sum  of  242.98"  to  be  set  off,  for  the  reasoii'iriWtH^Mffi^fil 
not  a  judgment  for  an  amount  certain  and  is  tfiefyfor^'''v'3{^''^Trii 
case  of  Carpenter  v.  Sherfy,  71  111.  427,  and  Avery'^."BW&ock, 

35  111.  175,  cited  by  appellant  in  support  of  his  contention,  seem  to 
hold  as  contended  for.^^  We  do  not  think,  however,  that  those  cases 
are  based  on  sound  legal  principles.  No  doubt  judgments  should 
be  specific  and  certain.  Judgments  should,  hqwever,  be. read,  con- 
strued and  applied  as  other  writings  are,  and  -^Ffii'^the  light  of 
the  pleadings  and  the  whole  record  they  are  certain,  they  should 
be  enforced.  This,  we  think,  is  the  doctrine  announced  by  the 
better  reasoned  cases,  and  is  supported  by  the^  4£xt  .writers.  In 
referring  to  this  subject  in  i  Black  on  Judgmenis,^  section  Fie,  where 
the  author  to  some  extent  reviews  the  cases,  .le  3ays:''!'^7\ft^OT^cl^ 
or  ambiguous  designation  of  the  parties,  of  Ihe'sutfect-MkfPef 'M- 
volved,  may  be  construed,  as  we  have  seen,"with  reference  to  the 
other  parts  of  the  record.  And  if  the  pleadings,  or  the  verdict,  show 
the  actual  amount  of  the  recovery,  without  any  doubt  or  room 
for  mistake,  it  would  seem  that  the  judgment  should  not  be  con- 
sidered invalid,  at  least  as  between  the  parties,  for  its  failure  to 
specify  the  sum  awarded  with  precision."  The  foregoing  text  is 
supported  by  the  cases  of  Carr  v.  Anderson,  24  Miss.  188,  and  Giits- 
willer  V.  Crowe,  32  Minn.  70,  in  which  the  facts  were  similar  to  those 
in  the  case  at  bar."  See,  also.  Freeman  on  Judgments,  section  48. 
Any  person  of  ordinary  intelligence  who  should  inspect  the  entry 

^"Part  of  the  opinion  of  the  court  is  omitted. 

^^Accord:   Hopper  v.  Lucas,  86  Ind.  43  (1882)  ;  Peter  v.  Hill,  13  111.  App. 

36  (1883)  ;  Boyne  v.  Vandalia  R.  Co.,  128  111.  App.  191  (1906),  and,  in  judg- 
ments for  taxes.  Laurence  v.  Fast,  20  111.  338,  71  Am.  Dec.  274  (1858); 
Lane  v.  Bommclman,  21  111.  143  (1859)  ;  Bdily  v.  Doolittle,  24  111.  577  (i860)  ; 
Woods  V.  Freeman,  i  Wall.  (U.  S.)  398,  17  L.  ed.  543  (1863)  ;  People  v.  San 
Francisco  Savings  Union,  31  Cal.  132  (1866)  ;  Randolph  v.  Metcalf,  6  Coldvv. 
(Tenn.)  400  (1869). 

"Accord:  Therme  v.  Bethenoid,  106  la.  697,  77  N.  W.  497  (1898)  ;  Gutc- 
willer  V.  Crozve,  32  Minn.  70,  19  N.  W.  344  (1884),  distinguishes  Tidd  v. 
Rines,  26  Minn.  201,  2  N.  W.  497  (1879),  on  the  ground  that  in  the  earlier 
case  the  figures  were  not  separated  by  a  line  or  decimal  mark.  See  also 
Collins  V.  Welch,  38  Minn.  62,  35  N.  W.  566  (1887)  ;  Dyke  v.  Bank,  90  Cal. 
397,  27  Pac.  304  (1891).  The  omission  of  the  word  dollars  in  a  verdict  is  not 
such  a  defect  as  to  prevent  the  rendering  of  judgment  according  to  the  mani- 
fest intent  of  the  jury.  Hopkins  v.  Orr,  124  U.  S.  510,  31  L.  ed.  523  (1887). 


502  jrnr.Mi-.NT 

oi  the  imli^^incnt  in  (iucsti(in  woiiUl,  wo  tiiinlc,  n^t  liavc  the  shghtcst 
hesitanc}'  or  doubt  with  respect  to  arrivinij  at  the  amount  of  the 
judg^iicnt.  Should  a  writing  or  record  which  would  be  read  and 
imderstood  by  all  ordinary  men  in  but  one  sense,  nevertheless,  be 
held  to  be  uncertain  by  a  court  of  justice  because  certain  signs,  marks 
or  words  usually  used  are  wanting?  It  would  seem  that  any  writing 
or  record  that  is  certain  to  all  ordinary  minds  should  likewise  be 
sufficiently  certain  in  a  court  of  justice.  Common  sense  should  not 
be  lost  sight  of  entirely  merely  because  a  court  acts  in  conformity 
to  certain  rules  of  evidence.  We  are  satisfied  that,  in  view  of  the 
whole  record  and  the  manner  in  which  the  figures  were  written  and 
pointed  off,  the  amount  of  the  judgment  in  question  was  no  more 
uncertain  than  if  the  dollar  sign  or  mark  had  in  fact  been  used,  or 
the  words  "dollars"  and  "cents"  had  been  written  out  in  full  after 
the  figures.  This  assignment  must  therefore  be  overruled.^^ 
Affirmed. 


KKNNON  r.  GILMER 

Supreme  Court  of  the  United  States,   i 

131  U.  S.  22. 

Action  bv  Kennon  to  recover  damages  for  personal  injuries 
sustained  while  a  passenger  in  a  stage  coach  operated  by  Gilmer 
and  others  between  the  towns  of  Deer  Lodge  and  Helena  in  the 
Territory  of  Montana.  At  the  trial  the  jury  returned  a  verdict  for 
the  plaintiff  for  $20,000  general  damages  and  $750  medical  ex- 
penses. Judgment  having  been  entered  on  the  verdict,  the  defend- 
ants appealed  to  the  Supreme  Court  of  the  Territory,  which  ordered 

"There  are  cases  which  hold  that  a  judgment  expressed  in  figures  and 
not  in  words  is  defective.  Cole  v.  Petty,  2  N.  J.  L.  60  (1806)  ;  Walton  v. 
Vanderhoof,  2  N.  J.  L.  73  (1806);  Ncal  v.  Collins,  2  N.  J.  L.  85  (1806)  ; 
Under  v.  Monroe,  33  111.  388  (186.4);  Smith  v.  Miller,  8  N.  J.  L.  175,  14 
Am.  Dec.  418  (1825);  Lloyd  v.  Hancc,  16  N.  J.  L.  127  (1837).  Contra: 
Tankersley  v.  Silhnrn,  Minor  (Ala.)  185  (1824);  Moore  v.  IVhitcomb, 
48  Mo.  543  (1871);  Daz'is  v.  McCray,  100  Ala.  545,  13  So.  665  (1892), 
and  in  East  Orange  v.  Richardson,  71  N.  J.  L.  458,  50  Atl.  897  (1904).  it  is 
held  that  the  entry  of  judgment  in  figures  is  a  mere  defect  in  form,  not  preju- 
dicial to  the  defendant,  and  therefore  furnishing  no  ground  for  reversal.  See 
also  Koppcrl  v.  Nagy,  37  111.  App.  23  (1890). 

If  a  judgment  purports  to  be  final  and  is  given  upon  a  money  dernand, 
the  amount  of  the  recovery  must  be  stated  with  certainty  and  precision. 
Dickinson  v.  Rahn,  98  III.  App.  243  (1901)  ;  Jones  v.  Acre,  Minor,  (Ala.)  5 
(1820)  ;  Berry  v.  Anderson,  2  How.  (Miss.)  649  (1837)  Brozvn  v.  Horless,  22 
Tex.  645  (1859)  ;  Noyes  v.  Ncwmarch,  83  Mass.  51  (1861)  ;  Battell  v.  Lowery, 
46  Iowa  49  (1877);  Bickford  v.  Flannery,  70  Maine  106  (1879);  People  v. 
Pirfenhrinck,  96  111.  68  (1879.)  •Park^Holmes.  142  Pa.  407.  23  Atl.  769  (1892)  ; 
Etheridge  v.  Middleton,  i  Marv.  (Del.)  139,  40  Atl.  714  (1893)  ;  Moore  v. 
Evans,  24  Idaho  153,  132  Pac.  971  (1913).  But  in  some  cases  the  judgment 
has  been  supported  bv  reference  to  the  pleadings  and  verdict.  Dinsmore  v. 
Austin,  ^i'mor,  (Ala.)  89  (1822)  ;  Lewis  v.  Smith.  2  Serg.  &  R.(Pa.)  142  (1815)  ; 
Sellers  V.  Burk,  47  Fa.  St^.AM-Ll^5  '■  Ulshafer  v.  Sieivarl^JlJ'a.  St.  170 
Ci^^2T^,'L:adnicr  v.  Ladnier,  64  Miss.  368,  i  bo.  492  (1886). 


KENNON    V.    GILMER  503 

the  judgment  to  be  reduced  to  the  sum  of  $10,750  and  affirmed  it 
for  that  amount.  Writs  of  error  to  the  Supreme  Court  of  the  United 
States  were  sued  out  by  both  parties. ^^ 

Gray,  J. :  By  the  action  of  the  court  in  entering  an  absolute 
judgment  for  the  lesser  sum,  instead  of  ordering  that  a  judgment 
for  that  sum  should  be  entered  if  the  plaintiff  elected  to  remit  the 
rest  of  tlie  damages,  and  that  if  he  did  not  so  remit  there  should 
be  a  new  trial  of  the  whole  case,  each  party  was  prejudiced;  and 
either,  therefore,  is  entitled  to  have  the  judgment  reversed  by 
writ  of  error.  The  plaintiff  was  prejudiced,  because  he  was  de- 
prived of  the  election  to  take  a  new  trial  upon  the  whole  case.  The 
defendant  was  prejudiced  because  if  the  judgment  for  the  lesser 
sum  had  been  conditional  upon  a  remittitur  by  the  plaintiff,  the 
defendants,  if  the  plaintiff  had  not  remitted,  would  have  had  a  new 
trial  generally ;  and  if  the  plaintiff  had  filed  a  remittitur,  and  thereby 
consented  to  the  judgment,  he  could  not  have  sued  out  a  writ  of 
error,  and  the  defendants  would  have  been  protected  from  the 
possibility  of  being  obliged  in  any  event  to  pay  the  larger  sum. 
Whereas  upon  the  absolute  judgment  entered  by  the  court,  without 
any  election  or  consent  of  the  plaintiff,  the  plaintiff  had  the  right 
to  sue  out  a  writ  of  error ;  and  he  availed  himself  of  that  right, 
and  docketed  his  writ  of  error  in  this  court  before  the  defendants 
docketed  their  writ  of  error.  The  defendants  were  thus  put  in  the 
position  of  being  obliged  to  contest  the  plaintiff's  writ  of  error,  in 
order  to  defend  themselves  against  being  held  liable  for  the  larger 
sum,  as  the  plaintiff  contended  that  they  must  be  upon  this  record. 

The  erroneous  judgment  of  the  Supreme  Court  of  the  Territory 
being  reversed,  the  case  will  stand  as  if  no  such  judgment  had  been 
entered;  and  that  court  will  be  at  liberty,  in  disposing  of  the 
motion  for  a  new  trial  according  to  its  view  of  the  evidence,  either 
to  deny  it,  to  grant  a  new  trial  generally,  or  to  order  judgment  for 
a  less  sum  than  the  amount  of  the  verdict,  conditional  upon  a  re- 
mittitur by  the  plaintiff.^^ 

Judgment  reversed. 

"The  statement  of  facts  is  abridged  and  part  of  the  opinion  omitted.  The 
decision  reversed  is  reported  in  5  Mont.  257. 

^'The  judgment  must  conform  to  and  follow  the  pleadings  and  verdict. 
Grosvenorv.  Danforth,  16  Mass.  74  (1819)  ;  Baltsell  v.  Hickman,  4  Litt.  (Ky.) 
265  (1823)  ;  Hawk  V.  Anderson,  9  N.  J.  L.  319  (1827)  ;  J)ennison  v.  Leech, 
Q^Pa,  St.  164  (18^8}  ;  Bennett  v.  Bidterzvorth,  11  How.  (U.  S.)  669,  13^-. 
ed.  859  (1850)  ;  Wright  v.  Delafield,  25  N.  Y.  266  (1862)  ;  Dawson  v.  Shirk, 
102  Ind.  184,  I  N.  E.  292  (1885)  ;  Fam  Etten  v.  Rosters,  48  Nebr.  152,  66 
N.  W.  1106  (1896);  Shuhnan  v.  Maison,  25  Misc.  765,  54  N.  Y.  S.  1009 
(1898)  ;  Gentry  v.  United  States,  loi  Fed.  51  (1900)  ;  Lczvis  v.  Story,  147 
111.  App.  221  (1909)  ;  Enshew  v.  Rcise,  117  N.  Y.  S.  906  (1909)  ;  Weeks  v. 
New  York,  &c.,  R.  Co.,  145  App.  Div.  535,  129  N.  Y.  S.  888  (1911)  ;  Spears 
V.  Wise,  187  Ala.  346,  65  So.  786  (1914).  If  a  verdict  is  found  for  a  sum 
certain,  the  court  can  not  give  judgment  for  a  greater  sum.  Reid  v.  Dunklin, 
5  Ala.  20s  (1843)  ;  Buck  v.  Little,  24  Aliss.  463  (1852)  ;  Mitchell  v.  Geisendorff, 
44  Ind.  358  (1873);  Alpers  v.  Schammel,  75  Cal.  590,  17  Pac.  708  (1888); 
Volker  v.  Bank,  26  Nebr.  602,  42  N.  W.  732  (1889)  ;  Halberg  v.  Brosscau, 
64  111.  App.  520  (1896);  Hanmneller  v.  Ackerman,  130  Mo.  App.  387,  109 
S.  W.  857  (1908);  or  a  less  sum,  Heidenheimer  v.  Schlett,  63  Tex.  394 
(1885);   Goggan  v.  Evans,  12  Tex.  Civ.  App.  256,  33   S.  W.  891    (1896); 


304  junr.^rKNT 

WTT.RF.R  1:  WTDNER 
Supreme  Corur  ov  New  York,  1828 

I  I  Tend.  (X.  y.)  56. 

Error  from  the  Monroe  Coninion  Pleas.  Daniel  K.  Widner 
brought  an  action  of  slander  against  Wilber  in  the  Monroe  Com- 
mon rieas.  In  declaring,  the  plaintiff  in  the  commencement  of  the 
declaration,  is  named  David  K.  Widner,  and  his  name  is  not  again 
mentioned.  The  defendant  appeared  and  pleaded,  issue  was  joined 
and  the  cause  brought  to  trial.  On  the  trial,  the  words  for  the 
speaking  of  which  the  action  was  brought,  were  proved  to  have 
been  spoken  of  and  concerning  Daniel  K.  Widner.  The  capias  was 
produced,  which  was  in  the  name  of  Daniel  K.  Widner,  and  the 
pleas  of  tlie  defendant  were  shown  to  be  entitled  Wilber  ads.  Daniel 
K.  Widner.  The  attorney  for  the  plaintiff  testified  that  Daniel  K. 
Widner  was  his  client,  and  that  the  suit  was  brought  for  him.  In 
the  record,  the  name  of  Daniel  K.  Widner,  as  plaintiff,  does  not 
occur,  except  in  the  warrant  for  attorney,  until  after  the  finding 
of  the  verdict,  when  it  is  found  in  a  continuance  of  curia  odvisare 
viilt,  as  that  of  the  plaintiff  in  the  cause;  then  follows  a  judgnient 
on  demurrer,  and  a  judgment  on  the  verdict  in  favor  of  the  said 


if  the  verdict  is  excessive,  the  remedy  is  a  new  trial,  unless  a  remittitur  is 

entered;  Pickwood  v.  JVright,  I  H.  Bl.  64:2  (1791)  ;  Atchison  T.,  &c.,  R.  Co. 

V.  Cogsix'ell,  23  Okla.  181,  99  Pac.  923  (1909)  ;  Walker  v.  Fuller,  29  Ark.  448 

(1874)  ;  Blackivcll  v.  Landrcth,  90  Va.  748,  19  S.  E.  791    (1894);  Excelsior 

Electric  Co.  v.  Sivcct,  59  N.  J.  L.  441,  31  Atl.  721  (1896)  ;  Dickinson  v.  Rahn, 

98  111.  App.  245  (1901).    In  England,  in  an  action  of  tort,  while  a  new  trial 

may   be   granted    for   an   excessive   verdict,    the   court   has   no   jurisdiction, 

without  the  defendant's  consent,  to  make  an  order  that  imless  the  plaintiff 

consents  to  reduce  the  damages  there  shall  be  a  new  trial.    Watt  v.   Watt, 

L.  R.  (1905),  A.  C.  115,  overruling  Belt  v.  Laii'es,  L.  R.  (1884),  12  Q.  B.  Div. 

356.   See  also  Rules  of  Supreme  Court,  order  xl,  rule  10.   la  Penasxlvanja^the 

I  Supreme  Court,  under  the  act  of  May  20,  1891,  P.  L.  lof,  §  2,  P.  &  L.  I5ig. 

(2d  ed.)  322,  has  power  to  reduce  a  judgment  on  a  verdict  to  such  sum  as  it 

vmav  deem  proper  and  just;  but  the  power  is  exceptional  and  sparingly  exer- 

/cised.   Smith  v^JUm^sJ'jib,  Co^^iyB-  Pa. _  St.  481^^16  Ajtl.  296,  35  L.  R.  A.  819 

(1896)  ;  Bcglcy  v.  Railroad  Co.j  201^  Pa.  84,  50  Atl.  1009  (1902)  ;  Slcvcnson 

Iv.  Ehcri -afe  CoaVCo.,  201  Pa.  ii2,.-f;o  Atl.  818,  88  Am.  St.  805  (1902)  ;  Dincm 

\'frSuprcme  Council  of  Catholic  MiiL  Ben.  Assn.,  213  Pa.  489,  62  Atl.   1067 

C1906)  ;  Murtland  v.  English,  214  Pa.  325,  63  Atl.  882,  112  Am.  St.  747  (1906). 

In  CoffTnan  v.  Srozi.'n,  7  Colo.   147,  2  Pac.  905    (f883),  the  defendant's 

answer  admitted  an  indebtedness  to  plaintiff  and  tendered  $31.40.    The  jury 

rendered  a  verdict  for  $20.40,  upon  which  judgment  was  entered.    Held,  that 

defendant  was  bound  by  his  tender  and  under  the  pleadings,  the  plaintiff  was 

entitled  to  $31.40  in  any  event;  therefore  judgment  was  reversed  and  the 

cause  remanded  with  directions  to  the  court  below  to  render  judgment  for 

that  sum.  Accord:  Swectland  v.  Tuthill,  54  111.  215  (1870). 

In  an  action  upon  a  statutory  right,  the  judgment  must  conform  to  the 
statute.  Thus  where  a  statute,  giving  a  right  of  action  for  wrongful  injury 
to  the  person  of  a  child  both  in  favor  of  the  parent  and  the  child,  provides 
that  separate  verdicts  and  judgments  shall  be  rendered,  a  judgment  for  the 
sum  of  the  two  separate  verdicts  is  erroneous.  American  Steel,  &c.,  Co.  v. 
Tynan,  183  Fed.  949  (191 1  Pa.  Act}. 


V.'ILLER   V.    WIDENER 


505 


Daniel  K.  Widner.  From  the  bill  of  exceptions  attached  to  the  rec- 
ord, it  appears  various  exceptions  were  taken  to  opinions  pronounced 
by  the  common  pleas  in  the  progress  of  the  trial ;  but  as  the  questions 
arising  upon  these  exceptions  are  not  particularly  passed  upon  by 
this  court,  in  the  opinion  pronounced,  it  is  deemed  necessary  to 
state  them. 

Sutherland,  J. :  The  objections  arising  on  the  face  of  the 
record  appears  to  be  unanswerable.  The  declaration  throughout  is 
in  the  name  of  David  K.  Widner,  and  the  judgment  is  in  favor  of 
Daniel  K.  Widner.  It  is  an  action  of  slander,  and,  on  tlie  face  of 
the  record,  Daniel  has  recovered  a  judgment  against  the  defendants 
for  a  slander  uttered  against  David.  No  doubt  it  was  a  mistake, 
and  enough  appears  in  the  bill  of  exceptions  to  authorize  the  amend- 
ment,^^ on  a  proper  application  for  that  purpose;  but  the  bill  of 
exceptions  can  not  be  used  in  aid  of  the  record,  and  there  is  nothing 
in  the  record  to  amend  by.  The  case  is  not  within  the  sixth  section 
of  the  statute  of  jeofails  (i  R.  L.  120),  because  the  true  name  is  not 
rightly  alleged  in  any  part  of  the  record. 

The  decisions  of  the  court  below,  I  am  inclined  to  think,  were 
correct  throughout,  and  that,  upon  the  bill  of  exceptions,  the  judg- 
ment ought  to  be  affirmed ;  but  for  the  error  in  the  record  it  must  be 
reversed. 

Judgment  reversed,  venire  de  novo}^ 

^^M^olf  V.  Stepney,  Cro.  EHz.  864  (1601)  ;  Birfon  v.  Mandel,  Cro.  Jac.  67 
(1605)  ;  Marsh  v.  Berry,  7  Cow.  (N.  Y.)  344  (1827)  ;  Prqwattqin  v,  McTier,J. 
Phila.  183  (i8=;o)  :  Shelly  v.  Dobbins,  31  La.  Ann.  530  (1879)';  Fay  v.  Stuben- 
rauch,  141  Cal.  573,  75  Pac.  174  (1904).  Compare  Albers  v.  Whitney,  i  Story 
(U.  S.)  310,  Fed.  Cas.  No.  137  (1840). 

^^Accord:  Scandovcr  v.  Warnc,  2  Camp.  270  (1809)  ;  Sweazy  v.  Nettles, 
2  Mo.  6  (1827)  ;  Ming  v.  Green,  6  Rand.  (Va.)  551  (1828)  ;  Reeve  v.  Lee,  6 
\\'is.  80  (1858)  ;  Ford  v.  Doyle,  2,7  Cal.  346  (1869).  Compare  Cleveland  R. 
Co.  v.  Siirrclls,  115  III.  App.  615  (1869).  To  support  a  judgment  the  names 
of  the  parties  must  appear  of  record  with  sufficient  certainty  to  permit  execu- 
tion to  be  issued.  Joseph  v.  Joseph,  5  Ala.  280  (1843)  ;  Captain,  &c.,  v. 
Paschal,  g  Heisk.  (Tenn.)  203  (1872)  ;  Moody  v.  Detttch,  85  Mo.  237  (1884)  ; 
Park  V.  Holmes.  \a7  Pa.  St.  497,  23  Atl.  ^69  (1892)  ;  Fuller  Watchmans  Elec- 
trical Director  Co.  vrtouis,  50  111.  App.  428  (1893)  ;  Hitch  v.  Gray,  i  Marv. 
(Del.)  400,  41  Atl.  91  (1895).  But  a  judgment  is  operative  for  or  against 
all  who  are  actual  parties,  although  their  names  be  given  incorrectly,  if  by 
reference  to  other  parts  of  the  record,  the  pleadings  and  process,  the  true 
parties  can  be  correctly  ascertained.  Wilson  v.  Nance,  11  Humph.  (Tenn.) 
189  (1850);  Vangeazel  v.  Hillyard,  I  Houst.  (Del.)  515  (1858);  Laftin  v. 
White,  38  111.  340  (1865)  ;  McCartey  v.  Kittrell,  55  Miss.  253  (1877)  ;  Preston 
V.  Wright,  60  Iowa  351,  14  N.  W.  352  (1882)  ;  ^Hendry  v.  Crandall,  131  Ind. 
42,  30  N.  E.  789  (1891)  ;  Roach  v.  Blakey,  89  Va.  767,  17  S.  E.  228  (1893)  ; 
Terry  v.  French,  5  Tex.  Civ.  App.  120,  22  S.  \V.  loii  (1893)  ;  First  Nat.  Bk. 
V.  Garland,  109  Mich.  515  (1896);  Ex  parte  Howard  Harbinson  Co.,  iig 
Ala.  484,  24  So.  516  (1898);  Chicago  Clock  Co.  v.  Tobin,  123  Cal.  377,  55 
Pac.  1007  (1899).  As  to  fictitious  names,  compare  Ford  v.  Doyle,  37  Cal.  346 
(1869)  ;  Bernstein  v.  Schoenfeld,  37  Misc.  610,  76  N.  Y.  S.  14  (1902),  with 
Campbell  v.  Adams,  50  Cal.  203  (1875)  ;  Alameda  Co.  v.  Crocker,  125  Cal.  loi, 
57  Pac.  766  (1899). 


5o6  JUDGMENT 

ROOT  r.  T<l'JJ.OWES 

Supreme  Judicial  Court  of  Massachusetts,  1850 
60  Mass.  29 

This  was  an  action  of  debt  on  judgment,  brought  against  William 
B.  F'cllowes  and  Newbury  Day.  The  declaration  averred  that  the 
]^laintiffs,  at  the  court  of  common  ])lcas,  held  at  Greenfield,  on  the 
second  Monday  of  November,  1846,  "recovered  judgment  against 
the  said  Fellowes  and  Day,  by  the  name  of  William  B.  Fellowes  and 
Day,"  and  that  said  judgment  was  unsatisfied.  The  defend- 
ant Fellowes  was  defaulted ;  but  Day  pleaded  the  general  issue. 

At  the  trial  in  the  court  of  common  pleas,  before  Mellen,  J.,  the 
plaintiffs  offered  to  prove  "that  Newbury  Day,  one  of  these  defend- 
ants, was  the  Day  referred  to  in  said  judgment."  His  counsel  ob- 
jected to  the  admission  of  parol  evidence  to  prove  that  fact;  but  the 
objection  was  overruled,  and  the  evidence  admitted.  A  verdict  was 
returned  against  Day,  and  he  alleged  exceptions  to  the  admission  of 
the  evidence. 

AIetcalf,  J. :  The  omission  of  Day's  Christian  name  in  the  writ 
on  which  the  judgment  now  in  suit  was  recovered  was  a  matter 
which  he  might  have  pleaded  in  abatement.  But  as  he  suffered  judg- 
ment to  go  against  him  without  objection  to  the  misnomer,  an  execu- 
tion on  that  judgment,  issued  against  him  by  the  same  defective 
name,  would  have  been  valid,  and  might  have  been  legally  enforced. 
Swith  V.  Bou'ker,  i  ]\'Iass.  76.  In  this  suit  on  the  judgment,  however, 
if  the  writ  had  omitted  his  Christian  name,  he  might  have  pleaded 
in  abatement,  as  he  might  have  done  in  the  original  action.  It  was 
proper,  therefore,  for  the  plaintiff  to  insert  his  full  name  in  the  writ, 
and  to  aver,  as  they  have  done,  that  they  recovered  judgment  against 
him  by  the  name  of  Day.  So  are  the  precedents.  2  Chit.  PI.  (6th  Am. 
ed.)  484. 

Ho\.-  then  are  the  plaintiffs  to  prove  this  allegation  in  their  writ, 
unless  by  parol  evidence?  The  counsel  for  Day  has  not  informed  us, 
and  we  do  not  know. 

Exceptions  overruled.^* 


=^°Accord:  Newcomh  v.  Peck,  17  Vt.  302,  44  Am.  Dec.  340  (1845)  ;  Hays 
V.  Varborough,  21  Tex.  487  (1858);  Goodgion  v.  Gilbreath,  32  S.  Car.  388, 
II  S.  E.  207  (1889).    Compare  Gardner  v.  Kraft,  52  How.  Pr.  (N.  Y.)  499 

(1877). 

One  sued  by  the  wrong  name  who  appears  and  fails  to  plead  the  misnomer 
in  abatement  is  concluded  bv  the  judgment.  Y.  B.  33  Hen.  VI,  7,  19;  Craw- 
ford V.  Satchwell,  2  Str.  1218  (1745)  ;  Smith  v.  Patten,  6  Taunt.  115  (1815)  ; 
Lafaveite  Ins.  Co.  v.  French,  59  U.  S.  404,  I5  L.  ed.  451  (1855)  ;  First  Nat. 
Bk.  V.  .loggers,  31  Md.  381,  100  Am.  Dec.  53  (1869)  ;  Bridges  v.  Layman,  31 
Ind.  384  C1869)  ;  Fond  v.  F.nnis,  69  111.  341  (1873)  ;  Louisville,  &c.,  R.  Co.  v. 
Hall,  12  Bush.  (Ky.)  131  (1876);  Shay  v.  McNamara,  54  Cal.  169  (1880); 
L'Etiqle  V.  Florida  C.  R.  Co.,  21  Fla.  353  (1885')  ;  Peterson  v.  Little,  74  Iowa 
223,  37  X.  W.  169  (1887)  ;  Kingen  v.  Stroh,  136  Ind.  610,  36  N.  E.  519  (1893)  ; 
Corrigan  v.  Sclnnidt,  126  Mo.  304,  28  S.  W.  874  (1804)  ;  Althause  v.  Huns- 
berger,  6  Pa.  Super.  Ct.   160   (1897).    So  also  where  plaintiff  is  misnamed. 


OAKLEY   V.    PEGLER  507 

O.  R.  OAKLEY  v.  G.  H.  PEGLER 

Supreme  Court  of  Nebraska,  1890 

30  Nehr.  628. 

Errar  to  the  District  Court  for  Lancaster  County. 

The  action  was  brought  on  a  judgment  recovered  in  the  state  of 
New  York  by  Pegler  against  O.  R.  Oakley.  The  answer  of  the  de- 
fendant averred  "that  his  true  name  is  Oscar  R.  Oakley  and  not 
O.  R.  Oakley,  as  set  forth  in  said  action,  petition  and  proceedings." 

On  the  trial  the  defendant  testified  as  follows  on  cross-examina- 
tion: 

O.  What  do  you  say  your  name  is  ? 

A.  Oscar  Rodman  Oakley  is  my  name. 

Q.  By  what  name  were  you  known  in  the  business  world  ? 

A.  Well,  a  business  man  often  uses  his  initials,  and  I  very  fre- 
quently do  that,  of  course. 

O.  Is  it  not  a  fact  you  use  your  initials  almost  entirely? 

A.  I  use  my  initials  in  signing  checks.  I  don't  know  as  I  do  en- 
tirely, btit  I  do  sometimes. 

Q.  Is  it  not  a  fact  that  3'our  business  signature  to  your  checks 
is  in  the  form  of  O.  R.  Oakley  ? 

A.  They  are. 

Q.  I  will  ask  you  if  it  is  not  a  fact  that  the  signature  you  leave 
at  bank,  prepared  for  that  purpose — the  bank  at  which  you  do  busi- 
ness— at  the  First  National  Bank,  is  not  O.  R.  Oakley? 

A.  Yes,  all  business  men  use  their  initials.-^ 

Maxwell,  J. :  The  principal  error  relied  upon  is  that  the  plain- 
tiff in  error  was  sued  by  the  initial  letters  of  his  Christian  name  and 
not' by  his  surname.  It  will  be  seen  from  his  own  testimony  that  his 
habit  has  been,  and  is  when  signing  checks,  doing  business  at  banks 
and  other  places,  to  use  the  initial  letters  of  his  Christian  name.  At 
common  law  a  declaration  describing  a  party  by  the  initial  of  his 
Christian  name  is  bad  on  special  demurrer  (Turner  v.  Fitt,  3  M.  G. 
&  S.  701 ;  Bliss  on  Code  Pleading,  section  146a)  r"  It  should  be  made 
to  appear,  however,  that  tlie  letter  used  is  but  an  initial  and  not  the 


McGaughey  v.  Woods,  106  Ind.  380,  7  N.  E.  7  (1885)  ;  and  see  VIner's  Abr. 
Misnomer;  Bacon's  Abr.  Misnomer.  As  to  judgments  by  default,  compare 
Parry  v.  JVoodson,  33  Mo.  347,  84  Am.  Dec.  51  (1863)  ;  Edwards  v.  Warner, 
III  111.  App.  32  (1903)  ;  McGaughev  v.  M'oods,  supra,  with  Cole  v.  Hindson, 
6  T.  R.  234  (1795);  Farnham  v.  Hildrclh,  32  Barb.  (N.  Y.)  277  (i860); 
Schoellkopfv.  Ohmeis,  ii  Misc.  253,  2>^  N.  Y.  S.  736  (1895). 

^*The  statement  of  facts  is  abridged  from  the  opinion  of  the  court.  The 
arguments  of  counsel  and  part  of  the  opinion  are  omitted. 

"Jones  V.  Macqidllin,  5  D.  &  E.  195  (1793)  ;  Nash  v.  Collier,  5  Dowl.  &  L. 
341  (1847)  ;  Miller  v.  Hay,  3  Wei.,  H.  &  G.  14  (1848)  ;  Wilson  v.  Shannon,  6 
Ark.  196  (1845)  ;  Knox  V.  Stark s,  4  Minn.  20  (i860)  ;  Elherson  v.  Richards, 
42  N.  J.  L.  69  (1880);  Begos  v.  Wellman,  82  Ala.  391,  2  So.  877  (1886); 
Monroe  Cattle  Co.  v.  Becker,  147  U.  S.  47,  37  L.  ed.  72  (1892). 


5oS  JUDGMENT 

true  name  (Trcv.-Jv  v.  Jari'is,  27  Conn.  42).  Whether  an  apparently 
initial  letter  will  be  treated  as  a  name  must  depentl  ujion  the  manner 
in  whieh  the  ciuestion  is  raised.-^ 

In  the  ahsenec  of  a  motion  to  the  contrary,  or  a  pleading  calling 
attention  to  the  fact  that  it  is  not  the  name  of  the  party,  the  court 
will  be  warranted  in  treating  it  as  his  name.  If  the  defendant  objects 
on  the  ground  of  misnomer,  he  must  give  his  true  name.  A  judgment 
against  a  i>arty  sued  by  the  initials  of  his  Christian  name  is  not  void. 
At  the  most  it  is  voidable  for  error  of  the  court  in  the  proceedings. 
Where,  before  judgment,  the  attention  of  the  trial  court  is  called  to 
the  fact  tliat  the  defendant  has  been  sued  by  the  initials  of  his  Chris- 
tian name,  the  court  may  permit  an  amendment  instantcr  by  insert- 
ing the  full  Christian  name.-*  If  no  objection  is  made  on  that  ground, 
tlie  defendant  will  be  concluded  by  the  judgment. 

In  the  case  at  bar  the  plaintiff  in  error  did  business  as  O.  R. 
Oakley,  and  although  his  Christian  name  is  Oscar  R.  Oakley,  the 
name  by  which  he  does  business  in  signing  checks  and  at  the  banks 
and  at  other  places  is  O.  R.  Oakley.  This  may  be  called  his  business 
name,  and  a  judgment  recovered  against  him  by  that  name  can  not 
be  attacked  collaterally.  There  is  no  error  in  the  record  and  the 
judgment  is  affirmed.-^ 

^Kinticrslcv  v.  Knott,  7  C.  B.  980  (1849)  ;  Stcver  v.  Brown,  119  Mich. 
196,  77  N.  W.  704  (1899)  ;  Gottlieb  v.  Alton  Grain  Co.,  87  App.  Div.  380,  84 
N.  Y.  S.  413  (1903")- 

'*DavcHport  V.  Kirkland,  156  111.  169,  40  N.  E.  304  (1895)  ;  Bnrdeshaw  v. 
Co-mcr,  108  Ala.  617,  18  So.  556  (1895);  Fay  v.  Stubenrauch,  141  Cal.  573, 
75  Pac.  174  (1904);  Jllnh^  rnhnrrp  Co.  V  Pn.<tJnx.^.fy,  3T  P^,  Siiper^  Ct.  6o2 
(1906). 

^Linch  V.  Hooke,  I  Salk.  7  (1705)  ;  Harrison  v.  Harrison,  19  Ala.  499 
(1851)  ;  Bridges  v.  Lavman,  31  Ind.  384  (1869)  ;  Jones'  Estate.  27  Pa.  St.  336 
(1856)  ;  Fezi'lass  v.  Abbott,  28  Mich.  270  (1873)  -rHicWv.  Riley,  83  Ga.  332, 
9  S.  E.  771  (1889)  ;  Perkins  v.  McDowell,  3  Wyo.  328,  23  Pac.  71  (1890)  ; 
Grant  v.  Birdsall,  2  N.  Y.  Civ.  Proc.  422,  48  N.  Y.  Super.  Ct.  427  (1882)  ; 
Hinkle  v.  Collins,  113  Mich.  105,  71  N.  W.  481  (1897)  ;  Vicborn  v.  Pollock, 
133  Mich.  524,  95  N.  W.  576  (1903).  Contra:  I'inccnt  V.  Means,  184  Mo.  327, 
82  S.  W.  96  (1904).  Where  a  defendant  is  known  as  well  by  one  name  as 
another  he  may  be  sued  by  either,  and  it  is  immaterial  by  which  name  he 
was  known  to  the  plaintiflF.  Y.  B.  44  Edw.  Ill,  16;  P.agleston  v.  Nathan  A.  Son, 
5  Rob.  (N.  Y.)  640  (1866)  ;  Clark  v.  Clark,  19  Kans.  522  (1878)  ;  Isaacs  v. 
Mints,  II  N.  Y.  S.  423,  33  N.  Y.  St.  423  (1890),  and  see  Linton  v.  First  Natl. 
Bk.,  10  Fed.  894  (1882)  ;  Rich  v.  Mayer,  7  N.  Y.  S.  69,  26  N.  Y.  St.  107 
(1889). 


KERBY   V.    JENKINS  '  509 

SECTION  2.  JUDGMENT  BY  CONFESSION 

KERBY  V.  JENKINS 

Court  of  Exchequer,  1832 
2   Tyrwhitt  499. 

A  rule  for  setting  aside  an  interlocutory  judgment  and  subse- 
quent proceedings,  for  irregularity,  was  obtained  on  the  defendant's 
affidavit,  that  on  twenty-fourth  January  he  signed  a  paper,  which 
was  the  cognovit-^  on  which  judgment  was  entered  up,  but  that  he 
was  never  served  with  any  process. 

Cause  was  shown  on  an  affidavit  that  the  defendant,  on  signing 
the  cognovit,  said  he  knew  what  a  cognovit  was,  having  signed  one 
before,  and  thanked  the  plaintiff's  attorney  for  the  indulgence ;  and 
that  process  was  sued  out  an  hour  before  the  cognovit  was  given. 

Per  Curiam  :  It  is  not  necessary  that  process  should  be  served 
before  a  cognovit  is  given.  It  is  sufficient  if  it  has  been  sued  out 

Rule  discharged  with  costs.^' 

*'See  Lilly's  Entries,  470;  Clift's  Entries,  421;  Chitty's  Forms  (1847), 
308 ;  Wentworth  on  Pleading,  10,  428 ;  Tidd's  Practice,  559 ;  4  Enc.  PI.  &  Pr. 
560.  At  common  law  where  the  defendant  had  no  defense  to  the  action,  in- 
stead of  proceeding  to  trial  or  allowing  judgment  to  be  taken  by  default,  he 
could  give  the  plaintiff  a  cognovit  actionem,  usually  called  a  cognovit,  or 
written  confession  of  the  action  authorizing  the  plaintiff  to  sign  judgment, 
frequently  on  condition  that  the  defendant  be  allowed  time  for  the  payment 
of  the  debt  or  damages,  the  amount  of  which  in  general  was  first  agreed  upon. 
If  given  after  plea  pleaded  it  usually  contained  an  agreement  to  withdraw 
the  plea,  in  which  case  it  was  termed  a  cognovit  actionem  relicta  verificatione. 
Chitty's  Practice,  844;  Richardson  v.  Jones,  12  Grat.  (Va.)  53  (1855).  By  con- 
fessing the  action  the  defendant  often  obtained  terms,  such  as  a  stay  of  exe- 
cution or,  in  an  action  for  unliquidated  damages  avoided  the  expense  of  a 
writ  of  inquiry'.  McClish  V.  Manning,  3  G.  Greene  (Iowa)  223  (1851)  ;  Keep 
V.  Leckie,  8  Rich.  L.  164  (S.  Car.)  (1855)  ;  Hirschfield  v._  Franklin,  6  Cal.  607 
(1856).  In  modern  English  practice  no  order  to  enter  judgment  by  consent 
will  be  made  where  the  defendant  has  not  appeared  or  has  appeared  in  per- 
son, imless  the  defendant  attends  before  a  judge  and  gives  his  consent  in 
person,  or  unless  his  written  consent  is  attested  by  a  solicitor,  except  where 
the  defendant  is  a  barrister  or  solicitor.  Rules  of  Supreme  Court,  order  xli, 
rule  10;  and  see  the  act  of  32-33  Vict.  (1869),  ch.  62,  §§  24-28. 

The  words  "they  can  not  deny"  are  sufficiently  explicit  to  authorize  the 
entry  of  judgment.  Lewis  v.  Barber,  21  111.  App.  638  (1886)  ;  Burton  v.  Law- 
rence, 4  Tex.  373  (1849). 

-'Accord:  IVebb  v.  Aspinwall,  7  Taunt.  700  (1817)  ;  Wade  v.  Swift,  8 
Price  513  (1820)  ;  Morley  v.  Hall,  2  Dowl.  494  (1834)  ;  Shanley  v.  Colwell, 
6  M.  &  W.  543  (1840)  ;  Commercial  Bank  v.  Brondgcest,  5  U.  C.  Q.  B.  .325 
(1847);  Laverty  v.  Patterson,  $  U.  C.  Q.  B.  641  (1848).  Contra:  Keep  v. 
Leckie,  8  Rich.  L.  (S.  Car.)  164  (1855),  and  see  Stein  v.  Good,  16  III.  App. 
516  (1885);  O'Dell  V.  Reynolds,  70  Fed.  656  (1895).  It  is  essential  to  the 
validity  of  a  judgment  confessed,  pending  suit,  that  the  defendant  be  served 
with  process  or  that  he  appear  in  person  or  by  attorney.  Richardson  v. 
Daly,  4  M.  &  W.  384  (1838)  ;  F errand  v.  McClease,  i  Ind.  87  (1848)  ;  Craig 
V.  Glass,  I  Ind.  89  (1848)  ;  Coonley  v.  Tracy,  4  Ind.  137  (1853)  ;  PhiladclphicL 
V.  Toll.  2  W.  N.  C.  (Pa.)  226  (1874)  ;  Stewart  w.  }V alters,  38  N.  J.  L.  274 
(1876).  The  judgment  must  be  entered  with  plaintiff's  assent.  Thayer  v. 
Finley,  36  111.  262  (1864)  ;  Mason  v.  Ward,  80  Vt.  290,  67  Atl.  820  (1907). 


5IO  JUDGMJiXT 

A.  IV  IWROUITAR  CO.,  Ll^rlT^.^.  v.  CHARLES  E.  DEHAVEN, 

1-:t  Al. 

Sltkkme  Court  of  ArrKAi.s  of  W'fst  Virginia,  191 2 
70  11 :  Va.  73S. 

Error  to  Circuit  Court,  Berkeley  County. 

Action  by  Arthur  B.  Farquhar  and  others,  partners  as  A.  B. 
Farquhar  Co.,  Limited,  a£]:ainst  Charles  E.  Dehaven  and  others. 
Judgment  for  plaintiffs,  and  defendants  brlnj^  crror.^^ 

Miller,  J. :  The  judgment  below  to  which  this  writ  of  error 
applies,  denied  the  motion  of  defendants  to  quash  the  execution  on 
a  judgment  in  favor  of  plaintiffs,  entered  against  them,  in  vacation, 
by  tlie  clerk  of  the  circuit  court  on  September  12,  1910. 

The  entire  record  of  the  judgment  as  presented  here  is  as 
follows : 

"This  day  came  the  defendants,  by  Martin  &  Seibert,  their  attor- 
neys in  fact,  and  say  that  they  can  not  gainsay  the  plaintiff's  action 
against  them,  but  that  they  are  justly  indebted  to  the  said  plaintiffs 
in  the  sum  of  $527.07  with  interest  thereon  from  this  date  and  the 
costs  of  this  action,  on  account  of  two  certain  notes,  one  dated 
August  30,  1909,  due  six  months  after  date,  and  the  other  dated 
August  30,  1909,  due  twelve  months  after  date. 

"It  is  therefore  considered  that  the  plaintiffs,  Arthur  B.  Far- 
quhar, W^m.  E.  Farquhar  and  Frances  Farquhar,  general  partners, 
trading  and  doing  business  as  A.  B.  Farquhar  Co.,  Limited,  do  re- 
cover of  and  from  the  said  defendants,  Charles  E.  Dehaven  and 
H.  L.  Dehaven,  the  sum  of  five  hundred  and  twenty-seven  dollars 
and  seven  cents  ($527.07),  with  interest  from  this  date  until  paid, 
and  their  costs  in  this  behalf  expended.  Teste :  L.  De  W.  Gerhart, 
Clerk  Circuit  Court  of  Berkeley  County,  West  Virginia. 

"Memo:  Said  notes  were  filed  with  the  said  clerk  upon  the  day 
of  the  entry  of  the  said  order,  and  are  in  the  words  and  figures 
following :" 

The  notes  referred  to,  of  which  one  is  copied  in  the  records,  are 
judgment  notes,  in  form  like  those  in  use  in  Pennsylvania,  bear- 
ing six  per  cent,  interest,  and  providing  for  a  ten  per  cent,  attorney's 
fee  in  addition  to  all  other  necessary  expenses  of  collection  after 
maturity.  They  also  contain  waiver  of  presentment  and  protest, 
homestead  and  exemption  rights  real  and  personal,  and  other  rights, 
and  also  the  following  material  provision:  "And  we  do  hereby  em- 
power and  authorize  the  said  A.  B.  Farquhar  Co.,  Limited,  or  agent, 
or  any  prothonotary  or  attorney  of  any  court  of  record  to  appear 
for  us  and  in  our  name  to  confess  judgment  against  us  and  in  favor 
of  said  A.  B.  Farquhar  Co.,  Limited,  for  the  above  named  sum  with 
the  costs  of  suit  and  release  of  all  errors  and  without  stay  of  execu- 
tion after  the  maturity  of  this  note." 


^Part  of  the  opinion  of  the  court  and  the  dissenting  opinion  of  Robin- 
son, ].,  are  omitted. 


A.   B.   FARQUHAR  CO.,  LTD.,   V.  DEHAVEN  5H 

The  motion  to  quash  assigned  as  the  only  ground  therefor  that 
the  judgment  is  void,  the  clerk  being  without  authority  to  enter  the 
same  upon  a  judgment  note,  as  was  done,  without  suit  and  service 
of  process. 

As  both  sides  agree  the  question  presented  is  one  of  first  impres- 
sion in  this  state.  We  have  no  statute,  as  has  Pennsylvania  and 
many  other  states,  regulating  the  subject.  In  the  decision  we  are 
called  upon  to  render,  we  must  have  recourse  to  the  rules  and  prin- 
ciples of  the  common  law,  in  force  here,  and  to  our  statute  law, 
applicable,  and  to  such  judicial  decisions  and  practices  in  Virginia, 
in  force  at  the  time  of  the  separation,  as  are  properly  binding  on  us. 
It  is  pertinent  to  remark  in  this  connection,  that  after  nearly  fifty 
years  of  judicial  history  in  this  state  no  case  has  been  brought  here 
involving  this  question,  strong  evidence,  we  think,  that  such  notes, 
if  at  all,  have  never  been  in  very  general  use  in  this  commonwealth. 
And  in  most  states  where  they  are  current  the  use  of  tliem  has  grown 
up  under  statutes  authorizing  them,  and  regulating  tlie  practice  of 
employing  them  in  commercial  transactions.     .     .     . 

The  case  we  have  here,  on  the  motion  to  quash,  is  one  of  collat- 
eral attack,  and  to  sustain  the  motion  and  reverse  the  judgment 
below,  we  must  hold  the  judgment  void  upon  its  face.  Is  it  so  void? 
As  already  indicated,  the  question  must  be  answered  practically  upon 
the  common  law  rules  and  principles.  We  have  no  statute  in  any 
way  governing  tlie  subject,  except  section  43,  chapter  125,  of  the 
Code,  providing  for  a  confession  by  the  defendant  in  vacation  in  the 
clerk's  office.  What  then  is  the  common  law  applicable  to  the  case  ? 

In  I  Black  on  Judgments,  section  50,  it  is  said :  "All  judgments 
rendered  upon  the  confession  of  the  defendant  may  be  divided  into 
two  classes:  i.  Those  entered  in  an  action  regularly  commenced  by 
the  issuance  and  service  of  process.  2.  Those  entered  upon  the  con- 
fession of  the  defendant,  or  his  warrant  of  attorney,  without  tlie 
institution  of  an  action.  The  former  class  of  judgments  are  well 
known  to  the  common  law  and  must  be  tested  and  sustained  by  rules 
and  principles  existing  independently  of  statute,  while  judgments 
of  the  latter  class  derive  all  their  efiicacy  from  positive  law  and  must 
conform,  in  order  to  be  valid,  to  all  the  requirements  and  formalities 
set  up  by  the  legislature."  In  the  same  section  this  writer  further 
says :  "Now  judgments  entered  for  the  plaintiff  upon  the  defend- 
ant's admission  of  the  facts  and  law,  as  the  same  are  known  to  the 
common  law  and  exist  independently  of  statutes,  are  of  two  varie- 
ties :  First,  judgment  by  cognovit  actionem,  and  second,  by  confes- 
sion rel'icta  verificatione.  In  the  former  case  the  defendant,  after 
service,  instead  of  entering  a  plea,  acknowledges  and  confesses  that 
the  plaintiff's  cause  of  action  is  just  and  rightful.  In  the  latter  case, 
after  pleading  and  before  trial,  tlie  defendant  both  confesses  the 
plaintiff's  cause  of  action  and  withdraws  or  abandons  his  plea  or 
other  allegations,  whereupon  judgment  is  entered  against  him  with- 
out proceeding  to  trial.  In  order  to  sustain  a  judgment  of  either  of 
these  sorts,  it  is  essential  that  orocess,  regularly  issued,  should  have 
been  served  upon  the  defendant  (though  he  may  accept  service  with 
the  same  effect  as  if  the  writ  had  been  served  as  it  usually  is)  ;  and 


3  1  J  JUDGMENT 

an  njrrccmcnt  in  writing  made  out  of  court,  authorizing  tlie  clerk  to 
enter  up  such  a  judgment,  -ill  not  sustain  it,  where  there  has  been 
no  appearance  l)y  the  defendant."  Blackstone  says,  on  the  subject  of 
confession  of  judgment  at  common  law:  "And  this  happens,  in 
the  first  place,  where  the  defendant  suft'crs  judgment  to  go  against 
him  by  default,  or  viliil  dicil:  as  if  he  puts  in  no  plea  at  all  to  the 
plaintiiT's  declaration;  by  confession  or  cognovit  actionem,  where  he 
acknowledges  the  plaintiff's  demand  to  be  just;  or  by  nan  sum  in- 
■formatiis,  when  the  defendant's  attorney  declares  he  has  no  instruc- 
tion to  say  anything  in  answer  to  tlie  plaintiff,  in  defense  of  his  client; 
which  is  a  species  of  judgment  by  default.  If  these,  or  any  of  them, 
happen  in  actions  where  the  s]>eciric  thing  sued  for  is  recovered,  as  in 
actions  of  debt  for  a  sum  certain,  the  judgment  is  absolutely  com- 
plete. And  therefore  it  is  very  usual,  in  order  to  strengthen  a  credit ^ 
or's  security,  for  tlie  debtor  to  execute  a  warrant  of  attorney  to  some 
attorney  named  by  the  creditor,  empowering  him  to  confess  a  judg- 
ment by  either  of  the  ways  just  now  mentioned  (by  nihil  dicit,  cog- 
novit actionem,  or  non  sum  informatus)  in  an  action  of  debt  to  be 
brought  by  tlie  creditor  against  the  debtor  for  the  specific  sum  due; 
which  judgment  when  confessed,  is  absolute,  complete  and  bind- 
ing. .  .  ."3  Blackstone,  Com.  396,  397.  The  great  Virginia  com- 
mentator, ]\Ir.  ]\linor,  says  on  this  subject  (IV  Minor's  Inst.  726)  : 
"The  defendant  was  always  allowed  to  acknowledge  tlie  plaintiff's 
action,  and  confess  a  judgment  for  the  amount  claimed,  or  for  such 
part  tliereof  as  he  and  the  plaintiff  could  agree  upon,  provided  it  was 
done  in  open  court.  But  a  confession  of  judgment  in  the  clerk's 
office  was  never  contemplated  by  the  common  law,  and  can  only  take 
place  in  pursuance  of  the  authority  of  some  statute." 

So  according  to  these  authorities  the  warrant  of  attorney,  in 
use  at  common  law,  was  confined  to  the  confession  of  judgments, 
in  the  three  ways  enumerated  by  Blackstone,  in  a  pending  suit ;  that 
is  by  answering  niJiil  dicit,  cognovit  actionem,  or  non  sum  in- 
formatus. And  as  Mr.  Black  says,  judgments  by  confession  of  de- 
fendant or  on  his  warrant  of  attorney,  without  the  institution  of  an 
action,  derive  all  their  efficacy  from  positive  or  statute  law.  And 
judgment  in  the  clerk's  office,  as  Mr.  Minor  says,  was  never  con- 
templated at  the  common  law.  Such  warrant  of  attorney  was  usually 
given  by  the  defendant  to  the  plaintiff,  by  way  of  security,  on  com- 
promising an  action ;  and  it  authorized  the  attorney  to  whom  it  was 
directed  to  appear  for  the  defendant,  and  to  receive  a  declaration 
in  an  action  to  be  brought  against  him,  and  thereupon  confess  the 
same  in  the  manner  already  indicated.  Tidd's  New  Prac.  (Ed.  1837) 
275;  I  Tidd's  Pract.  (Ed.  1828)  pp.  590,  606;  2  Chitty,  Gen.  Pract. 

In  the  case  at  bar,  counsel  for  defendants  in  error  say,  they  rely 
upon  the  fact  that  there  is  nothing  in  the  record  showing  afiirma- 
tively  that  process  was  not  served.  The  record,  however,  purports 
to  be  a  complete  transcript  of  all  the  proceedings  which  took  place 
in  the  clerk's  office  in  vacation,  not  at  rules;  and  as  no  process  is 
exhibited  or  referred  to,  we  think  we  must  necessarily  say  that  no 
suit  was  begun  by  process,  and  that  there  was  no  action  pending  in 


A.    B.    FARQUHAR  CO.,   LTD.,   V.   DEHAVEN  513 

which  at  common  law,  a  judgment  on  a  warrant  of  attorney  could 
have  been  confessed,  in  either  of  the  ways  authorized  by  the  ancient 
practice.  Mr.  Freeman  says,  2  Freeman  on  Judgments,  section  547 : 
"Judgments  by  confession  are  in  no  wise  exempt  from  the  rule 
applicable  to  other  judgments,  that  to  be  valid  they  must  be  entered 
in  a  court  having  jurisdiction  over  the  subject-matter  of  the  action 
and  the  parties  thereto.  'Though  no  adjudication  is  in  fact  required 
in  entering  a  judgment  of  confession  without  action,  yet  it  has  all  the 
qualities,  incidents  and  attributes  of  other  judgments,  and  can  not 
be  valid  unless  entered  into  a  court  which  might  have  lawfully  pro- 
nounced the  same  judgment  in  a  contested  action.'  Where  the  law 
requires  judgments  to  be  signed  by  the  judge,  its  provision  extends 
to  judgments  by  confession,  and  renders  them  void  if  not  so  signed." 
Looking  to  the  literal  terms  of  the  power  we  see  it  authorizes  ap- 
pearance, but  gives  no  specific  authority  to  waive  process,  or  to 
appear  in  the  clerk's  office,  or  waive  the  filing  of  the  declaration ; 
and  limited  by  the  rules  and  practices  prevailing  at  common  law, 
we  must  say  no  donee  of  the  power  had  any  authority  to  waive  any 
of  the  rights  of  the  plaintiff,  to  be  sued  and  served  with  process, 
and  to  have  a  declaration  filed  on  which  judgment  might  lawfully 
be  entered.  Without  jurisdiction  thus  acquired  a  judgment  at  com- 
mon law  on  warrant  of  attorney  would  have  been  void.  And  even 
in  those  states,  where  it  is  otherwise  provided  by  statute,  the  statute 
being  in  derogation  of  common  law  rights,  the  statutes  are  strictly 
construed.^^  23  Cyc.  699. 

Letus  see  how  this  question  has  been  viewed  in  the  other  states 
than  Virginia.  In  Vermont,  the  Supreme  Court  says :  Judgments  on 
confession  without  antecedent  process  have  no  basis  other  than 
the_  statute,  and  a  full  compliance  with  the  statute  is  necessary  to 
their  validity,  and  the  provisions  authorizing  them  are  to  be  strictly 
construed."^  Mason  v.  Ward,  80  Vt.  290.  In  Iowa  in  response  to 
the  contention  that  the  statute  there,  regulating  the  confession  of 
judgment,  was  merely  cumulative  of  the  common  law  remedy,  the 
court  said :  "We  do  not  think  this  position  is  correct.  ...  So 
far  as  we  are  advised  it  has  never  been  the  understanding  of  the 
profession  nor  of  the  business  community  in  this  state  that  warrants 
of  attorney  to  confess  judgment  had  any  place  in  our  law.  A  confes- 
sion of  judgment  pertains  to  the  remedy.  A  party  seeking  to  enforce 
here  a  contract  made  in  another  state  must  do  so  in  accordance  with 
the  laws  of  this  state.  Parties  can  not  by  contract  made  in  another 
state  engraft  upon  our  procedure  here  remedies  which  our  laws  do 
not  contemplate  nor  authorize."  Hamilton  v.  Schoenherger,  47  Iowa 
385.  In  New  Jersey  the  entry  of  a  judgment  by  a  justice  on  a  judg- 
ment note  without  process  or  proof  was  declared  illegal.  The  court 
said  "The  defendant  must  be  brought  into  court  in  the  usual  way, 
and  the  same  proceeding  had,  as  in  other  cases  of  written  contracts/' 


■''Manufactitrcrs'  Bank  v.  Si.  John,  5  Hill  (N.  Y.)  407  (1843);  Edgar  v. 
Greer,  7  Iowa  136  (1858)  ;  Chapin  v.  Thompson,  20  Cal.  681  (1862)  ;  Henry  v. 
Estes,   127  Mass.   474    (1879);   Kahn  v.   Lesser,  97  Wis.   217,   72   N.   W.   739 
(1897).    Compare  Saunders  v.  Lipscomb,  90  Va.  647,  19  S.  E.  450  (1894). 
ZZ — Civ.  Proc. 


51-1-  Jl'DCMF.N'T 

Stretch  V.  Hancock.  2  N.  J.  L.  193.="'  In  Tennessee,  in  Carlin  v. 
Taylor,  75  Tcnn.  666,  the  Supreme  Court  held,  that  no  judgment 
could  be  confessed  in  that  state  l)y  an  attorney,  on  a  judgment  note 
Uke  the  one  involved  here.  And  in  Kansas  and  Missouri,  such  notes 
are  condcnuictl.  and  the  practice  of  employincf  tlicm  rcjmdiatcd  on 
]irinciples  of  public  policy,  and  as  j::iving  to  the  defendant  no  day  in 
court,  and  as  permittinji^  the  defendant  to  bargain  away  his  right  to 
be  heard  in  court,  contrary  to  }niblic  policy.  McCrairy  v.  Ware, 
6  Kans.  App.  155;  First  Nat.  Dank  v.  White,  220  Mo.  717.  We  are 
inclined  to  agree  with  the  IMissouri  court  in  the  case  last  cited,  in 
which  they  say:  "Such  agreements  are  iniquitous  to  the  uttermost 
and  should  be  promptly  condemned  by  the  courts,  until  such  time  as 
they  may  receive  express  statutory  recognition,  as  tliey  have  in  some 
states."^! 

Of  course  if  a  debtor  has  been  summoned  into  court  by  process, 
and  given  a  day  and  an  opportunity  to  be  heard,  no  good  reason 
could  be  assigned  why  judgment  should  not  be  pronounced  against 
him  at  common  law  by  confession  on  a  warrant  of  an  attorney. 
The  fact  that  the  Virginia  court  and  this  court  have  recognized  the 
right  of  tlie  defendant  by  personal  appearance,  to  submit  himself 
without  process  to  the  jurisdiction  of  the  court,  and  to  confess  a 
valid  judgment  against  him,  and  that  a  proper  construction  of  our 
statute,  section  43,  chapter  125  of  the  Code,  might  authorize  a  de- 
fendant to  appear  in  person  in  the  clerk's  office  and  make  like  con- 
fession of  judgment,  we  do  not  regard  any  justification  for  the 
proposition,  that  he  may  by  warrant  of  attorney  authorize  appear- 
ance by  and  confession  of  judgment,  either  in  court  or  in  the  clerk's 
office,  without  process  directed  and  regularly  served  upon  him.  It 
is  contended,  however,  that  the  old  legal  maxim,  qui  facit  per  alium, 
facit  per  se,  is  as  applicable  here  as  in  other  cases.  We  do  not  think 
so.  Strong  reason  exists  as  we  have  shown,  for  denying  its  applica- 
tion, when  holders  of  contracts  of  this  character  seek  the  aid  of  the 
court  and  of  their  execution  process  to  enforce  them,  defendant 
having  no  day  in  court  or  opportunity  to  be  heard.  We  need  not 
say  in  this  case  that  a  debtor  may  not  by  proper  power  of  attorney 
duly  executed,  authorize  another  to  appear  in  court  and  by  proper 
endorsement  upon  the  writ  waive  service  of  process,  and  confess 
judgment.  But  we  do  not  wish  to  be  understood  as  approving  or 
intending  to  countenance  the  practice  of  employing  in  this  state  com- 
mercial paper  of  the  character  here  involved.  Such  paper  has  here- 
tofore had  little  if  any  currency  here.  If  the  practice  is  adopted 
into  this  state  it  ought  to  be,  w^e  think,  by  act  of  legislature,  with 
all  proper  safeguards  thrown  around  it,  to  prevent  fraud  and  impo- 
sition.  The  policy  of  our  law  is,  that  no  man  shall  suffer  judgment 

"But  see,  now,  Comp.  Stat.  New  Jersey  (1910),  vol.  I,  p.  219,  title 
"Bonds  and  Warrants";  Shelmerdine  v.  Lippincott,  69  N.  J.  L.  82,  54  Atl. 

237  (1903)-  .        ^     , 

*^rirst  Nat.  Bank  v.  White,  220  Mo.  717,  120  S.  W.  36,  132  Am.  St.  612 
C1909).  See  also  Jemison  v.  Freed,  161  Ala.  598,  50  So.  52  C1909) ;  Kans.  Gen. 
Stat.  (1909),  §  5996;  Mo.  Rev.  Stat.  (1909)  ;  §§  21 13-21 16.  The  practice  of 
entering  judgment  by  warrant  of  attorney  rests  on  the  statutes  and  rules  of 
court  ©f  the  various  jurisdictions.    See,  generally,  5  Encyclopaedia  of  Forms,  107. 


WHITNEY   V.    HOPKINS  515 

at  the  hands  of  our  courts  without  proper  process  and  a  day  to  be 
heard.  To  give  currency  to  such  paper  by  judicial  pronouncement 
would  be  to  open  the  door  to  fraud  and  imposition,  and  to  subject 
the  people  to  wrongs  and  injuries  not  heretofore  contemplated.  This 
we  are  imwilling  to  do. 

These  considerations  lead  us  to  conclude  that  a  judgment  by 
confession  in  the  clerk's  office,  on  warrant  of  attorney,  without  pro- 
cess regularly  issued  and  served  upon  or  accepted  by  defendant  is 
void  on  its  face.  We  therefore  reverse  the  judgment  below,  quash 
the  execution  and  award  the  defendant's  costs  here  and  in  the  court 
below,  incurred  on  said  action.^^ 

Robinson,  J.,  and  Brannon,  J.,  dissent. 


F.  M.  WHITNEY  v.  JAMES  HOPKINS 
Supreme  Court  of  Pennsylvania,  i8qo^ 
13s  Pa.  St.  246 

Appeal  by  the  defendant  from  the  action  of  tlie  Court  of  Com- 
mon Pleas  of  Susqueha«nna  County  in  discharging  a  rule  to  set  aside 
a  judgment  in  favor  of  the  plaintiff  against  the  defendant  for 
$4,765.55,  with  interest,  entered  by  the  prothonotary  upon  the  filing 
of  articles  of  agreement  referred  to  in  the  opinion  of  the  court.^^ 

Williams,  J. :  The  learned  counsel  for  the  appellant  is  right  in 
the  general  proposition  on  which  he  rests  his  appeal.  The  prothono- 
tary of  the  court  of  common  pleas  is  merely  the  clerk  of  the  court. 
He  has  no  authority,  virtiife  officii,  to  act  as  the  clerk,  agent,  or 
attorney  of  any  person.  It  is  his  duty  to  record  upon  the  minutes 
of  the  court  all  judgments  rendered  by  or  confessed  before  the  court 
whose  clerk  he  is.  If  he  is  not  personally  present,  the  court  may 
direct  any  competent  bystander  to  make  the  entries  upon  the  record ; 
for  the  legal  effect  of  such  entries  does  not  depend  upon  the  person 
by  whom  they  may  be  copied  or  recorded,  but  upon  the  jurisdiction 
of  the  court  whose  acts  they  are.  It  is  also  the  duty  of  the  prothono- 
tary to  enter,  by  himself  or  his  clerks,  on  the  records  of  the  court, 
any  amicable  action  entered  into  in  writing,  and  filed  in  his  office, 
when  the  court  is  not  in  session.   He  may  also  note  the  confession 


'"Accord:  IVilhelm  v.  Locklar,  46  Fla.  575,  35  So.  6  (1903).  Compare 
Jones  V.  Bradshaw,  16  Grat.  (Va.)  3S5  (1863).  And  see  Aultman  Taylor  Co. 
V.  Mead,  109  Ky.  583,  60  S.  W.  294  (1901)  ;  Teel  v.  Yost,  128  N.  Y.  387,  28  N. 
I^-  353.  13  L.  R.  A.  796  (1891)  ;  Flanagan  v.  Bruner,  10  Tex.  257  (1853)  ;  Rose- 
hrotigh  V.  Ansley,  35  Ohio  St.  107  (1878)  ;  Stein  v.  Brunncr,  42  La.  Ann.  772, 
7  So.  718  (1890)  ;  Saunders  V.  Lipscomb,  90  Va.  647,  19  S.  E.  450  (1894)  ; 
Hazel  V.  Jacobs,  78  N.  J.  L.  459,  75  Atl.  903,  27  L.  R.  A.  (N.  S.)  1066  (1910)  ; 
Acme  Food  Co.  v.  Kirsch,  166  Mich.  433,  131  N.  W.  1123,  38  L.  R.  A.  (N.  S.) 
8i4n  (191 1);  Jarrett  v.  Sippley,  IS7  S.  W.  975,  175  Mo.  App.  197  (1913)  ; 
/rose  V.  Balla,  181  Ind.  491,  104  N.  E.  851  (1914);  Hutson  v.  Wood,  263 
111.  376,.  105  N.  E.  343  (1914).. 

*'The  statement  of  facts  is  abridged  and  the  opinion  o£  the  court  below 
and  arguments  of  counsel  are  omitted. 


5l6  JUDGMKXT 

of  jiulgincnt  in  such  action  by  tlic  defendant."*  This  he  does  simply 
as  the  clerk  and  keeper  of  tlie  records  of  the  court  in  which  the 
parties  aji^rce  that  their  action  shall  be  entered.  Cook  v.  Gilbert,  8 
S.  &  R.  5O7.  He  has  no  authority  in  the  ])remises,  and  no  duty  to 
dischari::e  except  to  put  faithfully  into  records  of  the  court  what 
the  i^arties  have  agreed  shall  go  there.  As  an  individual,  he  may 
be  autliorized  to  act  for  another  in  the  same  manner  that  any  other 
person  may  be ;  and,  when  so  authorized,  his  powers  are  derived 
from  the  instrument  under  which  he  acts,  and  not  from  his  office. 
His  commission  as  prothonotary  gives  him  no  right  to  act  as  attor- 
ney in  fact  or  at  law  for  suitors  or  others,  and  imposes  no  duties 
except  such  as  grow  out  of  his  relations  to  the  court  as  its  clerk. 
To  justify  him  in  acting  for  suitors,  an  express  authority  must  be 
shown,  coming  either  from  the  person  affected  by  his  acts,  or  from 
an  act  of  the  general  assembly.  By  the  act  of  February  24,  1806, 
it  was  made  tlie  duty  of  the  prothonotary  of  any  court  of  record 
within  the  commonwealth,  on  the  application  of  the  holder,  to  enter 
judgment  on  any  note,  bond  or  other  instrument  of  writing  in  which 
judgment  is  confessed  by  the  maker,  or  which  contains  a  warrant 
of  attorney  for  an  attorney  at  law  or  other  person  to  appear  and 
confess  judgment  tliereon.  The  act  directs  that  the  judgment  be 
entered  against  the  person  or  persons  who  executed  the  instrument, 
and  for  the  amount  which,  from  the  face  of  the  instrument,  may 
appear  to  be  due  thereon.  If  the  amount  due  can  not  be  ascertained 
from  the  face  of  the  instrument,  the  prothonotary  can  not  enter 
judgment  upon  it,  for  the  act  of  1806  gives  him  no  power  to  inquire 
beyond.    Connay  v.  Hahtead,  73  Pa.  354-^^ 

The  instrument  on  which  the  judgment  in  this  case  was  entered 
is  a  contract  bearing  date  the  ninth  of  April,  1884,  by  which  the 
plaintitif  sold  to  the  defendant  a  farm  for  $4,500.  This  amount  was 
to  be  paid  in  yearly  installments,  with  interest  annually  on  the  whole 
sum  unpaid.  The  contract  contained  a  confession  of  judgment  in 
these  words :  "The  said  party  of  the  second  part,  in  case  default  be 
made  for  the  space  of  three  months  in  all  or  any  of  the  above  pay- 
ments, does  hereby  confess  judgment  to  the  said  party  of  the  first 
part,  his  heirs  or  assigns,  for  the  whole  amount  unpaid  on  the  above  .. 
agreement."  On  the  back  of  the  contract  were  the  following  in-  ; 
dorsements:  "April  i,  1885,  paid  $275;  April  i,  1886,  paid  $520; 
April  2,  1888,  $305."  There  was  no  indorsement  for  either  1887  or 
1889,  and  neither  that  for  1886,  nor  that  for  1888,  was  for  the  whole 
amount  of  the  payment  then  falling  due.  The  judgment  was  entered 
on  the  first  day  of  June,  1889. 

When  this  contract  was  presented  to  the  prothonotary  two  ques- 

I"See  the  acts  of  March  21,  1806,  4  Sm.  L.  326,  §  8,  and  June  13,  i836,'\ 
P  L  ^68,  §  40;  P.  &  L.  Dip.  (2d  ed.)  5870-71;  10  P.  &  L.  Dig.  of  Decisions/ 
15853  r  Cart£i  V.  /f//>'M._l£LPhi]a.  46ijj888). 

"In  Q^utnay-y^lakteadj/i^e  agreement  was  for  the  sale  of  a  tract  ot 
land  at  ten  dollars  an  acre,  the  number  of  acres  -to  be  ascertained  by  a  survey. 
Held,  tliat  until  the  number  of  acres  should  be  determined,  a  matter  wholly 
outside  of  the  paper,  the  amount  of  the  purchase  money  could  not  be  know-^n 
and  the  prothonotary  had  no  Ruide  in  entering  judpment.  See  also  Latrqbe 
Bldg.,  &c.,  Assn.  v.  Fritz,  152  Pa.  St.  224,  25  Atl.  558  (1893). 


WHITNEY   r.    HOPKINS  51/ 

tions  were  suggested  for  his  consideration.  The  first  grew  out  of 
the  terms  of  the  confession.  Had  the  maker  made  default  in  any 
payment  for  the  space  of  three  months  ?  The  second  arose  from  the 
words  of  the  act  of  1806.  Could  the  amount  due  be  ascertained 
from  the  face  of  the  instrument?  If  both  questions  could  be  an- 
swered affirmatively,  the  judgment  could  be  entered.  If  either  could 
not  be  so  answered,  the  prothonotary  had  no  power  in  the  premises. 
The  possession  of  an  instrument  in  writing  for  the  payment  of 
money  affords  proof,  prima  facie,  of  a  right  in  the  holder  to  recover 
upon  it  according  to  its  terms.  The  holder  is  not  required  to  prove 
that  it  has  not  been  paid.  His  case  is  made  by  the  production  of 
the  instrument  in  the  first  instance,  and  the  burden  of  showing  pay- 
ment is  on  him  who  alleges  it.  Whether  the  instrument  be  a  note, 
a  bond,  or  a  contract,  like  that  on  which  this  judgment  was  entered, 
the  rules  of  evidence  are  the  same.  The  instrument  makes  for  the 
holder  a  case,  prima  facie,  on  which  he  could  recover  before  a 
jury,  or  have  a  judgment  entered  by  virtue  of  the  power  of  attorney. 
Both  the  default  and  the  amount  due  were  ascertainable  in  the  first 
instance  from  the  face  of  the  instrument.  If  payments  had  been 
made  that  did  not  appear  on  the  paper,  so  that  there  was  in  fact 
no  default,  the  court  would  on  application  hear  the  defendant's 
proofs,  and  strike  off  the  judgment;  but,  until  the  prima  fades  of 
the  instrument  is  overcome  by  proof,  the  judgment  must  stand.  The 
trouble  with  the  appellant's  case  is  that  the  general  rule  which  he 
invokes  is  not  applicable  upon  the  facts  of  this  case.  The  instrument 
was  within  the  act  of  1806,  and  upon  its  face  it  was  practicable  for 
the  prothonotary  to  determine  the  existence  of  a  default,  and  the 
amount  due  to  the  holder.  The  judgment  was  rightly  entered,  and 
the  rule  to  strike  it  off  was  rightly  refused.^^ 
The  judgment  is  therefore  affirmed. 

'"The  prothonotary's  power  does  not  extend  beyond  entering  judgment 
in  those  cases  where  the  instrument  fixes  an  amount  or  sum  certain  or  the 
amount  can  be  ascertained  upon  the  face  of  the  instrument.  Compare  Helvcte 
iv.  Riipp,  7  Serg.  &  R.  (Pa.)  306  (1821)  ;  James  v.  Crownover,  3  Sad.  (Pa.) 
hz,  6  Atl.  42  (1886);  Miller  v.  Flint  Glass  Works,  172  Pa.  St.  70  (1895); 
\First  Natl.  Bank  v.  Bartlett,  35  Pa.  Super.  Ct.  593  (1908),  with  Rate 
fv.  Heslip,  4  Pa  St.  139  (1846);  Weaver  v.  McDevitt,  21  Pa.  Super.  Ct. 
597  (1902);  Stranhurg  v.  Manross,  19  Pa.  D.  R.  849  (1910)  ;  Toledo 
[Computing  Scale  Co.  v.  Manfred,  20  Pa.  Dist.  R.  69  (1910)  ;  Purvis  v^ 
KOempsey,  238  Pa.  173,  85  Atl.  1091  (1913)-  On  a  penal  bond  judgment  shouM 
be  entered  for  the  amount  of  the  penahy.  Waldo  v.  Fobes,  i  Mass.  10  (1804)  ; 
Den  v.  Znllcrs,  7  N.  J.  L.  153  (1824)  ;  Suburban  Bldg.  &  L.  Assn.  v.  Paulus, 
80  Mo.  App.  36  (1899)  ;  Kcech  v.  O'Herron.  Al  Pa.  SupenJTt.  Tf^  (lonn;^  ; 
KcatinoJ^.  .FjLddrick,  24o"Par59n,  88  Atl  n  (1913).  Compare  Disoway  v. 
Edwards,  134  N.  Car.  254,  46  S.  E.  501  (1904). 

Judgment  can  not  be  entered  for  a  sum  in  excess  of  the  amount  limited 
by  the  warrant.  Tucker  v.  Gill,  61  111.  236  (1871)  ;  Sloane  v.  Anderson,  57 
Wis.  123,  iz  N.  W.  684,  15  N.  W.  21  (1883);  Mutual  Guarantee  Buildinn. 
&c..  Assn.  V.  Fallen.  21  Pa.  C.  C.  617  ritoS')  ;  tortune  v.  Bartolomei,  l64"Tll. 
51,  45  N.  E.  274  (1896).  A  warrant  of  attorney  may  confer  authority  to  con- 
fess judgment  before  the  debt  becomes  due.  Roundy  v.  Hunt,  24  III.  598 
(i860)  ;  Farwell  v.  Huston,  151  111.  239,  37  N.  E.  864,  42  Am.  St.  237  (1894)  ; 
hfrgnty  T,  T,  Co.  v.  Ran,  1.53  Ph  /|88,  26Atl.  220  (1893)  ;  Allport  v.  Meutsch. 
166  111.  App.  172  (1911).  Contra:  Warwick  v.  Petty,  44  N.  J.  L.  542  (1882)  ; 
Spier  V.  Corll,  33  Ohio  St.  236  (1877),  and  see  Reeves  v.  Kroll  133  Wis.  196. 
113  N.  W.  440  (1907). 


\ 
X 


5lS  JUDGMENT 

JOHN  GUYER'S  ADMINISTRATOR  r.   WILLIAM  GUYER 

Superior  Court  ok  Dklawaki:,  i88i 

6  Housl.  (Pil.)  430 

Judgment  No.  386,  May  Term,  18S0,  of  this  court  at  the  suit 
of  Joint  Giiycr  v.  W'iUiam  G.  Guycr,  had  upon  a  rule  laid  for 
the  purpose  at  the  following  November  term,  been  stricken  from  the 
record  l)y  order  of  the  court  on  the  proof  made  under  the  rule,  and 
afterwards  at  tliat  term,  November  2y,  1880,  judgment  was  again 
entered  at  the  suit  of  the  administrator  of  John  Guyer,  deceased, 
against  \\''illiam  G.  Guyer,  on  the  same  judgment-bond,  and  by 
virtue  of  the  same  warrant  of  attorney  appended  to  it;  and  now,  at 
this  term,  Whitely,  for  the  defendant,  had  obtained  a  rule  upon  the 
plaintiff  to  show  cause  wherefore  the  latter  judgment  should  not 
be  set  aside. 

Vandegrift  (Bradford  with  him)  now  showed  cause.  The  first 
judgment  referred  to,  and  which  was  set  aside  by  the  order  of  the 
court,  was  an  absolute  nullity.  The  warrant  of  attorney  on  which  it 
was  irregularly  and  improperly  entered  was  to  confess  judgment  at 
the  suit  of  John  Guyer,  his  executors,  administrators,  etc.,  in  the 
usual  form,  and  which,  of  course,  imported  at  the  suit  of  John 
Guyer  in  his  lifetime  or  at  the  suit  of  his  executor  or  administrator 
after  his  death ;  but  it  was  proved  on  the  hearing  of  the  rule  to  set 
aside  the  judgment,  and  upon  which  it  was  set  aside  by  tlie  court, 
that  it  was  not  entered  imtil  two  years  after  the  death  of  John 
Guyer,  and  was,  even  as  late  as  that,  entered  in  his  own  name  as  a 
living  party  to  the  judgment,  not  only  several  terms  after  his  death, 
but  two  weeks  before  any  administration  had  been  granted  on  his 
estate.  All,  therefore,  that  had  been  done  in  the  matter  of  enter- 
ing the  judgment,  up  to  that  time,  by  any  one,  as  the  agent,  friend 
or  representative  of  the  deceased  obligee  in  the  bond  and  warrant  of 
attorney  was  wholly  without  authority  in  law,  and  was  also  without 
any  effect  or  operation  whatever  in  law,  and  the  judgment  after- 
wards properly  and  correctly  entered  upon  the  same  bond  and  war- 
rant of  attorney,  in  the  name  of  his  duly  appointed  administrator,  is 
regular,  lawful  and  valid.  3  Wash.  558;  7  Bingh.  337;  8  T.  R.  ; 
4  Taunt.  884;  I  Sug.  371 ;  2  Sug.  238;  i  Houst.  516;  4  Harr.  280, 
527;  3  Harr.  241,  264,  519.  The  error  and  irregularity  in  the  enter- 
ing of  the  first  judgment  could  not  possibly  have  been  amended  by 
the  court."'' 


''A  warrant  of  attorney  to  confess  judgment,  if  coupled  with  an  interest, 
is  not  revocable  at  the  will  of  the  debtor.  Odes  v.  Woodward,  2  Ld.  Raym. 
766,  849  (1702)  ;  Odes  v.  Woodward,  i  Salk.  87;  Wassell  v.  Reardon,  11  Ark. 
705,  44  Am.  Dec.  245  (1851)  ;  Raplcy  v.  Price,  11  Ark.  713  (1851)  ;  Bakery^ 
Lukcns,  3.7  Pa.  146  (18^0);  Spencer  v.  Reynolds,  o  Pa.  C.  £L2AQ_  ( 1899)  • 
Compare  A'raMi-  v.  F earn e,  16  Ala.  689,  50  Am.  Dec.  197  (1849);  Gale  v. 
Chase,  3  Johns.  (N.  Y.)  147  (1808)  ;  Sherman  v.  Brenner,  i  W.  N.  C.  (Pa.) 
193  (1S74)  ;  Rea  v.  Forrest,  88  111.  275  (1878)  ;  First  Nat.  Bk.  v.  Ciinninghani, 
48  Fed.  510  (1891),  and  sec  Hunt  v.  Rotismanier,  8  Wheat.  (U.  S.)   174,  5 


GUYER   V.    GUYER  519 

Whiteley.  Any  entry  of  judgment  by  a  warrant  of  attorney  is 
an  execution  of  the  warrant,  and  it  is  thereupon  functus  officio. 
This  is  not  the  cause  of  an  entirely  unauthorized  entry  of  a  judg- 
ment on  the  warrant  of  attorney  in  question,  but  it  was  in  strict 
conformity  with  the  terms  of  it,  and  nothing  aliunde,  or  outside  the 
instrument  itself,  can  be  allowed  to  annul  or  defeat  the  execution 
of  it  when  made  in  literal  conformity  with  the  terms  of  the  power 
conferred  by  it.  i  Tidd.  552;  i  Houst.  516;  3  Wash.  568 ;  6  S.  &. 
R.  166:  5  Watts  28q;  i  Sug.  89. 

The  Court:  The  attempt  to  enter  the  first  judgment  in  the 
name  of  the  obligee  in  tlie  bond  several  terms  of  the  court  after  his 
death,  under  the  authority  of  the  warrant  of  attorney,  was  so  utterly 
inconsistent  with  the  power  conferred  by  it,  and  contrary  to  law,  that 
we  had,  and  still  have,  no  hesitation  in  considering  it  as  a  total  fail- 
ure to  execute  the  warrant,  and  an  absolute  nullity  in  contempla- 
tion of  law.  The  rule  in  this  case  must  therefore  be  discharged.^^ 


L.  ed.  589  (1823).  Judgment,  however,  can  not  be  entered  by  warrant  of  at- 
torney after  the  death  of  the  debtor.  Note,  I  Vent.  310  (1678);  Savile  V. 
Wiltshire,  Barnes  270  (1746)  ;  Bennett  V.  Davis,  3  Cow.  (N.  Y.)  68  (1824)  ; 
Milnor  v.  Milnor,  9  N.  J.  L.  93  (1827)  ;  Heath  v.  Brindlcy,  2  Ad.  &  El.  365 
(1834)  ;  Blackburn  v.  Godr'ick,  9  Dowl.  337  (1841)  ;  Lanninq  v.  PazMflj^^^Pa. 
St.  480  (1861)  ;  Tobias  v.  Dnrsey.  2W  Ki  C  (-p:^'^  15  (1875)  ;  Gordon  v^MarJ- 
7?v.  4  W.  JM.  C.  (Pa.)  37  (1S77)  ;  Haddock  v.  Stevens,  15  N.  Y.  Civ.  Pro.  248 
(1888).  A'or  can  judgment  be  confessed  in  favor  of  a  creditor  dead  at  the 
time.  IVild  V.  Sands,  2  Str.  718  (1726)  ;  Short  v.  Coglin,  i  Anst.  225  (1792)  ; 
Cowie  v.  Alla-way,  8  D.  &  E.  257  (1799)  J  Hcnsall  v.  Matthew,  7  Bingh.  337 
(1831)  ;  Finnrvv.  Ferguson.  3  W.itts.  ^  .S.  (PR.\y]J7.  (1842)  ;  Went 3  V.  Bealor. 
14  Pa.  C.  C.  322  (1804).  But  if  the  warrant  is  in  favor  of  the  creditor,  'his 
executors  and  administrators,"  judgment  may  be  entered  in  favor  of  the  per- 
sonal representatives.  Coles  V.  Haden,  Barnes,  44  (1746)  ;  Baldwin  v.  Atkins, 
2  Dowl.  591  ( 1834) . 

As  to  warrants  twenty  years  old,  see  Parsons  v.  Cannon,  27  Del.  298, 
88  Atl.  470  (1912)  ;  Bicrlv  \' Hamor,  Ko  Pa.  Super.  Ct.  12X  (1Q12'). 

'''A  judgment  having  been  once  entered  on  a  warrant  of  attorney  the 
warrant  is  fnnctns  officio  and  a  second  judgment  can  not  be  entered. _Campbell 
V.  Canon.  Add.  (Pa.)  267  (i795)  ;  IJvcdcy_y.  .P.cnnnrk,  9,  "Rrowne,,  (Pa.") 
32\  {\%\3)\F  air  child  V.  Camac,  3  WasHTC  C.  558,  Fed.  Cas.  No.  4610 
(1819)  ;  Martin  V-Rcx,  6  Serg.  &  R.  296  (1820)  ;  Neff  y.  Barr,  14  Serg^  & 
R.  166  (1826)  :  Uh-ich  V.  Voneida.  i  P.  &  \\L_(Pa. )  24S  {iS^JTManufac- 
turers  &  MechanTcs  bank  v.  Cowden,  3  Hill  (N.  Y.)  461  (1842)  :  Ely  v.  Kar- 
many,  23  Pa.  St.  314  (1854)  ;  Banning  v.  Taylor.  2A  Pa.  St.  207  (1855)  ;  Dixon 


"v. llIt//c7\J^~Fa." C- "C.  3?,^   ( 7597)  :  Palmer  v.  Hohman,  47  Pitts.  L.  J.  96 
(1899).    Wlie're  the  power  has  been  irregularly  exercised,  can  a  second  judg- 
ment  be  entered  after  the  first  has  been  set  aside?   It  was  so  held  in  Huner  v, 
Doolittle,  3  G.  Greene  (Iowa)  76  (1851),  and,  semble,  Coiilson  v.  Clutterhuck, 
2  Dowl.  (N.  S.)  391   (1842)  ;  Bennett  v.  Simmons,  2  D.  &  L.  98  (1844)  ;  2 
Chitty's  Pr.  869.    In  Pennsylvania  a  power  to  confess  judgment  authorizedX 
'by  a  warrant  of  attorney  is  exhausted  by  the  entry  of  judgment,  and  a  second  \ 
judgment  can  not  be  entered,  although  the  first  has  been  stricken  off  because  j 
Uio  formal  confession  was  filed  of  record.    BeUcvue  Bor.  v.  Hallett,  234  Pa.  / 
I191,  83  Atl.  66  (1912).    Accord:  Ostcrhout  v.  Briggs,  37  Pa.  Super.  Ct.  169/ 
1(1908);   Philadelphia  v.  Johnson,  208  Pa.   645,   57   Atl.    1114    (1904),   affg.  \ 
[23  Pa.  Super.  Ct.  591  (1903)  ;  Commonwealth  v.  Massi,  225  Pa.  548,  74  Atl.  1 
419  (1909)  ;  Hecren  v.  Remington,  47  Pa.  Super.  Ct.  437  (1911).  / 


5  JO  JL'DOMKNT 

SELIGMAX  T\UVAl  kt  at.,  r.  l-.DWARD  HERMAN  et  al. 

Court  ok  ArrKAi.s  or  Ni:\v  York,  1889 
115  A^  Y.  163" 

Appeal  from  jiulfi^mcnt  of  the  general  term  of  the  Supreme 
Court  in  the  First  Judicial  Department,  entered  upon  an  order  made 
Way  13,  1S87,  which  affirmed  a  judgment  in  favor  of  defendants, 
entered  upon  an  order  sustaining  a  demurrer  to  plaintiff's  complaint. 

This  action  was  brought  by  plaintiffs,  as  judgment-creditors  of 
the  defendants  Edward  and  ]\Ioses  Herman,  to  vacate  a  judgment 
obtained  against  him  by  defendant  Tuska. 

The  complaint  alleged,  in  substance,  that  the  judgment  in  favor 
of  Tuska  was  entered  upon  service  of  summons  and  complaint  and 
an  offer  of  judgment  served  on  the  same  day  the  complaint  was 
served;  that  the  object  of  procuring  judgment  in  this  form  was  to 
evade  tlie  statute ;  that  a  portion  of  the  cause  of  action  was  a  prom- 
issory note,  the  consideration  of  which  was  not  set  forth  in  the  com- 
plaint as  required  by  the  statute  relating  to  judgments  by  confes- 
sion, as  to  setting  forth  the  consideration  of  the  claim  upon  which 
judgment  is  sought;  that  the  judgment  was,  in  effect,  a  judgment  by 
confession,  and  so  was  void  for  want  of  such  statement. 

Earl,  J. :  A  creditor  may  obtain  a  judgment  against  his  debtor 
in  either  one  of  three  ways:  (i)  He  may  serve  a  summons  in  an 
action  and  take  judgment  after  a  trial  or  by  default,  and  he  must 
pursue  the  regular  practice  to  that  end.^°  (2)  He  may  serve  a  sum- 
mons and  complaint  and  obtain  an  offer  of  judgment  from  tlie  de- 
fendant, and  upon  that  enter  judgment  under  section  738  of  the 
Code;  and  if  he  adopts  that  course,  he  must  pursue  the  practice 
prescribed;*^  or  (3),  he  may  obtain  a  judgment  by  confession  in  the 

'^Affirming  44  Hun  (N.  Y.)  489.  The  statement  of  facts  has  been  modified 
from  that  report  and  the  arguments  of  counsel  omitted. 

*°N.  Y.  Code  Civ.  Proc,  §  1212,  et  scq. 

"X.  Y.  Code  Civ.  Proc,  §  738.  The  defendant  ma\-,  before  the  trial, 
serve  upon  the  plaintiff's  attorney  a  written  offer  to  allow  judgment  tp  be 
taken  against  him  for  a  sum,  or  property,  or  to  the  effect,  therein  specified, 
with  costs.  If  there  are  two  or  more  defendants,  and  the  action  can  be 
severed,  a  like  offer  may  be  made  by  one  or  more  defendants,  against  whom 
a  separate  judgment  may  be  taken.  If  the  plaintiff,  within  ten  days  there- 
after, serves  upon  the  defendant's  attorney,  a  written  notice  that  he  accepts 
the  offer,  he  may  file  the  summons,  complaint,  and  offer,  with  proof  of  accept- 
ance, and  thereupon  the  clerk  must  enter  judgmentaccordingly.  If  notice  of 
acceptance  is  not  thus  given,  the  offer  can  not  be  given  in  evidence  upon  the 
trial;  but  if  the  plaintiff  fails  to  obtain  a  more  favonible  judgment,  he  can  not 
recover  costs  from  the  time  of  the  offer,  but  must  pay  costs  from  that  time. 

See  Hill  v.  Northrop,  Q  How.  (N.  Y.)  525  (1854)  ;  Ranney  v.  Russell,  3 
Duer  689,  10  K.  Y.  Super.  Ct.  6S9  (1854)  ;  Dridenbacker  v.  Mason,  16  Hov/. 
Pr.  (X.  Y.)  203  Ci8s8)  ;  White  v.  Bogart,  7Z  N.  Y.  256  (1878)  ;  Riggs  v.  Way- 
dell,  78  N.  Y.  586  (1879)  ;  Shepherd  v.  Moodline,  150  N.  Y.  183,  44  X-  E. 
963  (1896);  United  States  Mortgage,  &c.,  Co.  v.  Hodgson,  30  Misc.  86,  61 
N.  Y  S.  868  (1R99)- 


TRIER   V.    HERMAN  52 1 

manner  provided  in  section  1273,  etc.,  of  the  Code.*^  He  has  the 
statutory  right  to  pursue  either  of  these  methods.  He  may  pursue 
one  for  the  express  purpose  of  avoiding  the  others,  because  the 
statute  gives  him  tlie  absolute  choice.  If  his  practice  is  regular  and 
his  claim  and  proceedings  are  honest  and  bona  fide,  no  court  will 
deprive  him  of  the  advantage  his  judgment  will  give  him.  He  can 
not  compel  his  debtor  to  give  a  confession  of  judgment,  and  if  he 
can  not  obtain  one,  he  must  pursue  one  of  the  other  methods. 

Here  there  is  no  claim  that  defendants'  practice  was  irregular, 
or  that  the  debt  for  which  judgment  was  taken  was  not  actually  due, 
or  that  there  was  any  fraud  or  bad  faith  practiced  upon  any  one. 

This  case  is  unlike  that  of  White  v.  Cotshaiisen,  129  U.  S.  329, 
because  in  that  case  there  was  but  one  statute  regulating  the  matter, 
and  that  was  violated;  and  it  is  more  like  the  case  of  Beards  v. 
Wheeler,  11  Hun  539;  76  N.  Y.  213. 

For  these  reasons,  and  those  expressed  more  at  large  in  the 
opinion  of  the  general  term,  the  judgment  should  be  affirmed,  with 
costs. 

All  concur. 

Judgment  affirmed.*^ 

*^N.  Y.  Code  Civ.  Proc,  §  1273.  A  judgment  by  confession  may  be  en- 
tered, without  action,  either  for  money  due  or  to  become  due,  or  to  secure  a 
person  against  contingent  liability  in  behalf  of  the  defendant,  or  both,  as  pre- 
scribed in  this  article. 

§  1274.  A  written  statement  must  be  made,  and  signed  by  the  defendant, 
to  the  following  effect : 

1.  It  must  state  the  sum,  for  which  judgment  may  be  entered,  and  au- 
thorize the  entry  of  judgment  therefor. 

2.  If  the  judgment  to  be  confessed  is  for  money  due  or  to  become  due, 
it  must  state  concisely  the  facts,  out  of  which  the  debt  arose ;  and  must  show 
that  the  sum  confessed  therefor  is  justly  due,  or  to  become  due. 

3.  If  the  judgment  to  be  confessed  is  for  the  purpose  of  securing  the 
plaintiff,  against  a  contingent  liability,  it  must  state  concisely  the  facts,  con- 
stituting the  liability ;  and  must  show,  that  the  sum  confessed  therefor  does 
not  exceed  the  amount  of  the  liability. 

The  statement  must  be  verified  by  the  oath  of  the  defendant,  to  the 
effect,  that  the  matters  of  fact  therein  set  forth  are  true.  See  Triiscott  v. 
King,  6  N.  Y.  147  (1852)  ;  Lanning  v.  Carpenter,  20  N.  Y.  447  (1859)  ;  Freligh 
V.  Brink,  22  N.  Y.  418  (i860)  ;  Gandall  v.  Finn,*  40  N.  Y.  217,  2  Abb.  Dec. 
232  (1864)  ;  Wood  v.  Mitchell,  117  N.  Y.  439,  22  N.  E.  1125  (1889)  ;  Critten 
V.  Vanderburgh,  151  N.  Y.  536,  45  N.  E.  952  (1897)  ;  Blackmer  v.  Greene,  20 
App.  Div.  532,  47  N.  Y.  S.  113  (1897);  Wild  v.  Porter,  22  App.  Div.  179, 
47  N.  Y.  S.  1036  (1897)  ;  Anderson  v.  Shutts,  114  App.  Div.  308,  99  N.  Y.  S. 
893,  37  Civ.  Proc.  R.  141  (1906).  Under  these  sections  judgment  can  not  be 
confessed  for  a  tort.  Burkham  v.  Van  Suan,  14  Abb.  Pr.  (N.  S.)  163  (1873). 

^'Generally,  a  judgrnent  by  consent  of  the  parties  is  as  conclusive  upon 
the  parties  and  their  privies  as  a  judgment  in  invitiim.  Harding  v.  Harding, 
198  U.  S.  317,  25  Sup.  Ct.  679,  49  L.  ed.  1066  (1905)  ;  Hoiipt  v.  Bohl,  71  Ark. 
330,  75  S.  W.  470  (1903);  Clark  v.  Charles,  55  Nebr.  202,  75  N.  W.  563 
(1898)  ;  Casler  v.  Chase,  160  Mo.  418,  60  S.  W.  1040  (1900),  but  it  may  be 
inquired  into  for  fraud.  Edison  Gen.  Electric  Co.  v.  Westminster  &  V.  T. 
Co.,  L.  R.   (1897)   App.  Cas.  193;  Hambleton  v.  Yocum,  108  Pa.  St.  .304. 


!;jj  JUDGMENT 

SECTION  3.     JUDGMENT  BY  DEFAULT 

MORRICE  r.  GREEN 
Court  of  King's  Bench,  1699 

3  Salk.  213. 

In  this  case  it  was  liolJ  that  a  judgment  by  nihil  dicit  is  where 
one  is  in  court,  and  required  to  make  answer  to  what  is  objected 
against  him,  but  he  is  silent  and  says  nothing  in  his  defense.** 

There  is  likewise  a  judgment  for  departing  in  despite  of  the 
court,  and  tliat  is  where  the  party  appears,  and,  being  to  attend  that 
day,  goes  out  of  the  court  without  leave  of  the  court ;  as  in  common 
recoveries,  where  the  common  vouchee  comes  in  and  pleads  nul 
tort,  mil  disseisin,  and  then  the  demandant  imparls  generally,  and 
not  to  a  day  certain ;  and  for  that  reason  the  vouchee  is  still  obliged 
to  attend  the  court,  but  doth  not;  then  the  entry  is,  postca  eodem 
die  revenit  the  demandant,  and  because  the  vouchee  is  not  there  but 
is  departed,  therefore  the  demandant  hath  judgment.*^ 

And  lastly  there  is  a  judgment  by  default,  and  that  is  where 
the  party  hath  a  day  certain,  and  is  demandable,  and  being  demanded 
doth  not  appear,  whereupon  judgment  is  given  against  him  by  de- 
fault: and  these  are  distinct  judgments,  which  can  not  be  used  the 
one  for  the  other.  See  Co.  Entr.  269  a.  Rast  Ent.  173  b.*^ 


"Tidd's  Practice,  562;  Com\-n's  Digest,  "Pleader,"  (c)  42;  Foster  v.  Fil- 
ley  2  111.  256  (1836)  ;  Cross  v.' Watson,  6  Blackf.  (Ind.)  129  (1842)  ;  Sum- 
vicrlin  v.  Dozi'dle,  24  Ala.  428  (1854)  ;  Safford  v.  Vail,  22  111.  Z27  (1859)  ; 
Dart  v.  Hercules,  34  111.  395  (1864)  ;  Wilcox  v.  Field,  i  Colo.  3  (1864)  ;  Mc- 
Nasser  v.  Sherry,  1  Colo.  12  (1864)  ;  Gilder  v.  Mclntyre,  29  Tex.  89  (1867)  ; 
Hochme  v.  Rupear,  i  Colo.  405  (1871)  ;  Comer  v.  Shiner,  4  Colo.  246  (1878)  ; 
Hutchinson  v.  Powell,  92  Ala.  619,  9  So.  170  (1890)  ;  Glens  Falls  Ins.  Co.  v. 
Porter,  44  Fla.  568,  33  So.  473  (1902)  ;  Endowment  Dept.  v.  Harvey,  6  Ala. 
App.  239  (1912).  For  form  see  Stephen  on  Pleading  (9  Amer.  ed.)  114. 

*'Co  Litt.  139a ;  Brooke's  Abridgment,  "Departure  in  Despite" ;  7  Viner's 
Abridgment,  449;  Y.  B.  22,  Edw.  Ill  2;  Y.  B.  3,  Hen.  IV,  2;  Y.  B.  9, 
Hen.  V,  5;  Y.  B.  9,  Hen.  VI,  58;  Lilbitrne  v.  Heron,  Cro.  Jac.  292  (1611). 

^'Co.  Litt.  25Qb ;  Sleigh  v.  Chetham,  I  Show.  20,  65  ( 1689)  ;  Staple  v. 
Hayden,  i  Salk. '216  (1703);  Howell  v.  Denniston,  3  Caines  (N.  Y.)  96 
(1805)  ;  Mason  v.  Germaine,  i  Mont.  263  (1870)  ;  Holtzman  v.  Martinez,  2 
N.  Mex.  271  (1882)  ;  Grigg  v.  Gilmer,  54  Ala.  425  (1875)  ;  Falken  v.  Hoiisa- 
tonic  R.  Co.,  63  Conn.  2s8,  27  Atl.  1117  (1893);  Chicago,  C.  C.  &  St.  L. 
R.  Co.  and  P.  &  E.  Ry.  Co.  v.  Bozarth,  91  111.  App.  68  (1900).  "At  common 
law  judgment  against  the  defendant  for  default  of  appearance  was  unknown, 
the  penalty  for  his  contumacy  being  distress  infinite  and  outlawry ._  But  if 
after  appearing  he  neglected  to  make  defense  by  plea  or  demurrer  within  the 
time  allowed,  judgment  by  nihil  dicit— 'he  says  nothing'— might  be  taken 
against  him."  Ahele.^  v.  Pozvell.  6  Pa.  Super  Ct.  I2t.  (i8q7)  ;  Rhoades  v. 
Delaney,  "O  Ind.  468  (187s)  ;  Douglass  v.  Langdon,  29  Iowa  245  (1870) ;  Fan- 
ning V.  R\is.^ell,  81  111.  398  (1876).  By  statute  of  5  George  II,  ch.  27,  to  ex- 
pedite the  plaintiff's  proceedings,  if  the  defendant  after  service  of  process  did 
not  appear  at  the  return  day  or  within  eight  days  thereafter,  the  plaintiff  was 
permitted  to  enter  a  common  appearance  or  file  common  bail  and  proceed  as 
if  the  defendant  had  appeared.   Carter  v.  Daisy,  42  Miss.  501  (1869).   There 


DAVIS    V.    GRANISS  523 

DAVIS  V.  GRANISS 

Supreme  Court  of  Indiana,  1839 

S  Black f.  (Ind.)  79 

Error  to  tlie  La  Porte  Circuit  Court. 

Sullivan,  J. :  Assumpsit  by  C,  B.  Graniss  and  others  against 
Davis  and  one  Allison  on  a  promissory  note.  Davis  appeared  and 
pleaded  to  the  action.  Allison,  on  whom  process  had  been  duly 
served,  entered  no  appearance.  An  issue  was  made  on  the  plea  filed 
by  Davis.  Verdict  and  judgment  against  Davis  alone. 

This  judgment  must  be  reversed.  The  error  consists  in  taking 
judgment  against  one  of  the  defendants  only.  The  principles  which 
govern  suits  against  joint  contractors  are,  we  presume,  familiar  to 
all.  A  judgment  by  default  should  have  been  taken  against  Allison, 
and  the  jury  that  tried  the  issue  made  on  the  plea  filed  by  Davis, 
should  have  been  sworn  to  assess  the  damages  against  Allison  also. 
2  Arch.  Pr.  23. 

Judgment  reversed.*^ 


would  seem  to  be  little  material  difference  between  a  judgment  by  nihil  dicit 
and  one  by  default.  Winn  v.  Levy,  2  How.  (Miss.)  902  (1838)  ;  Manville  v. 
Parks,  7  Colo.  128,  2  Pac.  212  (1883)  ;  Elyton  Land  Co.  v.  Morgan,  88  Ala. 
434,  7  So.  249  (1889),  and  see  Barhe  y.  Davis,  1  Miles  (Pa.)  118  (1835).  In 
fact,  the  modern  tendency  is  to  use  the  term  default"  in  its  broadest  sense, 
so  as  to  include  any  failure  by  a  party  to  a  suit  to  take  a  step  required  by  law 
in  its  prosecution  or  defense.  6  Enc.  PI.  &  Pr.  10;  Warren  v.  Kennedy,  i 
Heisk.  (Tenn.)  437  (1870)  ;  Acheson  v.  Inglis,  155  Iowa  239,  135  N.  W. 
632  (1912).  But  a  judgment  for  want  of  a  sufficient  affidavit  of  defense  is  a 
judgment  upon  defense  made,  and  not  on  a  default.  Abcles  v.  Powell,  6  Pa. 
Super.  Ct.  123  (1897). 

For  the  modem  English  practice  see  Rules  of  Supreme  Court,  order  xxvii. 
And  see  N.  Y.  Code  Civ.  Proc,  §§  1212-15 ;  Penna.  arts  Tnnp  73,  1836.    P.  L.I/ 
568,  §  33 ;  P..  &  L.  Dig.  (2d  ed_J_584.S ;  March  28.  183,^.  P.  L.  88.  §  2 :  P.  &  Li 
Dig.   (2d  ed.T5847 ;  May  25,  1887,  P.  lITzji,  §  5 ;  P."  &  L.  Dig.   (2d  ed.)L 
5853;  April  22,  1889,  P.  L.  41  ;  P.  &  L.  Dig.  (2d  ed.)  5867.   New  Jersey  Comp. 
Stat.  (1910),  p.  4094,  §  133;  N.  J.  Laws,  1912,  p.  394;  Mass.  Rev.  Laws  (1902) 
ch.  173,  §  54;  Cal.  Code  Civ.  Proc.  (1915),  §  585;  Ohio  Gen.  Code  (1910) 
p.  2482. 

A  judgment  by  default  against  one  who  has  neither  been  served  with 
process  nor  entered  an  appearance  in  the  action  is  irregular  and  void.  Moore 
V.  Watkins,  i  Ark.  268  (1839)  ;  Townsand  v.  Townsand,  21  111.  540  (1859); 
Swift  v.  Dixon,  131  N.  Car.  42,  42  S.  E.  458  (1902)  ;  Ault  v.  Cowan  (2),  20 
Pa.  Super.  Ct.  628  (1902);  Jones  v.  Roland,  8  Blackf.  (Ind.)  272  (1846); 
Harris  V.  Hardeman,  14  How.  (U.  S.)  334,  14  L.  ed.  444  (1852).  Statutes 
providing  for  constructive  service  are  in  derogation  of  the  common  law  and 
must  be  strictly  followed.  Jordan  v.  Giblin,  12  Cal.  loo  (1859);  Thompson 
v.  Carroll,  36  N.  H.  21  (1857)  ;  Bardsley  v.  Hines,  23  Iowa  157  (1871)  ;  Pen- 
noyer  v.  Neff,  95  U.  S.  714,  24  L.  ed.  565  (1877)  ;  Bowler  v.  Ennis,  46  App. 
Div.  309,  61  N.  Y.  S.  686  (1899);  Porter  v.  Prince,  188  Mass.  80,  74  N.  E. 
256  (1905).  Judgment  by  default  entered  prior  to  the  time  allowed  by  law 
for  an  appearance  is  erroneous.    Winaeri  v.  CnnnpU^  a  Sprfr^_^T?    (Pa.)  237 

*'At  common  law,  where  judgment  by  default  was  signed  as  to  part  of 
the  defendants  in  a  joint  action,  and  issue  joined  as  to  the  residue,  a  special 


5 -'4  JUDGMENT 

BOULTKR  z:  FORD. 
Court  ov  King's  Bench,  1662 

Sidcrfin  76." 

Covenant  is  brought  against  two  upon  an  indenture  by  which 
they  covenant  artificially  to  erect  a  house,  etc.  One  makes  default 
wherefore  judgment  is  against  him.  The  other  pleads  that  the  two 
did  artificially  erect  the  house  upon  which  they  are  at  issue  and 
found  for  the  defendant.  And  it  was  moved  for  the  plaintiff,  not- 
widistanding  the  verdict,  he  should  have  a  writ  of  inquiry  against 
that  defendant  against  whom  judgment  is  given  by  default  be- 
cause here  the  act  to  be  done  should  be  done  by  both  and  one  is 
condemned  of  nonfeasance  by  the  judgment.  But  it  was  held  by  the 
court  that  no  writ  of  inquiry  should  issue  against  the  other  de- 
fendant to  charge  him  with  any  damages,  for  it  appears  by  the 


venire  was  awarded  tarn  ad  triandum  qtiam  ad  inquirendum,  as  well  to  try  the 
issue  as  to  inquire  of  the  damages;  and  the  jury  that  tried  the  issue  in  that 
case  assessed  the  damages  for  all.  2  Arch.  Pr.  700;  Hcydon's  Case,  11  Co.  5 
(1612)  ;  Crcssy  v.  U'chb,  2  Str.  1222  (1744)  ;  Dicker  v.  Adams,  2  B.  &  P.  163 
(1800)  ;  Hart  v.  De  Lord,  17  Johns.  (N.  Y.)  269  (1820)  ;  ]'an  Schaik  v.  Trot- 
ter, 6  Cow.  (N.  Y.)  599  (1S27)  ]  (y2lcalv^O^Nc_ql,^4  Watts  &  S.  (Pa.^  t:;o 
( 1842)  ;  Day  v.  Braidey.l  Pa.  St.  4gQjCl845)  ;  Gerrish  v.  Cummings,  4  Cush. 
(Mass.)  39":  {iii4g)  ;  Chase  v.  Lovering,  27  N.  H.  295  (1853);  Storey  v. 
Bird,  8  Mich.  316  (i860)  ;  Coynmonv.'ealth  v.  McCleary,  Q2  Pa.  St.  188  (1879)  ; 
Netso  V.  Foss,  21  Fla.  143  (1884)  ;  IVatsontown  Nat.  Bank  v.  Messenger.  6 
Pa.  C.  "C.  6oq_IiS8clL;  Stainbrook  v.  Duncan,  45  111.  App.  344  (1892)  ;  Coles 
V.  McKenna,  80  N.  J.  L.  48,  76  Atl.  344  (1910)  ;  Ernst  Tosctti  Brew.  Co.  v. 
Wagner,  168  111.  App.  27  (1912)  ;  Long  v.  Gzvin,  188  Ala.  196,  66  So.  88  (1914). 
Hence,  in  an  action  against  several  persons  on  a  joint  debt  if  one  defaults, 
final  judgment  can  not  be  entered  against  him  until  the  issues  as  to  the 
others  are  disposed  of.  Russell  v.  Hogan,  2  111.  552  (1839)  ;  Teal  v.  Russell, 
3  111.  319  (1840);  Hitlme  V.  Janes,  6  Tex.  242,  55  Am.  Dec.  774  (1851); 
Barker  v.  Justice,  41  Miss.  240  (1866);  Campbell  v.  Floyd,  153  Pa.  St.  84, 
25  Atl.  1033,  1038  (1893)  ;  Murtland_JS.JEkixJ!L.JS^  Pa.  St  09,  21  Atl.  1038 
(1893);  Uher  V.  Cameron  State  Bank  (Tex.  Civ.  App.),  125  S.  W.  321 
(1910)  ;  Silts  V.  Springer,  236  111.  276,  85  N.  E.  748  (1908).  Compare:  Mc- 
Jntyre  V.  Smith,  108  Va.  736,  62  S.  E.  930  (1908).  See,  also,  Blessing  v.  Mc- 
Lindcn,  81  N.  J.  L.  379,  79  Atl.  347,  35  L.  R.  A.  (N.  S.)  3i2n  (1911)  ;  Cellu- 
lose Package  Mfg.  Co.  v.  Calhoun,  166  Cal.  513,  137  Pac.  238  (1913)- 

Generally,  in  actions  on  joint  contracts,  where  no  purely  personal  defense 
is  interposed  by  one  defendant,  judgment  must  be  rendered  against  all  who 
are  served  or  none.  Tut  tie  v.  Cooper,  27  Mass.  281  (1830)  ;  Rohr  v.  Davis,  9 
Leigh  (Va.)  30  (1837)  ;  State  v.  Gibson,  21  Ark.  140  (i860)  ;  Addcrton  v.  Col- 
lier, 32  Mo.  507  (1862)  ;  Donnelly  V.  GraJiam,'^-/  Va  St.  27/]  (187=;')  ;  Curry  v. 
Roundtree,  51  Cal.  184  (1^75)  ;  Slapp  v.  Davis,  78  Ind.  128  (1881)  ;  Wootters 
V.  Kauffman,  67  Tex.  488,  3  S.  W.  465  (1887)  ;  Pen  fold  v.  Sly  field,  no  Mich. 
343.  68  X.  W.  226  (1896)  ;  Scho field  v.  Palmer,  134  Fed.  753  (1904)  •,3olt^. 
V  \fiirhUio-f.  37  Pa.  Super  Ct.  375  (1908)  ;  Edgerton  v.  Chicago,  R.  L  &  P. 
R.  Co.,  146  111.  App.  199  (1909),  and,  therefore,  an  interlocutory  judgment 
against  one  could  not  be  made  final  until  the  case  is  concluded  as  to  the 
others,  i  Black  on  Judgments  (2d  ed.),  §  206;  Taylor  v.  Beck,  3  Rand.  (Va.) 
316  (1825)  ;  Dow  V.  Rattle,  12  111.  373  (1851)  ;  Swanzey  v.  Parker,  50  Pa.  St. 
441,  88  Am.  Dec.  549  (1866). 

*"S.  C.  I  Keb.  284.   Part  of  the  case  is  omitted. 


WILKINS   V.    BROCK  5^5 

verdict  that  the  covenant  is  performed.  And  the  other  defendant 
shall  have  costs  against  the  plaintiff.  See  Tilly  and  Woody's  Case, 
7  Edw.  IV,  31 ;  Parker  and  Lawrence's  Case,  Hob.  14,  17. 


WILKINS'  ADMR.  v.  BROCK  AND  ROSELLE 

Supreme  Court  of  Vermont,  1908 

81  Vt.  332." 

RowELL,  C.  J. :  This  is  an  action  for  malpractice  as  physicians. 
The  declaration  contains  a  count  in  trespass  for  assault  and  battery 
and  two  counts  in  case.  At  the  close  of  all  the  testimony,  the  count 
in  trespass  was  ruled  out,  there  being  no  evidence  to  support  it,  and 
the  case  submitted  only  on  the  other  counts. 

The  defendant  Roselle  let  judgment  go  by  default.  The  de- 
fendant Brock  pleaded  not  guilty,  and  the  issue  was  tried  by  jury 
and  found  for  the  plaintiff,  and  damages  assessed  against  the  de- 
fendants jointly  by  direction  of  the  court,  the  defendant  Roselle 
not  appearing.  To  this  the  defendant  Brock  excepted,  and  objects 
that  Roselle  was  not  a  party  on  trial,  and  stood  as  though  she  had 
never  been  a  party  to  the  action,  and  that  he  was  prejudiced  by 
bringing  thus  prominently  before  the  jury  that  she  had  admitted 
her  guilt,  as  the  jury  would  be  likely  to  think  that  as  she  was  guilty 
he  was  also,  as  they  joined  in  the  treatment  complained  of.  But 
here  was  no  error,  for  the  judgment  against  Roselle  was  interlocu- 
tory, not  final,  and  therefore  she  remained  a  party  for  the  purpose 
of  assessing  damages;  and  though  she  was  defaulted  and  Brock 
found  guilty,  yet  the  final  judgment  was  to  be  joint,  for  they  were 
declared  against  jointly,  and  there  could  be  but  one  assessment  of 
damages,  and  that  assessment  had  to  be  by  the  jury  that  tried  the 
issue  between  the  plaintiff  and  Brock.  Mr.  Tidd  says  that  in  an 
action  against  several,  if  some  let  judgment  go  by  default  and  oth- 
ers plead  to  issue,  tlie  jury  that  tries  the  issue  assesses  damages 
against  all.  2  Tidd's  Pr.,  3d  Am.  ed.  894.^°  So  in  Heydon's  Case, 
II  Co.   (5a),  which  w^as  trespass  for  assault  and  battery  against 

*^0nly  so  much  of  the  case  as  relates  to  the  question  of  default  is  printed. 
The  judgment  of  the  court  below  was  reversed  upon  other  grounds. 

""'In  trespass  or  other  action  for  wrong,  against  several  defendants,  the 
plaintiff  may,  at  any  time  before  final  judgment,  enter  a  nolle  prosequi  as  to 
one  defendant  and  proceed  against  the  others."  i  Tidd's  Practice  (8th  ed.) 
736;  IValsh  V.  Bishop,  Cro.  Car.  239,  243  (1631)  ;  Lover  v.  Salkeld,  2  Salk. 
455  (1699)  ;  Greeves  v.  Rolls,  2  Salk.  456  (1703)  ;  Dale  v.  Eyre,  I  Wils.  306 
(1751).  So  a  verdict  and  judgment  against  one  or  more  defendants  may  be 
regarded  as  equivalent  to  a  nol.  pros,  as  to  the  others,  although  there  is  no 
formal  entry  to  that  effect.  Cridlandw.  Floyd.  6  Serg.  &  R.  (Pa.)  412  (1821)  ; 
Breidenthal  v.  McKenna,  14  PaT^t.  160  (1850)  ;  Davis  v.  Taylor,  41  III. 
40^(1866)  ;  St.  Louis,  &c.,  k.  Co.  V.  Smith,  43  111.  176  (1867)  ;  McDonald  v. 
Judson,  97  III.  App.  414  (1900)  ;  Lynch  v.  Chicago,  152  III.  App.  160  (1909)- 

Generally,  there  is  no  contribution  between  tort  feasors ;  one  may  be  sued 
severally  or  any  or  all  together,  and  where  more  than  one  is  sued  a  verdict 
pr  judgment  may  be  rendered  for  or  against  any  or  all.   Sparrow  v.  Bromagc, 


c;26  Jl'DCMF.XT 

tlircc,  two  plonilcd  to  issue  and  tried  separately,  and  damages  in 
different  anioinits  assessed.  One  let  judgment  go  by  default,  and  a 
writ  of  inquiry  of  damages  was  awarded  on  the  roll  but  not  issued. 
Thereupon  a  great  question  was  moved,  and  depended  for  divers 
terms,  how,  and  against  whom,  and  for  what  amount,  judgment 
should  be  entered;  and  at  last,  on  consideration  had  of  the  prece- 
dents and  the  books,  jud.gment  was  entered  against  all  for  the  sum 
first  assessed,  and  that  judgment  was  affirmed  on  error.  So  in  i 
Saund.  207a,  note  (2),  it  is  said  that  where  several  are  jointly 
charged  in  an  action  of  trespass  and  plead  jointly,  or  sever  in  their 
pleas,  or  one  lets  judgment  go  by  default,  and  the  jury  assesses  sev- 
eral damages,  the  verdict  is  wrong  and  the  judgment  erroneous.  But 
that  the  plaintiff  may  cure  the  verdict  by  entering  a  nol.  pros,  as  to  all 
the  defendants  but  one,  and  taking  judgment  against  him  only. 
So  in  Bohun  v.  Taylor,  6  Cow.  313,  it  is  said  that  where  there  is  but 
one  trespass,  and  "all  are  found  guilty  of  the  whole,  the  damages 
must  be  entire,  though  the  defendants  sever,  and  one  lets  judgments 
go  by  default.  And  in  Gcrr'ish  V.  Cnmm'mgs,  4  Cush.  391,  it  is  said 
that  in  an  action  of  trover  there  can  be  but  one  assessment  of  dam- 
ages; and  though  one  defendant  is  defaulted  and  the  other  found 
guilty,  yet  there  must  be  a  joint  judgment,  and  that  the  verdict, 
which  is  to  fix  the  amount  of  damages,  fixes  it  as  well  for  the  party 
defaulted  as  for  the  party  that  pleaded.^^ 

83  Conn.  27,  74  Atl.  1070  (1910)  ;  Jansen  v.  Varmim,  89  111.  100  (1878); 
Vicths  v.  Skinner,  47  111.  App.  325  (1892) ;  Hozvard  v.  Dayton  Co.,  94  Ga.  416, 
20  S.  E.  336  (1894)  ;  Peacock  v.  F caster,  51  Fla.  260,  40  So.  74  (1906)  ;  Love- 
lace V.  Miller,  150  Ala.  422,  43  So.  734  (1907)  ;  Tan::er  v.  Breen,  131  App. 
Div.  654,  116  N.  Y.  S.  no  (1909)  ;  Reid  v.  Miller,  205  Mass.  80,  91  N.  E. 
223  (1910);  Pecaro  v.  Halberg,  246  111.  95,  92  N.  E.  600  (1910);  Winn  v. 
Kansas  City  B.  R.  Co.,  245  Mo.  406,  151  S.  W.  98  (1912)  ;  Bochm  v.  General 
E.  Co.,  179  Mo.  App.  663,  162  S.  W.  723  (1914)-  But  in  Pennsylvania  the 
practice  is  that  where  the  declaration  is  for  a  joint  tort  and  the  evidence 
fails  to  show  joint  action  by  the  defendants,  the  plaintiff  must  amend,  oth- 
erwise there  will  be  a  variance.  Weist  v.  Traction  Co.,  200  Pa.  148,  49_Atb  891 
( 1901 )  ;  Demfsev  v.  Devers.A?',  Pa-  Super^Lt^  193  Ci9io;-  St^Tinqiiisl  v. 
Hodges,  248  111.  491,  94  ^.  E.  94  (i9ii)"T~        ;  ""     "     „,  ^  ,         „    , 

"Accord:  Bostwick  v.  Lewis,  I  Day  (Conn.)  33  (1802)  ]  IVakelyjLJmd, 
6  Binn.  (Pa.)  316  (1814),  semble;  Bohun  v.  Taylor,  6  Cow.  (JST  Y.)  313 
TTS26)  ;  Gerrish  v.  Ciimmings,  s8  Mass.  (4  Cush.)  391  (1849)  ;  Turner  v.  Mc- 
Carthy, 4  E.  D.  Sm.  (N.  Y.)  247  (1885)  ;  O'Shca  v.  Kirker,  8  Abb.  Pr.  69, 
17  N.  Y.  Super.  Ct.  120  (1859)  ;  O'Shea  v.  Kirker,  4  Bosw.  120  (1859)..  Where 
a  joint  tort  is  proved  the  jury  can  not  award  several  damages  against  the 
individual  defendants.  Rodney  v.  Strode,  1  Carth.  19  (1685)  ;  Sabin  v.  Long, 
I  Wils.  30  (1743)  ;  Hill  v.  Goodchild,  5  Burr.  2790  (1771)  ;  Mitchell  v.  Mil- 
hank,  6  T.  R.  199  (1795) ;  Halsey  v.  Woodruff,  9  Pick.  (Mass.)  555  (1830)  ; 
Gardner  v.  Field,  67  Mass.  151  (1854)  ;  Beal  v.  Finch,  li  N.  Y.  128,  9  How. 
Pr.  385  (1854);  Greenlands  Ltd.  v.  Wilwshurst,  L.  R.  3  K.  B.  507  (1913)  ; 
Foy  V.  Barry,  159  App.  Div.  749,  I44  N.  Y.  S.  971  (1913)-  But  see  Broivn  v. 
Thaver,  212  Mass  392,  99  N.  E.  237  (1912). 

Cressy  v.  Webb,  King's  Bench  1744,  2  Strange  1222.  Webb  only  pleaded 
to  issue,  the  other  defendants  let  judgment  go  by  default.  And  it  came  on  at 
Guildhall  to  try  the  issue,  and  also  to  assess  the  damages  as  to  the  others.  On 
the  trial  Webb  was  acquitted,  and  a  doubt  arose  whether  the  plaintiff  could 
go  on ;  but  the  chief  justice  thought  he  might  proceed,  and  he  did  so.  Accord : 
Jones  v.  Harris,  2  Str.  1108  (1738)  ;  Legrand  v.  Page,  7  T.  B.  Mon.  (Ky.) 
401  (1828).  But  otherwise  if  the  defense  "destroys  the  cause  of  action  as 
to  all  the  defendants."    Biggs  v.  Greenfield,  8  Mod.  217,  2  Ld.  Raym    1372 


KARON    V.    EISEN  527 

KARON  ET  AL.  V.  EISEN  et  al. 

Supreme  Court  of  New  York,  Appellate  Term,  191  i 

2  N.  y.  Civ.  Proc.  (iV.  S.)  197" 

Appeal  from  an  order  of  the  City  Court  of  New  York  entered 
at  special  term  denying  a  motion  made  by  the  defendant  Samuel 
Wiesenfeld  to  vacate  a  judgment  by  default  entered  against  him. 

Page,  J. :  The  complaint  in  this  action  alleges,  so  far  as  material 
to  this  appeal,  that  Eisen  and  Einhorn  made  their  promissory  note 
payable  to  the  plaintiffs  for  the  sum  of  $803.25 ;  that  thereafter,  and 
before  delivery  thereof  to  the  plaintiffs,  and  in  order  to  lend  credit 
to  said  note,  and  to  induce  the  plaintiffs  to  accept  the  same,  for  a 
valuable  consideration,  the  firm  of  B.  Wiesenfeld  &  Co.,  composed 
of  the  defendants  Benjamin  Wiesenfeld,  Samuel  Wiesenfeld,  and 
Max  Spalter,  duly  indorsed  said  note,  and  the  same  was,  with  the  in- 
dorsement thereon,  duly  delivered  to  the  plaintiffs,  for  value  re- 
ceived, and  the  plaintiffs  thereby  became  the  lawful  owners  and 
holders  thereof,  for  value,  and  in  due  course.  Due  presentation, 
demand  at  maturity,  non-payment,  and  notice  thereof  were  also  duly 
alleged.  Benjamin  Wiesenfeld  and  Max  Spalter  answered.  Samuel 
Wiesenfeld  did  not  answer.  Therefore  a  judgment  for  the  full 
amount  demanded  in  the  complaint  was  entered  against  him.  Motion 
was  made  to  vacate  the  judgment,  and  was  denied. 

The  liability  of  the  members  of  the  firm  of  B.  Wiesenfeld  & 
Co.  was  a  joint  liability,  and  the  plaintiffs  could  not  take  judgment 
against  one  joint  defendant  until  the  issue  raised  by  the  other  joint 
defendants  has  been  disposed  of.  Smith  v.  Weston,  81  Hun  87,  89; 
30  N.  Y.  Supp.  649.^^  It  is  only  where  the  liability  is  several  that 
judgment  can  be  taken  against  a  defendant  upon  his  default,  in  a 
case  where  some  of  the  defendants  have  answered,  and  then  the 
action  must  be  severed.  Code  Civ.  Proc.  sections  456,  1205.  In  this 
case  the  action  has  not  been  and  could  not  be  severed.  Therefore, 
if  plaintiff  was  successful  on  the  trial  of  the  issue  raised,  a  judg- 
ment would  be  entered  against  all  of  the  defendants  named,  who  are 
jointly  indebted,  and  the  appellant  would  have  two  judgments 
against  him  on  the  same  cause  of  action,  and  in  the  same  action. 
The  clerk  had  no  power  or  authority  to  enter  the  judgment.  There- 
fore it  should  have  been  vacated.^* 

Order  reversed. 


(1723)  ;  Panghurn  v.  Buick  Motor  Co.,  211  N.  Y.  228,  105  N.  E.  423  (1914)  ; 
and  see  Doremus  v.  Root,  23  Wash.  710,  63  Pac.  572,  54  L.  R.  A.  649  (1901). 

^"S.  C.  128  N.  Y.  S.  137.   Part  of  the  opinion  is  omitted. 

"Accord:  Catlin  v.  Billings,  13  How.  Pr.  (N.  Y.)  511  (1857)  ;  Warner  v. 
Ford,  17  How.  Pr.  (N.  Y.)  S4  (1858);  Anckcr  v.  Adams,  23  Ohio  St.  543 
(1873)  ;  Smith  V.  Weston,  81  Hun  87,  30  N.  Y.  S.  649  (1894)  ;  Oshnn  v.  Bar- 
tram,  8  O.  C.  D.  259,  IS  Ohio  C.  Ct.  224  (1897)  ;  Bauer  v.  Hawes,  115  App. 
Div.  492,  loi  N.  Y.  S.  455  (1906).  See  Pomeroy's  Civil  Remedies  (3d  ed.), 
§  299  et  seq. 

"Compare  Stedeker  v.  Bernard,  102  N.  Y.  327,  6  N.  E.  791  (1886).  By. 
§  454  of  the  New  York  Code  of  Civil  Procedure  two  or  more  persons  sev- 
erally liable  upon  the  same  instrument  may  be  joined  as  defendants.   By  §  456, 


c;j8  JUDGMEXT 

SIR  FRAXCTS  GOODWIN  r.  WKLSIIK  &  OVER 

Court  of  King's  Bench,  1609 

YfhcrtoK   isi"' 

Sir  Francis  brought  several  actions  of  trespass  against  the  two 
defendants  for  goods  taken,  and  declared  to  damages.  The  attor- 
ney for  the  defendants  pleaded  von  sum  informatus;  and  thereupon 
iudgment  is  given  severally  for  the  plaintiff  and  writs  of  inquiry 
of  damages  issued,  and  were  returned.  And  it  was  moved  that  the 
writs  should  not  be  filed,  because  the  plaintiff'  at  tlie  time  of  the 
inquiry  did  not  prove  that  the  goods  belonged  to  him,  but  only 
proved  tlie  value  of  the  goods;  for  by  Serjeant  Nichols  there  is  a 
dift'erence  between  an  action  confessed  and  non  sum  informatus; 
for  in  the  first  case  the  property  is  likewise  confessed  to  be  in  the 
plaintiff",  but  it  is  not  so  in  the  other  case;  for  this  judgment  passes 
without  the  defendant's  privity  and  only  for  want  of  pleading,  as 
in  the  case  of  niliil  d'lclt.  But,  per  tot'  Cur',  it  is  all  one,  and  the 
plaintiff'  need  not  prove  property  in  either  of  the  cases,  and  the  rea- 
son is,  because  the  writ  commands  only  the  value  to  be  inquired 
and  no  more,  and  that  alone  is  the  charge  of  the  jury.  And,  by  all 
the  justices,  they  themselves  as  judges,  if  they  would,  might  in 
these  cases  assess  damages,  without  issuing  any  writ;  for  it  issues 
onlv  quia  nescitur  quae  damna;  but  if  they  will  trouble  themselves 
v.ith  the  assessment  of  damages  they  may.^'^  But  it  is  otherwise  in 
the  case  of  non  cul.  pleaded,  for  there  the  trespass  is  denied,  which' 
must  be  tried  by  the  jury,  and  there  the  property  and  the  value  also 
ought  to  be  proved.    Nota  also,  in  the  first  case,  the  judgment  is, 


where  the  summons  is  aprainst  persons  "alleped  to  be  severally  liable,"  judp- 
ment  mav  be  taken  against  one  or  more  where  plaintiff  would  be  entitled  to 
judgment  if  the  action  was  against  him  or  them  alone.  When  judgment  is 
so  taken  the  action  is  served  and  plaintiff  proceeds  against  the  other  defend- 
ants. §  1205  provides:  "Where  the  action  is  against  two  or  more  defendants, 
and  a  several  judgment  is  proper,  the  court  ma}%  in  its  discretion,  render 
judgment,  or  require  the  plaintiff  to  take  judgment,  against  one  or  more 
defendants,  and  direct  that  the  action  be  severed  and  proceed  against  the 
others,  as  the  only  defendants  therein."  Sec  Pomeroy's  Civil  Remedies  (3d 
ed.),  §  403;  Bank  of  Gcncssee  v.  Field,  IQ  Wend.  (N.  Y.)  643  (1839); 
Parker  v.  Jackson,  16  Barb.  (N.  Y.)  33  (1852)  ;  Pruyn  v.  Black.  21  N.  Y. 
300  (i860)  ;  Mcintosh  v.  Ensign,  28  N.  Y.  169  (1863)  ;  Stimson  v.  Van  Pelt, 
66  Barb.  (N.  Y.)  151  (1868);  Fielden  v.  Lahens,  6  Abb.  Pr.  (N.  S.)  341 
(1867);  Weidman  v.  Sibley,  16  App.  Div.  616,  46  N.  Y.  S.  1102  (1897); 
Lau'ton  v.  Partridge,  in  App.  Div.  8,  97  N.  Y.  S.  516  (1906);  Draper  v. 
Interborough  Transit  Co.,  124  App.  Div.  357.  108  N.  Y.  S.  691  (1908)  ;  Sayre 
V.  Progressive  C.  Co.,  159  App.  Div.  (N.  Y.)  799  (1913);  I-yon  v.  Page,  21 
Mo.  104  (1855)  ;  Key  v.  Robinson,  8  Ind.  368  (1856)  ;  People  v.  Fnsbie,  18 
Cal.  402  (1861);  Shain  v.  Forbes,  82  Cal.  577,  23  Pac.  198  (1890);  Bailey 
Loan  Co.  v.  Hall,  no  Cal.  490,  42  Pac.  962  (1895)  ;  Cole  v.  Roeblmg  Const. 
Co.,  156  Cal.  443.  105  Pac.  255  (1909)- 

"S.  C.  Cro.  Jac.  220;  i  Brownl.  214. 

"Bruce  v.  Raivlings,  3  Wils.  61  (1770)  ;  Longman  v.  Fenn,  i  H.  Bl.  541 
(1791) ;  rFflfH»i_\L-£/n7/i/?y/^  Whart.  (PiU-goc)  (1837)  ;  BeUvJBdlj)  Watts 
47(_l83St).   See,  zho,  J  arvis  v.  Blanchard,  6  Mass.  4  (i8nJ7 


HOOKIN    Z:    QUILTER  $29 

quod  recuperet  querens.  If  then  upon  a  writ  of  inquiry  of  damages 
the  plaintiff  should  be  obliged  to  prove  property  and  fail  of  it,  that 
would  go  in  avoidance  of  the  first  judgment,  which  can  not  be. 
Yelverton  of  counsel  with  the  plaintiff.^^ 


HOOKIN  V.   QUILTER 

Court  of  King's  Bench,  1747 

2  Str.  1271=^ 

There  were  three  counts  in  the  declaration  as  executrix,  and  a 
fourth  was  for  use  and  occupation  of  the  plaintiff's  house.  Judg- 
ment by  default  in  common  bench  and  reversed  on  error. 

For  per  curiam  there  being  no  verdict,  we  can  presume  nothing, 
but  that  the  fourth  count  is,  as  it  appears,  in  her  own  right,  which 
can  not  be  joined  with  the  others,  and  the  damages  are  intire.^^ 

^'Letting  judgment  go  by  default  is  an  admission  of  the  cause  of  action. 
East  India^Co.  v.  Glover,  i  Str.  612  (1725)  ;  Bcvis  v.  Lindsell,  2  Str.  1149 
(1740);  Anonymoiis,  3  Wils.  155  (1771)  ;  Snovuden  v.  Thomas,  2  Wm.  Bl. 
748  (1771);  Thellnsson  v.  Fletcher,  i  Dougl.  315  (1780);  Leib  v.  Bolton,  x 
Dall.  (Pa.)  82,  I  L.  ed.  46  (1784)  ;  Greene  v.  Hearne,  3  T.  R.  301  (1789)  ; 
Shepherd  v.  Charter,  4  T.  R.  275  (1791)  ;  De  Gaillon  v.  L'Aigle,  i  B.  &  P. 
368  (1799)  ;  Kingston  v.  Haychurch,  I  Chittv  R.  644  (1819)  ;  Bates  v.  Loomis, 
5  Wend.  (N.  Y.)  134  (1830)  ;  Forter  v.  Smith,  10  Wend.  (N.  Y.)  2>77  (1833)  ; 
Carter  v.  Hunter,  3  Ala.  30  (1841)  ;;  In  re  Toppan,  24  N.  H.  43  (1851)  ; 
Froitst  V.  Briiton,  15  Mo.  619  (1852)  ;  U'illson  v.  IVillson,  25  N.  H.  229,  57 
Am.  Dec.  320  (1852)  ;  Clark  v.  Compton,  15  Tex.  32  (1855)  -.Cook  v.  Skelton, 
20  111.  107,  71  Am.  Dec.  250  (1858)  ;  Hunt  v.  San  Francisco,  1 1  Cal.  250 
(1858)  ;  Whittey  v.  Douge,  9  Iowa  597  (1859)  ;  Creamer  v.  Dikeman,  39  N.  J. 
L.  195  (1877);  Billiard  v.  Sherwood,  85  N.  Y.  253  (1881)  ;  Banks  v.  Gay 
Mfg.  Co.,  108  N.  Car.  282,  12  S.  E.  741  (1891);  Hellen  v.  Steinwender,  28 
Fla.  191,  ID  So.  207  (1891)  ;  Martin  v.  New  York,  &c.,  R.  Co.,  62  Conn.  331, 
25  Atl.  239  (1892)  ;  Grinnell  v.  Bebb,  126  Mich.  137,  85  N.  W.  467  (iQoi)  ; 
Lenney  v.  Finlcy,  118  Ga.  427,  45  S.  E.  317  (1903)  ;  Parratt  v.  Hartsuff,  75 
Nebr.  706,  106  N.  W.  966  (1906)  ;  Wolf  v.  Powers,  144  111.  App.  168  (1908)  ; 
Brown  Con.  Co.  v.  Mac  Arthur  B.  Co.,  236  Mo.  41,  139  S.  W.  104  (1911)  ; 
Buck  V.  Citizens  C.  M.  Co.,  254  111.  198,  98  N.  E.  228  (1912).  Where  the 
claim  is  unliquidated  the  damages  must  be  proved.  Reigne  v.  Dewees,  2  Bay 
(S.  Car.)  405  (1802)  ;  William  v.  Cooper,  3  Dowl.  204  (1834)  ;  Webb  v.  Webb, 
16  Vt.  636  (1844)  ;  Rose  v.  Gallup,  2,2>  Conn.  338  (1866)  ;  Mississippi  R.  Co. 
V.  Green,  9  Heisk.  (Tenn.)  588  (1872)  ;  Ditnlap  v.  Horton,  49  Ala.  412  (1873). 
Otherwise  where  the  claim  is  liquidated,  Holdipp  v.  Otway,  2  Saund.  106 
(1669)  ;  Arden  v.  Connell,  5  B.  &  Aid.  885  (1822)  ;  (TNenl  v.  O'Neal.  4  Watts. 
&_S^PaJ.  130  (1842)  ;  Mass.  M.  L.  Co.  v.  Kellogg,  82  111.  614  (1876)  ;  Hart- 
man  v.  Farrior,  95  N.  Car.  177  (1886);  St.  Louis,  &c.,  Co.  v.  Zumwalt,  31 
Okla.  159,  120  Pac.  640  (1912).  And  see  as  to  assessment  of  damages,  23  Cyc. 
760;  6  Enc.  PI.  &Pr.  127. 

'^S.  C.  Hooker  v.  Quilter,  l  Wils.  171,  where  it  appears  that  the  action 
was  assumpsit,  the  first  three  counts  being  for  use  and  occupation  of  a  house 
of  plaintiff's  testator.  Judgment  was  by  nihil  dicit,  a  writ  of  inquiry  issued 
and  entire  damages  were  assessed. 

^'Smith  v.  Carley,  8  Ind.  451  (1856).  Assumpsit  on  a  promissory  note, 
the  declaration  failed  to  aver  that  defendant  was  the  maker  of  the  note  and 
that  the  note  was  unpaid.  Judgment  by  default  reversed.  Per  curiam:  "As 
34 — Civ.  Proc. 


530  jriH-.Mr.NT 

ArcKLROY  z:  Rl'.ADING 
Court  of  Common  Fleas,  rniLAPELPHiA,  j[87o 

7  PItila.    (Pa.)   433 

Sur  rule  to  strike  off  nonsuit.  Sitr  rule  to  strike  off  narr. 

Ludlow,  J.:  Judj:r"icnts  of  nonsuit  and  non  pros,  are,  in  modern 
practice,  different  ju(li::mcnts ;  the  former  involves  the  nonappear- 
ance on  call  of  the  plaintiff  on  the  trial,  or  such  a  defect  in  point 
of  law,  or  inadequacy  of  proof,  as  renders  it  either  impolitic  or 
impossible  for  the  plaintiff  to  proceed  with  the  suit;  a  judgment 
of  non  pros.,  especially  under  our  rule  of  court,  which  permits  a 
defendant  to  enter  such  a  judgment  if  a  narr.  is  not  filed  within 
a  year,  is  a  judgment  by  default  for  laches.  Under  our  rule  a  non 
pros,  may  be  entered  by  order  of  an  attorney  in  the  office  of  the 
clerk  of  the  court,  while  a  nonsuit  can,  only  at  the  trial,  be  suffered 
by  the  plaintiff,  or  be  ordered  by  the  court. 

In  this  case  a  nonsuit  was  by  mistake  ordered  by  defendant's 
attorney,  and,  as  the  parties  insist  upon  their  legal  rights,  this  judg- 
ment must  be  stricken  from  the  record ;  and  then  nothing  will  justify 
us  in  striking  oft*  the  narr.,  for  a  plaintiff  may,  at  any  time,  file  his 
narr.,  if  a  7ion  pros,  has  not  been  ordered  according  to  the  rule. 

Rule  to  strike  off  nonsuit  is  made  absolute.  Rule  to  strike  off 
narr.  is  discharged.^'* 


a  general  rule,  a  default,  re.crularly  taken,  admits  the  cause  of  action  ;  but,  then, 
there  must  be  a  declaration  or  complaint  containing  such  a  statement  of  facts 
as  will,  when  admitted,  in  point  of  law  authorize  a  judgment  against  the  de- 
fendant." 

Accord:  Collins  v.  Gibbs,  2  Burr.  899  (i7S9)  ;  Boivdell  v.  Parsons,  10  East. 
359  (1808)  ;  Randolph  v.  Cook,  2  Port.  (Ala.)  286  (1835)  ;  Huntress  v.  Effing- 
)tam,  17  N.  H.  584  (1845)  ;  Hall  v.  Jackson,  3  Tex.  305  (1848)  ;  Winston  v. 
Miller,  20  Miss.  550  (18.10)  ;  Hollis  v.  Richardson,  13  Gray  (Mass.)  392  (1859)  ; 
Griffith  V.  Clarke,  18  Aid.  4-,7  (1862);  Comm.  v.  Hoffman,  74  Pa.  St.  105 
(1873)  ;  McAllister  v.  Kuhn,  96  U.  S.  87,  24  L.  ed.  615  (1877)  ;  Argall  v.  Pitts, 
78  N.  Y.  239  (1879)  ;  Cragin  v.  Lovell,  109  U.  S.  IQ4,  27  L.  ed.  903  (1883)  ;  Har- 
vion  V.  Ashmcad,  60  Cal.  439  (18S2)  ;  Chaffin  v.  McFaddcn,  41  Ark.  42  (1883)  ; 
Johnson  v.  I\Iantz,  69  Iowa  710,  27  N.  W.  467  (1886) ;  Old  v.  Mohler,  122  Ind. 
594,  23  N.  E.  967  (1S89)  ;  Bond  v.  Djiliith  Milling  Co.,  55  Minn.  53,  56  N.  W. 
463  CiSq^")  Chestnut  Street  Bank  v.  £//a-  161  Pa.  St.  24L  28  Atl.  1082  (1894)  ; 
.Shields  v.  Clement,  12  'Alisc.  506,  33  ^-  ^'-  i^-  ^7^^.  67  N.  Y.  St.  376  (1895)  ; 
Schiieler  v.  Mueller,  193  111.  402,  61  N.  E.  1044  (iQoi)  ;  Gillian  v.  Gillian,  65 
S.  Car.  129,  43  S.  E.  386  (1902)  ;  Forsyth  y.  Stumhongh,  t^  Pn  D  R.  339 
(1903)  ;  U'erten  v.  Koosa,  169  Ala.  25s,  53  bo.  98  (1910)  ;  Gadsden  v.  Home 
Fertilizer  Co.,  89  S.  Car.  483,  72  S.  E.  15  (1911) ;  Davies  Exr.  v.  Louisville,  159 
Ky.  252,  166  S.  \V.  969  (1914).  In  assumpsit  for  goods  sold  and  delivered 
after  judgment  for  want  of  a  plea,  judgment  will  not  be  struck  off  because 
the  statement  omitted  to  lay  a  venue.  American  Mfg.  Co.  v.  S.  Morgan 
SmjSiIi.Co-,  25  Pa  Super.  Ct.  176  (1004). 

Where  on  default  damages  were  assessed  on  all  the  counts  and  one  was 
bad  on  general  demurrer,  judgment  was  reversed.  Dryden  v.  Dryden,  9  Pick. 
(Mass.)  546  (1830).  Contra:  Swearingen  v.  Bank,  13  Ohio,  200  (1844)  ;  Hunt 
V.  San    Francisco,  II  Cal.  250  (1858). 

"Judgment  of  non  prosequitur,  or  non  pros,  is  a  final  judgment  for  costs 
only,  signed  by  the  defendant,  whenever  the  plaintiff,  in  any  stage  of  the 
cause,  neglects  to  prosecute  his  suit,  or  part  of  it,  within  the  time  limited  by 


BRONSON    V.    SCIIULTEN  531 

SECTION  4.    AMENDMENT  OF  JUDGMENTS 

BRONSON  V.  SCHULTEN 

Supreme  Court  of  United  States,    i88i 

104  U.  S.  410 

Error  to  the  Circuit  Court  of  the  United  States  for  the  Southern 
District  of  New  York. 

The  plaintiffs  sued  Bronson,  as  collector  of  customs  for  the 
port  of  New  York,  to  recover  duties,  paid  under  protest,  in  excess 
of  the  amount  authorized  by  law  upon  seventy-four  entries  of 
goods  at  the  custom  house.  On  the  trial  there  was  a  verdict  for  the 
plaintiffs  fixing  the  precise  error  under  which  the  excessive  duty  had 
been  exacted  and  leaving  to  a  referee  the  determination  of  the 
actual  amount  due.  Upon  the  report  of  the  referee  judgment  was 
entered  August  5,  i860,  and  the  amount  paid  to  and  accepted  by 
the  plaintiffs.  It  subsequently  appeared  that  in  thirty-four  of  the 
entries,  for  which  claims  were  made,  the  sums  which  should  have 
been  allowed  the  plaintiffs  were  omitted  in  the  adjustment.  On  Jan- 
uary 26,  1877,  the  circuit  court  made  an  order  that  the  judgment 
be  vacated  and  the  assessment  of  damages  under  the  verdict  be 
referred  to  a  referee.  On  March  10,  1877,  the  referee  reported  that 
there  was  due  plaintiffs,  in  addition  to  what  had  been  paid  under 
the  judgment  set  aside,  the  sum  of  $1,205.90,  on  which  interest  was 
allowed  to  the  amount  of  $2,017.21.  For  tiiese  sums  judgment  was 
rendered.  To  reverse  this  judgment  the  present  writ  of  error  is 
brought.^^ 

Miller,  J. :  If  there  was  no  question  of  lapse  of  time,  or  of  tlie 
power  of  the  court  over  its  own  judgments  after  the  term  at  which 

the  rules  of  the  court  for  that  purpose.  2  Archbold's  Practice  (7  ed.)  1052; 
I  Tidd's  Practice  (9th  ed.)  458;  3  Bl.  Comm.  296;  Powell  v.  White,  I  Dougl. 
168  (1779)  ;  Thurston  v.  Murray,  3,  Binn.  (Pa.)  4i.'?  (1811)  ;  Howes  v.  Austin, 
35  111.  396  (1864);  Commonwealth  v.  Casey,  94  Mass.  214  (1866),  at  p.  218; 
Walton  V.  Lcfever,  17  Lane.  L.  R.  203  (1900)  ;  Wolf  v.  Stillman  Co.,  79  N.  J. 
L.  284,  75  Atl.  436  (1910).  In  some  states  nan  pros,  and  nonsuit  have  been 
used  as  convertible  terms.  Partlozv  v.  Elliott,  Meigs  (Tenn.)  547  (1838); 
Buena  Vista  Co.  v.  Parrish,  34  W.  Va.  652,  12  S.  E.  817  (1891). 

In  most  jurisdictions  the  term  non  pros,  is  no  longer  employed,  the  modern 
equivalent  being  judgment  of  dismissal  for  want  of  prosecution.  Whistler  v. 
Hancock,  L.  R.  3  Q.  B.  83  (1878)  ;  Script  Phonography  Co.  v.  Gregg,  59  L.  J. 
Ch.  406  (1890);  Davcy  v.  Bentinck,  L.  R.  (1893),  i  Q.  B.  185;  Rules  of 
Supreme  Court  (England),  order  27,  rule  i;  New  York  Code  Civ.  Proc., 
§  822;  Gross  v.  Clark,  87  N.  Y.  272,  i  Civ.  Proc.  464  (1881)  ;  Herb  v.  Metro- 
politan Hospital,  80  N.  Y.  App.  Div.  145,  80  N.  Y.  S.  552,  12  N.  Y.  Ann.  Cas. 
415  (1903)  ;  Finn  v.  Scottish  Union,  &c.  Ins.  Co.,  12>7  App.  Div.  60,  122  N. 
Y.  S.  Z7  O910)  ;  California  Code  C'w.  Proc.  §  583;  Mowry  v.  Weiscnborn, 
137  Cal.  no,  69  Pac.  971  (1902)  ;  People  v.  Renter,  88  111.  App.  586  (1899)  ; 
Anderson  v.  Broward,  45  Fla.  160,  34  So.  897  (1903)  ;  Colorado  Eastern  R.  Co. 
V.  Union  Pac.  R.  Co.,  94  Fed.  312  (1899). 

"The  statement  of  facts  is  abridged  from  the  opinion  of  the  court,  part 
of  which  is  omitted. 


53-  J^' 


HGMKXT 


they  arc  rciulcroU,  and  if  there  were  a  hill  m  chancery  to  set  aside 
this  iiulpnent  on  tlie  ground  of  mistake,  it  is  clear  that  no  reUef 
could  be  granted,  because  of  the  negligence,  carelessness,  and  in- 
attention and  laches  of  the  plaintilYs,  or  of  their  attorney,  in  the 
matter. 

Docs  tJie  power  of  tlic  court  over  its  own  judgments,  exercised 
in  a  summary  manner  on  motion,  after  the  term  at  which  it  was 
rendered,  extend  beyond  this? 

In  tliis  country  all  courts  have  terms  and  vacations.  The  time 
of  tlie  commencement  of  every  term,  if  there  be  half  a  dozen  a 
year,  is  fixed  by  statute,  and  the  end  of  it  by  the  final  adjournment 
of  the  court  for  that  term.  This  is  the  case  with  regard  to  all  the 
courts  of  the  United  States,  and  if  there  be  exceptions  in  the  state 
courts,  they  are  unimportant.  It  is  a  general  rule  of  the  law  that 
all  the  judgments,  decrees,  or  other  orders  of  the  courts,  however 
conclusive  in  tlieir  character,  are  under  the  control  of  the  court 
which  pronounces  them  during  the  term  at  which  they  are  rendered 
or  entered  of  record,  and  they  may  then  be  set  aside,  vacated,  modi- 
fied, or  annulled  by  that  court.*'- 

But  it  is  a  rule  equally  well  established,  that  after  the  term  has 
ended  all  final  judgments  and  decrees  of  the  court  pass  beyond  its 
control,  unless  steps  be  taken  during  that  term,  by  motion  or  other- 
wise, to  set  aside,  modify,  or  correct  them;  and  if  error  exists,  they 
can  only  be  corrected  by  such  proceeding  by  a  w-rit  of  error  or 
appeal  as  may  be  allowed  in  a  court  which,  by  law,  can  review  the 
decision.    So  strongly  has  this  principle  been  upheld  by  this  court. 


"^  "During  the  term  wherein  any  judicial  act  is  done,  the  record  remaineth 
in  the  breast  of  the  judges  of  the  court,  and  in  their  remembrance,  and  there- 
fore, the  roll  is  alterable  during  that  term  as  the  judges  shall  direct;  but  when 
that  term  is  past,  then  the  record  is  in  the  roll  and  admitteth  no  alteration, 
averment,  or  proof  to  the  contrary-."  Co.  Litt.  260;  Y.  B.  7  Hen.  VI  28; 
Y.  B.  9  Edw.  IV  3;  Blackamore's  Case,  8  Co.  156  (1610)  ;  A)wnymoiis,  3  Salk. 
31  (1694)  ;  Day  v.  U'ilber,  2  Caines  (N.  Y.)  258  (1804)  ;  Ncale  v.  Caldwell, 
3  Stew.  (.\la.)  134  (1830)  ;  Frink  v.  King,  4  111.  144  (1841)  ;  People  v.  Mayor 
of  Xew  York,  25  Wend.  (N.  Y.)  252  (1841)  ;  Huntington  v.  Finch,  3  Ohio 
St.  445  (1854);  Cooper  v.  Galhraith,  24  N.  J.  L.  219  (1853);  Robinson  v. 
Hartford  Co.,  12  Md.  132  (1S58)  ;  Mason  V.  Pearson,  118  Mass.  61  (1875)  ; 
King  v.  Brooks,  72  Pa.  St.  363  (1872)  ;  Lance  vBonnell,  loj^Pa.  St.  46  C1884)  ; 
Fralcy  v.  teat  her,  40  i\.  J.  1^.  429  (1884)  ;  .'ytate  v7  .'iozi^ers,  42  Kans.  312, 
22  Pac.  425  (1889)  ;  Ginrich  v.  Ginrich,  146  Ind.  227,  45  N.  E.  loi  (1896); 
Flickiuger  v.  Omaha  Bridge  &  R.  Co.,  98  Iowa  358,  67  N.  W.  372  (1869) ;  Anil 
V.  St.  Louis  Trust  Co.,  149  Mo.  I,  50  S.  W.  289  (1898)  ;  In  re  Hcrndon  Bpr- 
onqh.  IQ  Pa.  Super.  Ct.  127  (iQo:^)  ;  Bottineau  Land  &c.  Co.  v.  Hintze,''iSo 
Iowa  646,  125  N.  W.  842  (1911)  ;  Kansas  City  v.  Wocrishoeffcr,  249  Mo.  i,  155 
S.  W.  779  (1912)  ;  Carey  v.  Vickers,  38  Okla.  643,  134  Pac.  851  (1913). 

The  am.endment  of  judgments  and  orders  and  the  time  within  which 
such  power  may  be  exercised  is,  in  some  jurisdictions,  regulated  by  statute  or 
rule  of  court.  See  N.  Y.  Code  Civ.  Proc.  §§  724,  1282,  1283.  In  re  Henderson, 
IS7  X-  Y.  423,  52  N.  E.  183  (1898)  ;  Cooper  v.  Cooper,  57  App.  Div.  (N.  Y.) 
595  (1900);  Smith  V.  S7nith,  121  App.  Div.  480,  106  N.  Y.  S.  137  (1907); 
Heinitz  v.  Darmstadt,  140  App.  Div.  252,  125  N.  Y.  S.  109  (1910)  ;  Cal.  Code 
Civ.  Proc,  §§  473,  663;  Mississippi  Code  (1906),  §  1016;  Graves  v.  Fultoti,  7 
How.  (Miss.)  592  (1843).  For  England,  see  Rules  of  Supreme  Court,  order 
xxviii,  rule  ii ;  In  re  Suffied,  L.  R.  20  Q.  B.  Div.  693  (1888)  ;  Bright  v.  Sellar, 
L.  R.  (1904),  I  IC  B.  6;  Midr  v.  Jenks  L.  R.  (1913),  2  K.  B.  412. 


BRONSON    V.    SCIIULTEN  533 

that  while  reaHzing  that  tliere  is  no  court  which  can  review  its 
decisions,  it  has  invariably  refused  all  applications  for  rehearing 
made  after  the  adjournment  of  the  court  for  the  term  at  which  the 
judgment  was  rendered.  And  tliis  is  placed  upon  the  ground  that 
the  case  has  passed  beyond  the  control  of  the  court.  Brooks  v. 
Railroad  Company,  102  U.  S.  107;  Public  Schools  v.  Walker,  9 
Wall.  603 ;  Brozvn  v.  Aspden,  14  How.  25  ;  Cameron  v.  McRoberts,  3 
Wheat.  591;  Sihhald  v.  United  States,  12  Pet.  488;  United  States 
V.  The  Brig  Glamorgan,  2  Curt.  C.  C.  236 ;  Bradford  v.  Patterson, 
I  A.  K.  Marsh.  (Ky.)  464;  Ballard  v.  Davis,  3  J.  J.  Marsh.  (Ky.) 

656.  .  .      . 

But  to  this  general  rule  an  exception  has  crept  into  practice  m 
a  large  number  of  the  state  courts  in  a  class  of  cases  not  well  de- 
fined, and  about  which  and  about  the  limit  of  this  exception  these 
courts  are  much  at  variance.  An  attempt  to  reconcile  them  would 
be  entirely  futile.  The  exception,  however,  has  its  foundation  in 
the  English  writ  of  error  coram  vobis,  a  writ  which  was  allowed 
to  bring  before  the  same  court  in  which  the  error  was  committed 
some  matter  of  fact  which  had  escaped  attention,  and  which  was 
material  in  the  proceeding.  These  were  limited  generally  to  the 
facts  that  one  of  the  parties  to  the  judgment  had  died  before  it  was 
rendered,  or  was  an  infant  and  no  guardian  had  appeared  or  been 
appointed,  or  was  a  feme  covert  and  tlie  like,  or  error  in  the  process 
through  default  of  the  clerk.^^ 

In  Rolle's  Abridgment,  page  749,  it  is  said  that  if  the  error  be  in 
the  judgment  itself,  a  writ  of  error  does  not  lie  in  the  same,  but 
in  another  and  superior  court. 

In  Pickett's  Heirs  v.  Legerzvood,  7  Pet.  144,  this  court  said 
that  the  same  end  sought  by  that  writ  is  now  in  practice  generally 
attained  by  motion,  sustained,  if  the  court  require  it,  by  affidavits; 
and  it  was  added,  this  latter  mode  had  so  far  superseded  the  former 
in  the  British  practice,  that  Blackstone  did  not  even  notice  the  writ 
as  a  remedy. 

It  is  quite  clear  upon  the  examination  of  many  cases  of  the 
exercise  of  this  writ  of  error  coram  vobis,  found  in  the  reported 
cases  in  this  country,  and  as  defined  in  the  case  in  this  court  above 
mentioned,  and  in  England,  that  it  does  not  reach  to  facts  sub- 
mitted to  a  jury,  or  found  by  a  referee,  or  by  the  court  sitting  to 
try  the  issues ;  and  therefore  it  does  not  include  the  present  case. 

There  has  grown  up,  however,  in  the  courts  of  law  a  tendency 
to  apply  to  this  control  over  their  own  judgments  some  of  the  prin- 

•^i  Archbold's  Practice  (7th  ed.)  389;  Lcdgcrwood  v.  Pickett,  i  McLean, 
143,  Fed.  Cas.  No.  8175  (1831)  ;  Smith  v.  Kingslcy,  19  Wend.  (N.  Y.)  620 
(1838)  ;  Hurst  v.  Fisher,  l  Watts  &  S.  (Pa.)  438  (1841)  iSt^phensv.  Stephens. 
IPhila.  TPa.)  108^7  Leg,  int.  183  (18.S0)  ;  McKindley  v.  Buck,  43  111.  488 
TTH57)  ;  Mississippi  &  Tcnn.  R.  Co.  v.  Wynne,  42  Miss.  315  (1868);  Mc- 
Lemore  v.  Durivage,  92  Tenn.  482,  22  S.  W.  207  (1893)  ;  Brady  v.  Washington 
Ins.  Co.,  82  111.  App.  380  (i8q8)  ;  V^^vr*^^^'^  v  Virtue,  IX  Pa.  Super.  Ct.  10^ 
(1900)  ;  Consolidated  Coal  Co.  v.  Oeltjen,  189  111.  85,  59  N.  E.  600  (1901)  ; 
Dobbs  y.  State,  63  Kans.  321,  65  Pac.  658  (1901)  ;  Hadley  v.  Bernero,  103  Mo. 
App.  549,  78  S.  W.  64  (1903)  ;  Madden  v.  Ferguson,  182  111.  App.  2io  (1913)  ; 
Jeude  V.  Sims,  258  Mo.  26,  166  S.  W.  1048  (1914). 


534  JUDGMENT 

clplcs  of  tlio  courts;  of  c(iuity  in  cases  which  £:[o  a  liltlc  furtlicr  in 
aciniinistcrini::^  sunininrv  rehcf  than  tlic  old  fashioned  writ  of  error 
coram  z'obis  did.  This  practice  has  been  fonnded  in  the  courts  of 
many  of  the  states  on  statutes  which  conferred  a  prescribed  and 
limited  control  over  the  judgment  of  a  court  after  the  cxiViration 
of  the  term  at  which  it  was  rendered.  In  other  cases  the  summary 
remedy  by  motion  has  been  granted  as  founded  in  the  inherent 
power  of  the  court  over  its  own  judgments,  and  to  avoid  the  ex- 
pense and  delay  of  a  formal  suit  in  chancery.  It  can  easily  be  seen 
how  this  practice  is  justified  in  courts  of  the  state  where  a  system 
has  been  adopted  which  amalgamates  the  equitable  and  common  law 
jurisdiction  in  one  form  of  action,  as  most  of  the  rules  of  procedure 
do. 

It  is  a  profitless  task  to  follow  the  research  of  counsel  for  the 
defendants  in  error  through  the  numerous  decisions  of  the  state 
court  cited  by  them  on  this  point  in  support  of  the  action  of  the 
circuit  court.  The  cases  from  the  New  York  courts,  which  go 
farthest  in  that  direction,  arc  largely  founded  on  the  statute  of  that 
state,^*  and  we  are  of  opinion  that  on  this  point  neither  the  statute 
of  that  state  nor  the  decisions  of  its  courts  are  binding  on  the  courts 
of  the  United  States  held  there. 

The  question  relates  to  the  power  of  the  courts  and  not  to  the 
mode  of  procedure.  It  is  whether  there  exists  in  the  court  the 
authority  to  set  aside,  vacate,  and  modify  its  final  judgments  after 
the  term  at  which  they  were  rendered ;  and  this  authority  can  neither 
be  conferred  upon  nor  withheld  from  the  courts  of  the  United  States 
by  the  statutes  of  a  state  or  the  practice  of  its  courts. 

We  are  also  of  opinion  that  the  general  current  of  authority  in 
the  courts  of  this  country  fixes  the  line  beyond  which  they  can  not 
go  in  setting  aside  their  final  judgments  and  decrees,  on  motion 
made  after  the  term  at  w^hich  they  were  rendered,  far  within  tlie 
case  made  out  here.  If  it  is  an  equitable  power  supposed  to  be  here 
exercised,  we  have  shown  that  a  court  of  equity,  on  the  most  formal 
proceeding,  taken  in  due  time,  could  not,  according  to  its  established 
principles,  have  granted  the  relief  which  was  given  in  this  case. 

It  is  also  one  of  the  principles  of  equity  most  frequently  relied 
upon  that  the  party  seeking  relief  in  a  case  like  this  must  use  due 
diligence  in  asserting  his  rights,  and  that  negligence  and  laches  in 
that  regard  are  equally  effectual  bars  to  relief.*^^ 

As  we  have  already  seen,  nothing  hindered  the  plaintififs  from 
discovering  the  mistake  of  which  they  complain  for  seventeen  years, 
but  the  most  careless  inattention  to  the  proceeding  in  which  they 
had  claimed  these  rights  and  had  them  adjudicated. 


**Montgomery  v.  Ellis,  6  How.  Prac.  (N.  Y.)  326  (1851);  Wetmore  v. 
Law,  34  Barb.  (N.  Y.)  515,  22  How.  Prac.  130  (i860)  ;  In  re  Buffalo,  78  N.  Y. 
362  (1879)  ;  Furman  V.  Furman,  153  N.  Y.  30Q,  47  N.  E.  577,  60  Am.  St.  629 
(1897)  ;  IVeston  v.  Citiccn's  Nat.  Bank,  88  App.  Div.  330,  84  N.  Y.  S.  743 
(1903),  and  note  62  supra. 

^McBride  v.  Little,  115  Mass.  308  (1874)  ;  Cairo  &c.  R.  Co.  v.  Titus,  27 
N.  J.  Eq.  102  (1876)  ;  Perkins  v.  St.  Louis  &c.  R.  Co.,  143  Mo.  513,  45  S.  W. 
260  (1897)  ;  Gardener  v.  Van  Alstyne,  22  App.  Div.  579,  48  N.  Y.  S.  114 
(1S97J  ;  Heller  v.  Dyerville  Mfg.  Co.,  lit  Cal.  127,  47  Pac.  1016  (1897). 


BRONSON    V.    SCIIULTEN  535 

There  was  here  an  acquiescence  for  that  length  of  time  in  the 
correctness  of  a  judgment  which  had  been  paid  to  them,  when  tlie 
error,  if  any  existed,  only  needed  a  comparison  of  their  own  bill  of 
particulars  with  the  reports  of  the  referee,  to  be  seen,  or  at  least  to 
be  suggested.  Having  been  negligent  originally,  and  having  slept  on 
their  rights  for  many  years,  they  show  no  right,  under  any  sound 
practice  of  the  control  of  courts  over  their  own  judgments,  to  have 
•^hat  in  this  case  set  aside. 

Judgment  reversed.^* 

^'Accord:  Sailer  v.  Evans,  4  Burr.  1984  (1766)  ;  Curr'ie  v.  Henry,  3  Johns. 
(N.  Y.)  140  (1808)  ;  Killpatrick  V.  Rose,  9  Johns.  (N.  Y.)  78  (1812)  ;  Usher 

V  bansey,  4  M.  &  S.  94  (1815)  ;  Jiidson  v.  Blanchard,  3  Conn.  579  (1821)  : 
Catlin  V.  Robinson,  2  Watts  (Pa.)  373  (1834)  ;  Darling  v.  Giirney,  2  Dowl. 

loi  {1^33)  ;  Jackson  v.  Ashton,  10  Pet.  (U.  S.)  480,  19  L.  ed.  502  (1836)  ; 
Stephens  v.  Cou'an,  6  Watts  (PaJ.  5"  (1837);  Alters  v.  IVhitney,  i  Story 
310  Fed  Cas.  i\o.  137  (1840);  Wilkie  v.  Hall,  15  Conn.  32  (1842)  ;  Bank  of 
U  'S.  V.  Moss,  6  How.  (U.  S.)  31,  12  L.  Ed.  331  (1848)  ;  O'Conncr  v.  Mullen, 
II  111.  57  (1S49)  ;  Vllerv  V  r\nrh  iR  Pa.  St.  TiR  dS^il  ;  Baldzvin  v.  Kramer. 
2  Cal  582  (1S52)  ;  Coiiahran  v.  Gntchcus,  18  111.  390  (1857)  ;  State  v.  Disney, 
5  Sneed  (Tcnn.)  598  (1858)  ;  Layman  v.  Grayhill,  14  Ind.  166  (i860)  ;  Cook  v. 
Wood  24  111.  295  (i860);  Commomvealth  v.  Weymouth,  84  Mass.  144,  79 
Am  Dec  '776  (1S61)  ;  De  Castro  v.  Richardson,  25  Cal.  49  (1864)  ;  Undcrtt'ood 

V  Sledge,  27  Ark.  295  (1871)  ;  Foster  v.  Red  field,  50  Vt.  285  (1877)  ;  Fraley  v. 
Feather,  46  N.  J.  L.  429  (1884)  ;  Barrcll  v.  Tilton,  119  U.  S.  637,  30  L.  ed.  511 
(1886)  •  Radclyffe  v.  Barton,  1^4  Alass.  157,  28  N.  E.  148  (1891)  ;  Wiggins  v. 
Steiner,  103  Ala.  655,  16  So.  8  (1893)  ;  McGurry  v.  Wall,  122  Mo.  614,  27  S.  W. 
327  (1894)  ;  Dcering  v.  Qiiivey,  26  Ore.  556,  38  Pac.  710  (1895)  ;  Cornell  Um- 
versitv  \.  Parkinson,  59  I^ans.  365,  53  Pac.  138  (1898)  ;  United  States  v.  Fur 
Clippings.  106  Fed.  161  (1900);  Page  v.  Shields,  102  111.  App.  575  (1902); 
Perkins  v.  Casileberrv,  119  Ga.  702,  46  S.  E.  825  (1903)  ;  Wet  more  v.  Carrick. 
205  U  S.  141,  51  L.  Ed.  74^  (1906)  ;  Collins  v.  Hawkins,  77  Ark.  loi,  91  S.  W. 
26  (1905)  ;  Loeser  v.  Savings  Bank,  163  Fed.  212  (1908)  ;  United  States  v. 
New  York  Cent.  R.  Co.,  164  Fed.  324  (190S)  ;  Merri field  v.  Western  Cottage 
Piano,  &c.  Co.,  149  111.  App.  i  (1909)  ;  2elig  v.  Bine  Point  Oyster  Co.,  61  Ore. 
535  113  Pac.  852  (1911)  ;  Philip  Carey  Co.  v.  Vickers,  38  Okla.  643,  I34  Pac. 
851  (1913)  ;  Cramer  v.  Illinois  C.  M.  Assn.,  260  111.  516,  103  N.  E.  459  (1913)  ; 
Kendrick  v.  Williams,  157  Ky.  767,  164  S.  W.  72  (1914)- 

In  Penngylvania  "Jiidpments  by  confession  or  upon  default  remain  m- 
definitely  within  the  control  of  the  court,  and  upon  proper  cause  shown  may 
be  opened  up  or  vacated  at  any  time;  but  not  so  with  respect  to  judgments 
obtained  adversely.  The  power  com.mitted  to  the  discretion  of  the  court  with 
respect  to  the  latter  has  a  fixed  limitation."  Pennsylvania  Stave  Co.'s  Appeal, 
225  Pa.  178,  73  A\\.  1107  (1Q09);  Castle  v.  Reynolds,  10  Watts  (Pa.)  51 
(184c)  ;  Aheles  v.  Powell,  6  Pa.  Super.  Ct.  123  (1897)  ;  Dean  v.  Munhall,  11 
Pa.  Super.  Ct.  69  (1899)  ;  McCready  v.  Cans,  242  Pa.  364,  89  Atl.  459  (1913)- 
Such  control  as  the  court  may  thereafter  exert  over  the  judgment  is  m  the 
exercise  of  its  chancery  powers  alone,  and  is  exceptional.  Fisher  v.  Heston- 
ville  R.  Co.,  185  Pa.  St.  602,  40  Atl.  97  ( 1898)  ;  Ga::sam  v.  Reading,  202  Pa. 
23,  51  Atl,  1000  (1902);  Benson  v.  Railway  Co.,  232  Pa.  187,  81  Atl.  198 
(1911) ;  Wickel  v.  Mertz,  49  Pa.  Super.  Ct.  472  (1912). 


530  juix;mi:nt 


PURSLEY  V.  WICKLE 

ArrKLLATE  CoiKT  OK  TxniANA,  1891 

4  hid.  A  pp.  2,^i 

0\\  tlic  I4tli  of  Xovcmbcr,  1885,  in  the  Howard  Circuit  Court, 
W'icklc.  in  an  action  against  Pursley  for  dania.e^cs  on  account  of 
nllogvd  fraud  in  the  exchanj^^e  of  lands,  recovered  judgment  for  one 
dollar,  as  also  for  all  costs  by  him  laid  out  and  expended  not  there- 
tofore adjudged  against  him. 

At  the  ]\Iarch  term,  1890,  of  said  court,  Pursley  filed  a  "motion 
to  modify  and  correct"  said  judgment,  so  that  the  recovery  of  costs 
would  be  for  one  dollar  only. 

Counsel  for  Pursley  complained  that  in  the  rendering  of  the 
judgment  in  favor  of  the  appellee  for  costs,  and  which  it  is  now 
sought  to  modify,  section  592,  R.  S.  1881,  was  disregarded.  That 
section  is  as  follows : 

"In  all  actions  for  damages  solely,  not  arising  out  of  contract, 
if  the  plaintiff  do  not  recover  five  dollars  damages,  he  shall  recover 
no  more  costs  than  damages  except  in  actions  for  injuries  to  char- 
acter and  false  imprisonment,  and  where  the  title  to  real  estate 
comes  to  question." 

On  the  part  of  Wickle  it  was  insisted  that  whatever  may  be 
said  of  the  action  of  the  court  in  its  judgment  for  costs,  tliat  judg- 
ment could  not  now  be  amended  or  modified  upon  the  motion  made 
by  the  appellant. 

The  court  overruled  the  motion  and  appellant  excepted.^^ 

New,  J. :  It  is  well  settled  that  courts  have  the  power  to  correct 
mistakes  and  supply  omissions  in  their  records  whenever  and  wher- 
ever the  records  supply  the  means  of  making  such  corrections  or 
supplying  such  omissions.  Miller  v.  Royce,  60  Ind.  189;  Reily  v. 
Burton,  71  Ind.  118;  Chissom  v.  Barhour,  100  Ind.  i ;  i  Work's  Prac- 
tice, sections  714,  715,  716,  1030,  1031. 

This  power  is  inherent  and  belongs  to  the  court  as  such ;  it  does 
not  depend  upon  a  statutory  grant  of  jurisdiction,  i  Black  Judg- 
ments, section  161 ;  Freeman  Judgments  (3d  ed.),  section  71. 

The  authorities  all  hold  that  a  court  has  plenary  control  over 
its  orders,  judgments  and  decrees  during  the  term  at  which  they  are 
rendered.  Xor  is  it  only  in  respect  to  clerical  misprisions  or  omis- 
sions that  tliis  power  of  amendment  during  the  term  may  be  exer- 
cised; it  also  extends  to  the  errors  of  the  court,  for  during  the  term 
the  proceedings  are  in  all  respects  in  fieri. 

And  as  regards  mere  clerical  errors  arising  from  misprisions  of 
clerk,  it  is  always  in  the  power  of  the  court,  even  after  the  close 
of  the  term,  upon  motion  of  one  party  and  due  notice  to  the  other, 
to  correct  such  errors  where  a  showing  is  made  in  manner  and  form 
as  required  by  law  of  what  the  correction  should  consist. 

"The  statement  of  facts  is  abridged  from  the  opinion  of  the  court. 


PURSLEY   V.    WICKLE  537 

But  in  order  to  secure  stability  and  reliability  to  the  records  of 
the  courts  and  properly  guard  the  rights  of  parties  litigant  rules  of 
practice  have  grown  up  under  the  sanction  and  observance  of  the 
courts  w^hich  impose  important  limitations  on  their  power  to  modify 
or  amend  their  own  judgments. 

The  power  to  amend  judgments  upon  motion  and  notice  by 
making  additions  or  elisions  on  account  of  clerical  errors  after  the 
close  of  the  term  at  which  the  judgment  was  rendered  is  allowed 
only  for  the  purpose  of  making  the  record  conform  to  the  truth,  not 
for  the  purpose  of  revising  and  changing  the  judgment  actually 
rendered.  The  only  purpose  of  the  amendment  in  such  cases  is  to 
make  the  record  conform  to  the  very  judgment  pronounced  by  the 
court;  to  set  right  the  record  and  make  it  speak  the  truth,  so  that 
clerical  errors  shall  not  misrepresent  what  was  in  fact  the  action 
of  the  court.  The  rendition  of  a  judgment  and  the  entry  of  it  are 
different  and  distinct  from  each  other.  The  former  is  the  action  of 
the  court,  while  the  latter  is  the  act  of  the  clerk  of  the  court. 

Amendments  of  the  kind  we  are  speaking  of  are  not  allowed 
as  a  means  of  incorporating  into  a  judgment  a  mere  after-thought 
nor  as  a  means  of  modifying  or  enlarging  the  judgment,  so  that  it 
shall  express  something  which  the  court  did  not  do,  even  though 
the  proposed  amendment  embraces  matters  which  should  have  en- 
tered into  the  judgment  of  the  court. 

Amendments  upon  such  motions  are  not  permitted  to  perform 
the  office  of  appeal  or  writ  of  error,  or  as  a  method  of  reviewing 
the  judgment,  correcting  judicial  mistakes  or  substituting  a  judg- 
ment for  the  one  in  fact  rendered.  Ample  provision  had  been  made 
by  the  code  for  the  correction  of  judicial  errors  in  most  cases.  See 
Black  Judgments,  sections  153  to  160;  Freeman  Judgments  (3d  ed.), 
section  69  to  section  102;  Bole  v.  Newherger,  81  Ind.  274;  Hickman 
V.  Fort  Scott,  141  U.  S.  415  ;  Goucher  v.  Patterson,  94  111.  525  ;  Mer- 
rill y.  Shirk,  128  Ind.  503. 

The  appellant's  motion  is  not  to  reform  or  amend  the  judg- 
ment as  to  what  "seemeth  to  be  misprision  of  the  clerk  therein."  On 
the  contrary,  the  plain  purpose  of  the  motion  is  to  so  change  the 
judgment  that  it  shall  be  essentially  different  in  substance  from 
what  it  was  as  pronounced  and  different  from  what  it  was  intended 
to  be,  so  far  as  it  can  be  determined  from  anything  disclosed  in  the 
record  before  us.®^ 

Judgment  affirmed. 


^'Accord:  Y.  B.  9  Edw.  IV  3;  Anonymous,  Goldsb.  151  (1600)  ;  Anony- 
mous, Cro.  Jac.  213  (1609)  ;  Villars  v.  Parry,  i  Ld.  Raym.  182  (1696)  ;  Philips 
V.  Smith,  I  Str.  136  (1718)  ;  Foot  v.  Cady,  i  Root  (Conn.)  173  (1790); 
Taylor  v.  Starr,  2  Root  (Conn.)  293  (1795)  ;  Greene  v.  Coggswell,  3  Ohio  487 
(1828)  ;  Ballard  v.  Davis,  3  T-  J.  Marsh.  (Ky.)  6s6  (1830)  ;  Chambers  v. 
Hodges,  3  Tex.  517  (1848)  ;  lillcrv  y.  Clark.  18  Pa.  St.  148  (i8m)  ;  Morrison 
V.  Dapman,  3  Cal.  255  (1853)  ;  Whitivell  w.  Emory,  ^  Mich.  84,  59  Am.  Dec. 
220  (1853)  ;  Forqtier  v.  Forquer,  19  111.  68  (1857)  ;  Gove  v.  Lyford,  44  N.  H. 
525  (1863)  ;  De  Castro  v.  Richardson,  25  Cal.  49  (1864)  ;  Aetna  Life  Ins.  Co. 
V.  McCormick,  20  Wis.  265  (1866)  ;  Rogers  v.  Bradford,  8  Bush.  (Ky.)  163 
(1871)  ;  Wolfe  V.  Davis,  74  N.  Car.  597  (1876)  ;  Robinson  v.  Brown,  82  111.  279 
(1876)  ;  Blatchford  v.  Newberry,  100  111.  484  (1881)  ;  Browder  v.  Faulkner,  82 


538  JUIM^MKNT 

MASON  AND  OTHERS  7'.  FOX,  STEVENSON  &  THORPE 
Court  or  Kinu.'s  Bkncii,  i6ji 

Cro.  Jac.  63-''* 

Ejectment  in  the  common  pleas  of  a  lease  of  Robert  Tyrwhyt; 
and  judgnii^'iit  being  given  for  the  plaintiff  upon  a  verdict,  error  was 
thereof  brought  and  assigned,  because  the  judgment  was,  quod  re- 
cuperet versus  Franc'xscxim  Stephenson  possession  of  a  messuage, 
sixty  acres  of  land,  fifteen  acres  of  meadow,  and  fifteen  acres  of 
pasture ;  whereas  the  verdict  was  entered,  that  he  was  found  guilty 
of  the  ejectment  of  a  messuage,  ten  acres  of  meadow,  and  thirteen 
acres  of  pasture,  and  for  the  residue  not  guilty;  so  as  there  is  not 
any  land  in  the  verdict,  and  a  lesser  quantity  of  ineadow  and  pasture 
than  is  in  the  judgment.  And  it  was  moved  that  it  was  amendable; 
for  it  is  the  misprision  of  the  clerk,  who  ought  to  have  entered  the 
judgment  according  to  the  verdict,  and  the  paper  copy  for  entering 
the  judgment  was  right  enough ;  so  that  the  mis-enterings  of  it  upon 
the  roll  was  amendable  by  the  statute  of  8  Hen.  6,  ch.  12.  But  it  was 
objected  to  that  it  was  not  amendable ;  for  being  in  point  of  judgment, 
it  is  always  imputed  to  be  the  act  and  error  of  the  court,  and  not 
merely  the  default  of  tlie  clerk :  as  where  a  capiatur  is  entered  for  a 
uiisericordia,  or  a  Concessum  est  per  Curiam  where  it  should  have 
been  a  consideratum  est,  etc.,  it  hath  been  adjudged  to  be  error,  and 


Ala.  257,  3  So.  30  (1886)  ;  Knox  v.  Moser,  72  Iowa  154,  33  N.  W.  617  (1887)  ; 
Stannard  v.  Hubbel,  123  N.  Y.  520,  25  N.  E.  1084  (1890)  ;  Crew  v.JdcCafferty. 
124  Pa.  St.  2QO.  16  Atl.  7A^.  ID  Am.  St.  578  (1889)  ;  Egan  v.  hganTgo  Cal.  15, 
27  Fac.  22  ( 1891 )  ;  Radclyffe  v.  Barton,  134  Mas.s.  157,  28  N.  E.  148  (1891)  ; 
McKay  v.  Dcnnington,  82  Hun  509,  31  N.  Y.  S.  716,  64  N.  Y.  St.  394  (1894)  ; 
Hicklin  v.  Marco,  64  Fed.  609  (1894)  ;  Cleveland  Leader  Printing  Co.  v.  Green, 
52  Ohio  St.  487,  40  N.  E.  201,  49  Am.  St.  725  (1895)  ;  Heath  v.  New  York 
Bldg.  &c.  Bank.  Co.,  146  N.  Y.  260,  40  N.  E.  770  (1895)  ;  Griffith  v.  Maxwell, 
19  Wash.  614,  54  Pac.  35  (1898)  ;  Alay  v.  Stimson  Lumber  Co.,  119  N.  Car.  96, 
25  S.  E.  721  (1896)  ;  State  v.  Donovan,  10  N.  Dak.  203,  86  N.  W.  709  (1901)  ; 
Chicago  &c.  R.  Co.  v.  State,  159  Ind.  2t,7,  64  N.  E.  860  (1902)  ;  Rice  v.  Donald, 
97  Md.  396,  55  Atl.  620  (1903)  ;  Goldreyer  v.  Cronan,  76  Conn.  113,  55  Atl.  594 
(1903)  ;  Dunscomb  v.  Poole,  41  Misc.  335,  84  N.  Y.  S.  749  (1903)  ;  Pisa  v. 
Resek,  206  111.  344,  69  N.  E.  67  (1903)  ;  Day  v.  Mountin,  89  Minn.  297,  94 
N.  W.  887  (1903);  Mclnnes  v.  Sutton,  35  VVash.  384,  yy  Pac.  736  (1904)  ; 
Camplin  v.  Jackson,  34  Colo.  447,  83  Pac.  1017  (1905)  ;  Smith  v.  Smith,  121 
App.  Div.  480,  106  N.  Y.  S.  137  (1907)  ;  Olson  v.  Mattison,  16  N.  Dak.  231, 
112  N.  \V.  994  (1907);  Laugesen  v.  Sanford,  135  Wis.  252,  115  N.  W.  808 
(1908)  ;  Story  Mercantile  Co.  v.  McClcllan,  145  Ala.  629,  40  So.  123  (1906)  ; 
Boardman  v.  Hesseliine,  200  Mass.  495,  86  N.  E.  931  (1909)  ;  Forrester  v.  Laiv- 
ler,  14  Cal.  App.  171,  11 1  Pac.  284  (1910)  ;  Heinitc  v.  Darm.';tadt,  140  App.  Div. 
252,  125  N.  Y.  S.  109  (1910)  ;  Silliman  v.  Silliman,  66  Ore.  402.  133  Pac.  769 
(1913)  ;  Jnster  v.  Court  of  Honor,  120  Minn.  325.  139  N.  W.  701  (1913). 
Compare  Ehrhart's  Estate,  31  Pa.  Super.  Ct.  120  (1906).  and  see  Lewis  v. 
Linton.  24  Ha.  C".  Ct.  I8g  (looo).:'  Frit  chard  v.  Mines,  ^b  Ind.  App.~57i,~io6 
N.  E.  411  (1914).  So  also,  a  court  of  equity  will  not  interfere  with  a  judgment 
at  law  merely  because  it  is  erroneous.  Jacobs  v.  M orange,  47  N.  Y.  57  (1871)  ; 
Cros.f  V.  Gall.  6^  W.  Va.  276,  64  S.  E.  533  (1909)  ;  West  Chicago  Park  Comm. 
V.  Riddle,  151  111.  App.  487  C1909). 

"S.  C.  Anonymous,  W.  Jones,  9.   Part  of  the  case  is  omitted. 


MASOX   V.    FOX  539 

not  amendable.    And  thereupon  it  was  much   debated  whether  it 
might  be  amendable. 

All  the  justices  of  the  King's  Bench  and  Barons  of  the  Ex- 
chequer were  assembled  to  consider  thereof;  and  they  all  agreed 
and  resolved  (except  Tanfield,  Chief  Baron,  who  doubted  thereof, 
upon  divers  precedents  shown  to  them),  that  it  was  amendable,  and 
not  like  to  tlie  cases  put ;  for  the  entry  of  a  capiatur  instead  of  a 
misericordia  is  an  error  in  point  of  law,"°  and  can  not  be  imputed  to 
the  default  of  the  clerk,  the  clerk  having  nothing  to  induce  him  either 
ways;  but  here  the  verdict  is  the  guide  to  the  judgment,  and  the 
court  direct  the  judgment  to  be  entered  according  to  that  verdict ; 
for  the  judgment  is  but  the  consequent  of  the  verdict,  and  when  the 
verdict  is  before  the  clerk  to  enter  his  judgment,  it  is  but  his  mis- 
prision that  he  did  not  enter  it  according  to  the  verdict,  especially 
here,  when  the  entry  of  the  judgment  in  the  paper  is  according  to 
the  verdict,  and  the  entry  on  the  roll  is  in  another  manner  and  dis- 
agreeing from  the  verdict,  and  so  a  mere  misprision  of  the  clerk,  and 
no  default  in  the  court ;  wherefore  it  is  amendable.''^ 


■^"See  3  Bl.  Comm.  398.  By  the  statute  of  jeofails,  16  &  17  Car.  II,  ch.  8, 
a  capiatur  for  a  misericordia  was  made  amendable  after  verdict.  Anonymous, 
3  Mod.  112  (1686). 

"Accord:  Gyciivile  v.  Smith,  Cro.  Jac.  628  (1621)  ;  Aylesworth  V.  Chad- 
well,  Cro.  Car.  38  (1626)  ;  Anonymous,  I  Vent.  132  (1671)  ;  Cradock  v.  Rad- 
ford, 4  Mod.  371  (1604)  ;  Vcrelsfv.  Rafael,  Cowp.  425  (1776)  ;  Doe  v.  Perkins, 
3  T.  R.  749  (1790)  ;  Dunbar  v.  Hitchcock,  3  M.  &  S.  591  (1815).  "There  can 
be  no  doubt  that  it  is  competent  for  a  court  of  record,  under  its  general, 
inherent  and  necessary  authoritj^  to  correct  the  mistakes  and  supply  the 
defects  of  its  clerk  or  recording  officer,  so  as  to  have  the  record  conform  to 
the  actual  facts  and  truth  of  the  case,  and  that  this  may  be  done  at  any  time 
as  well  after  as  during  the  term  nutic  pro  tunc."  Balch  v.  Shaw,  61  Mass.  282 
(1851).  Accord:  Close  v.  Gillespey,  3  Johns.  (N.  Y.)  526  (1808)  ;  IValdo  v. 
Spencer,  4  Conn.  71  (1821)  ;  Chichester  v.  Cande,  3  Cow.  (N.  Y.)  39,  15  Am. 
Dec.  238  (1824)  •,Chaviherlain  v.  Crane,  4  N.  H.  115  (1827)  ;  Hall  v.  Williams, 
10  Maine  278  (1833)  ;  Hunt  v.  Allen,  22  N.  J.  L.  533  (1850)  ;  Fay  v.  Wcnzell, 
62  Mass.  315  (1851)  ;  Lewis  v.  Ross,  37  Maine  230,  59  Am.  Dec.  49  (1854)  ; 
Ohio  V.  Beam,  3  Ohio  St.  308  (1854)  ;  Smithy.  Hood,  25  Pa.  St.  218,  64  Am. 
Dec.  692  (1855);  Emery  v.  Whitwell,  6  JViich.  474  U«59^ ';  Biirson  v.  Blair, 
12  Ind.  371  (1859)  ;  State  v.  Dowd,  43  N.  H.  454  (1862)  ;  Doane  v.  Glenn,  i 
Colo.  454  (1872)  ;  Smith  v.  Kennedy,  63  Ala.  334  (1879)  ;  Bean  v.  Ayres,  70 
Maine  421  (1879)  ;  Ecker  v.  Bank,  64  Md.  292,  i  Atl.  849  (1885)  ;  Lci"^  v. 
Kennedy.  ■>\W^^^-  <'Pa,)  ^n?  (1876)  ;  Wiggin  v.  Superior  Court,  68  CaTr39B, 
9  Pac.  646  (1886)  ;  Cohn  y.  Scheuer.  11;  Pa.  St.  t78.  8  Atl.  421  (1886)  ;  Bohlen 
V.  Metropolitan  &c.  R.  Co.,  121  N.  Y.  546,  24  N.  E.  932  (1890)  ;  Hatton  v. 
Harris,  L.  R.  (1892)  App.  Cas.  547;  Hogue  v.  Corhit,  156  111.  540,  41  N.  E. 
219,  47  Am.  St.  232  (1895)  ;  Bostwick  v.  Van  I  leek,  106  Wis.  387,  82  N.  W. 
302  (1900)  ;  Stevenson  v.  Black,  168  Mo.  549,  68  S.  W.  909  (1902)  ;  Willard's 
Estate,  139  Cal.  501,  73  Pac.  240,  64  L.  R.  A.  554  (1903)  ;  litest  Chicago  Park 
Comrs.  V.  Boal,  232  111.  248,  83  N.  E.  824  (1908)  ;  Kreisel  v.  Snavery,  135  Mo. 
App.  155,  115  S.  W.  1059  (1908)  ;  Gage  v.  Weineck,  148  111.  App.  140  (1909)  ; 
_Keech  Co.  v.  O'Herron.  ii  Pa.  Super.  Ct.  108  (1Q09)  ;  Brown  v.  Clark,  81 
"Conn.  562,  71  Atl.  727  (1909)  ;  Strodi  v.  Stafford  Co.,  65  Misc.  625,  121  N.  Y.  S. 
93  (1910)  ;  Clark  v.  Scovill,  198  N.  Y.  279,  91  N.  E.  800  (1910)  ;  Schloss  v. 
Lennon,  123  Minn.  420,  144  N.  W.  148  (1913)  ;  Green  v.  Commonwealth,  152 
Ky.  239,  153  S.  W.  242  (1913)- 


t^40  JUDGMENT 

SECTION  5.     OPENING  AND  VACATING  JUDGMENTS 

DEERING  V.  QUIVEY 

Supreme  Court  or  Oregon,  1895 

26  Ore.  556 

This  is  an  action  by  William  Dccring  &  Company  against  the 
partnership  of  Creighton  &  Quivey,  and  comes  here  on  appeal  from 
an  order  of  the  Circuit  Court  of  Benton  County  vacating  a  judgment 
of  that  court,  and  permitting  the  defendants  to  file  an  answer.  The 
transcript  shows  that  a  demurrer  to  the  complaint  having  been 
overruled,  the  defendants  refused  to  further  plead  or  answer,  and 
judgment  was  on  April  14,  1892,  rendered  against  them.  It  also 
appears  from  the  affidavit  of  their  attorney,  filed  on  November  25th 
of  that  year,  that  they  had  a  valid  and  meritorious  defense  to  the 
action,  but,  believing  that  said  demurrer  constituted  a  legal  defense, 
suffered  judgment  to  be  rendered  against  them,  intending  to  test 
the  issue  of  the  law  raised  thereby  upon  appeal  to  this  court;  and 
that  he,  for  such  purpose,  in  proper  time,  prepared  a  notice  of 
appeal,  and  took  it  to  the  office  of  the  sheriff  of  the  said  county  for 
service,  but  finding  said  officer  absent  therefrom,  left  it  with  the 
deputy  clerk,  who  promised  to  deliver  it  to  the  sheriff  upon  his  re- 
turn. Believing  said  notice  had  been  served,  the  appeal  was  other- 
wise perfected,  and  the  transcript  filed  in  this  court.  The  cause  was 
set  for  hearing,  and  he  prepared  a  brief  therefor,  but  did  not  dis- 
cover that  said  notice  had  not  been  served  until  after  November 
23d,  which  was  too  late  to  take  an  appeal.  He  also  filed  with  said 
affidavit  copies  of  said  notice,  and  the  undertaking  on  appeal,  and 
tendered  an  answer  duly  verified  by  the  defendants,  and  moved  the 
court  to  set  aside  and  vacate  said  judgment,  and  permit  said  answer 
to  be  filed.  This  motion  was  on  June  5,  1893,  granted,  and  an  order 
made  by  the  court  vacating  said  judgment,  and  permitting  said 
answer  to  be  filed,  from  which  order  and  judgment  the  plaintiffs 
appeal.''^ 

Moore,  J.:  The  statute  provides  that  the  court  "may,  in  its  dis- 
cretion, and  upon  such  terms  as  may  be  just,  at  any  time  within 
one  year  after  notice  thereof,  relieve  a  party  from  a  judgment  taken 
against  him  through  his  mistake,  inadvertence,  surprise,  or  ex- 
cusable neglect."  Hill's  Code,  section  102.  It  can  not  be  success- 
fully contended  that  there  was  any  mistake,  inadvertence,  surprise, 
or  excusable  neglect  on  the  part  of  the  defendants  when  they  elected 
to  rely  upon  their  demurrer  to  the  complaint,  and  suffered  judg- 
ment to  be  rendered  against  them  for  want  of  answer.  "A  motion 
or  proceeding,"  says  Mr.  Black  in  his  work  on  judgments,  section 
330,  "to  vacate  or  set  aside  a  judgment  can  not  be  sustained  on  any 

"Part  of  the  opinion  of  the  court  is  omitted. 


DEERIXG  V.    QUIVEY  541 

grounds  which  might  have  been  pleaded  in  defense  to  tlie  action,  and 
could  have  been  so  pleaded  with  proper  care  and  diligence."  Relief 
will  not  be  granted  when  a  party  has  knowingly  acquiesced  in  the 
judgment  complained  of,  or  has  been  guilty  of  laches  and  unreason- 
able delay  in  seeking  his  remedy.  Craig  v.  Worth,  47  Md.  281 ; 
Elder  v.  Bank  of  Lawrence,  12  Kans.  242.  The  defendants  had  an 
opportunity  to  plead  to  the  complaint,  but  they  voluntarily  declined 
to  do  so,  and  consented  to  and  knowingly  acquiesced  in  the  judg- 
ment which  was  rendered.  The  liberal  provisions  of  the  statute 
above  quoted  are  intended  for  the  benefit  of  those  who,  by  reason  of 
any  of  the  causes  there  assigned,  have  not  had  their  day  in  court. 
The  defendants,  having  had  this  right,  can  not  claim  any  relief  under 
that  section  of  the  statute. 

The  remedy,  if  there  is  any  in  this  case,  must  be  based  upon  the 
inherent  right  of  every  court  of  record  to  correct,  modify,  or  vacate 
its  judgments  and  decrees.  This  right,  however,  exists  only  while 
the  proceedings  of  the  court  remain  in  the  breast  of  the  judges, 
or  during  the  term  at  which  the  judgment  or  decrees  was  rendered; 
and  at  the  close  of  such  term  all  final  proceedings  had  therein 
become  conclusive,  and  the  court  loses  jurisdiction  of  them.  Free- 
man on  Judgments  (3d  ed.),  section  69.  "When  a  final  judgment," 
says  Pleasants,  J.,  in  Brewster  v.  Nor  fleet  (Texas  Civ.  App.),  22 
S.  W.  226,  "has  been  rendered  in  a  cause,  and  the  term  of  the  court 
has  expired,  the  jurisdiction  of  the  court  over  the  subject  matter  of 
litigation  is  gone;  and  the  court  has  no  power  to  set  aside  the  judg- 
ment, and  to  hear  the  case  anew,  for  the  purpose  of  correcting  errors 
committed  upon  the  former  trial."  This  was  the  rule  of  the  common 
law  and,  unless  modified  by  statute,  still  prevails  in  most  of  the 
courts.'^^ 

Reversed. 


"It  is  generally  held  that  in  the  absence  of  statutory  authority,  a  court  has 
no  power  to  open,  vacate  or  set  aside  a  final  judgment  obtained  adversely, 
after  the  expiration  of  the  term  at  which  such  judgment  was  rendered. 
Cameron  v.  McRoberts,  3  Wheat.  (U.  S.)  591,  4  L.  ed.  467  (1818)  ;  Lampsett 
V.  Whitney,  4  111.  170  (1841)  ;  Slatter  v.  Glover,  14  Ala.  648,  48  Am.  Dec.  118 
(1848);  Blair  V.  Russell,  i  Ind.  516  (1849);  Cook  v.  Wood,  24  111.  293 
(i860)  ;  Spafford  v.  Janesville,  15  Wis.  474  (1862)  ;  Lattimer  v.  Ryan,  20  Cal. 
628  (1862) ;  Hall  v.  Paine,  47  Conn.  429  (1880)  ;  Donnell  v.  Hamilton,  77  Ala. 
610  (1884)  ;  Gilbert  Arnold  Land  Co.  v.  O'Hare,  93  Wis.  194,  67  N.  W.  38 
(1896)  ;  Jones  v.  New  York  Life  Ins.  Co.,  14  Utah  215,  47  Pac.  74  (1896)  ; 
Hill  v.  Eaan^Q  W.  N.  C.  (Pa.)  267  (1806)  ;  Schmidt  v.  Rehwinkel,  86  111. 
App.  267' (i?m)^DearLJL.Jdimhall.  11  Pa.  Super  Ct.  6q_(i8qo)  :  Chicago  v. 
Nicholes,  192  111.  489,  61  N.  E.  434  (1901)  ;  Turner  v.  Davis,  12,2  N.  Car.  187, 
43  S.  E.  637  (1903);  People  v.  District  Court,  2>2>  Colo.  405,  80  Pac.  1065 
(1905)  ;  Curtiss  v.  Bell,  131  Mo.  245,  in  S.  W.  131  (1908) ;  Ayres  v.  Ander- 
son Tully  Co.,  89  Ark.  160,  116  S.  W.  199  (1909)  ;  McCreadv  v.  Gatis,  242  Pa. 
.364,  89  Atl.  4=^0  (1913)  ;  Tryon  v.  Pennsylvania  R.  Co.,  213  Fed.  49  (1914)". 

In  a  number  of  states  statutes  provide  that  the  courts  may  within  a  pre- 
scribed time  (frequently  a  year)  relieve  a  party  from  a  judgment  or  order 
taken  against  him  through  his  mistake,  inadvertence,  surprise  or  excusable 
neglect.  New  York  Code  Civ.  Proc,  §  724;  California  Code  Civ.  Proc,  §  473; 
Ohio  Gen.  Code  (i9io),§  11631.  A  party  seeking  relief  under  such  statutes  must 
show  good  and  sufficient  reasons  for  failing  to  defend  at  the  proper  time. 
Cowton  v.  Anderson,  i  How.  Prac.  (N.  Y.)  145  (1845)  ;  Milwaukee  Mut.  Loan 
&c.  Soc.  V.  Jagodzinski,  84  Wis.  35,  54  N.  W.  102  (1893)  ;  Mitchell  v.  Allen, 


54-  JUDGMENT 

ANONYMOUS 

Supreme  Court  ok  Nkw  York,  1826 

6  Coze.  (N.  v.)  390 

T.  A.  Collier,  for  the  defendant,  moved  to  set  aside  a  default  for 
want  of  a  plea,  on  the  ground  of  merits. 

H.  P.  Hunt,  contra,  read  an  affidavit  showing  that  by  reason  of 
the  defendant's  doubtful  circumstances,  the  plaintiff  would  be  in 
danger  of  losing  his  debt,  unless  the  judgment  w^as  suffered  to  stand 
as  security. 

Curia.  Let  the  defendant  plead  and  go  to  trial  on  payment  of 
costs;  the  judginent  to  remain  as  security. 

Collier.  Do  the  court  mean  the  cost  of  resisting  the  motion 
merely,  or  the  costs  of  the  default  and  subsequent  proceedings  also? 

Curia.   Both  must  be  paid.   The  plaintiff  is  entitled  to  them  as  a 


no  Ga.  2S2,  34  S.  E.  851  (1899).  In  New  York  it  is  held  that  the  court  has 
power,  independently  of  the  statutes,  to  set  aside  judgments  improperly  ob- 
tained; the  only  limitation  is  that  the  motion  must  be  within  one  year. 
Weston  V.  Citizens'  Nat.  Bk.,  88  App.  Div.  330,  84  N.  Y.  S.  743  (1903)  ; 
Clark  V.  Scovill,  198  N.  Y.  279,  91  N.  E.  800  (1910). 

The  principle  has  been  applied  to  mistakes  of  fact.  Cannon  v.  Reynolds, 
5  El.  &  Bl.  301  (1855)  ;  Capcn  v.  Stoughton,  82  Mass.  364  (i860)  ;  Mead  v. 
Morris,  21  Wis.  310  (1867)  ;  Kimball  v.  Kclton,  54  Vt.  177  (1881)  ;  Bahcock 
V.  Day,  104  Pa.  St.  4  (1883)  :  Keith  v.  McCaffrey,  145  Mass.  18,  12  NTET.  419 
ri887)  ;  Sargent  v.  Kindred,  5  N.  Dak.  8,  63  N.  W.  151  (1905)  ;  Wright  v. 
Krabbenhoft,  104  Minn.  460,  116  N.  W.  940  (1908)  ;  Litlnianian  Soc.  v.  Tunila, 
80  Conn.  642,  70  Atl.  25  (1908)  ;  Hilt  V.  Hcimbcrger,  235  111.  235,  85  N.  E.  304 
(1908).  Compare  demons  v.  rield,  99  N.  Car.  400,  6  S.  E.  790,  6  Am.  St.  529 
(1888);  Lou-e  V.  Hamilton,  132  Ind.  406,  31  N.  E.  1117  (1892);  Devlin  v. 
Boyd,  69  Hun  328,  23  N.  Y.  S.  523,  53  N.  Y.  St.  247  (1S93).  Also  to  accident 
and  neglect  excusable  under  the  circumstances.  Sage  v.  Matheny,  14  Ind.  369 
(i860)';  Atzvood  V.  Chichester,  3  Q.  B.  Div.  722  (1878);  Davis  Estate,  15 
Mont.  347,  39  Pac.  292  (1804)  ;  Grady  v.  Donahoo,  108  Cal.  211,  41  Pac.  41 

(1895)  ;  Thompson  v.  Connell,  31  Ore.  231,  48  Pac.  467,  65  Am.  St.  818  (1897)  ; 
Ennis  V.  Fourth  Nat.  Bk.,  102  Iowa  520,  71  N.  W.  426  (1897) ;  Oueal  v.  Bulen, 
89  Minn.  477,  95  N.  \V.  310  (1903)  ;  Boyd  v.  Williams,  70  N.  J.  L.  185,  56  Atl. 
135  (1903)  ;  Capital  Fire  Ins.  Co.  v.  Davis,  85  Ark.  385,  108  S.  W.  202  (1908)  ; 
Lichier  v.  Seitznian,  121  N.  Y.  S.  609  (1910)  ;  Robinson  v.  Carmichael,  134 
Ga.  654,  68  S.  E.  582  (1910).  Compare,  where  the  excuses  were  insufficient, 
Shaffer  v.  Sutton,  49  111.  506  (1869);  Prager  v.  Beardsley,  133  App.  Div. 
592,  118  N.  Y.  S.  232  (1909)  ;  Kachel  v.  Stiitz,  137  App.  Div.  199,  121  N.  Y.  S. 
979  (1910)  ;  Gainsville  v.  Johnson,  59  Fla.  459,  51  So.  852  (1910);  Gurske  v. 
Britt,  86  Nebr.  312,  125  N.  W.  539  (1910). 

As  to  negligence  of  counsel  see  17  A.  &  E.  Encyc.  of  Law  (2d  ed.)  833  and 
compare  Kreite  v.  Kreite,  93  Ind.  583  (1883)  ;  Butler  v.  Morse,  66  N.  H.  429 
23  Atl.  90  (1891);  Amherst  College  v.  Allen,  165  Mass.  178,  42  N.  E.  570 

(1896)  ;  Saut^t)  V.  J-laniaan,  7  Pa.  Dist.  R.  604^(1898)  ;  Morris  v.  IVofford,  114 
Ga.  935,  41  S.  E.  56  (1902)  ;  Eggleston  v.  Royal  T.  Co.,  205  111.  170,  68  N.  E.  709 
(1903)  ;  Alfcrits  v.  Cahcn,  145  Cal.  397,  78  Pac.  878  (1904)  ;  Barlow  v.  Burns, 
70  N.  J.  L.  631,  57  Atl.  262  (1904)  ;  Fisher  v.  Hcnning  (Tex.  Civ.  App.),  164 
S.  W.  913  (1914),  with  Philips  v.  Hawley,  6  Johns.  (N.Y.)  129  (1810)  ; 
Sharp  V.  New  York,  31  Barb.  578  (i860)  ;  Densereau  v.  Salliant,  22  R.  I.  500, 
48  Atl.  668  (1901)  ;  Brand  v.  Baker,  42  Ore.  426,  71  Pac.  320  (1903)  ;  Lenz  v. 
Rowe,  66  N.  J.  L.  131,  48  Atl.  525  (1901)  ;  Van  Cott  v.  Wcbb-Millcr.  2^  Pa. 
Super.  Ct.  51  (1904)- 


LUDWIN    V.    SIANO  543 

consequent  of  the  default ;  and  at  all  events.    Were  this  otherwise, 
the  plaintiff  would  lose  these  costs  altogether,  if  he  should  not  suc- 
ceed. We  do  not  mean  his  obtaining  them  should  in  any  way  depend 
on  the  event  of  the  suit. 
Rule  accordingly.^* 


CHARLES  LUDWIN  v  GUSEPPE  SIANO 
Supreme  Court  of  New  York,  1901 

36  Misc.  (N.  Y.)  537 

Appeal  by  the  plaintiff  from  an  order  made  by  tlie  Municipal 
Court  of  the  city  of  New  York,  second  district,  borough  of  Manhat- 
tan, vacating  a  judgment  and  discharging  the  defendant  from  arrest 
and  imprisonment. '^^ 

McAdam,  p.  J. :  On  the  return  day  of  the  summons  botli  parties 
appeared.  The  plaintiff  declined  to  pay  the  clerk's  trial  fee,  where- 
upon the  justice  dismissed  the  complaint.  The  defendant  then  de- 
parted from  the  court-room,  whereupon  the  plaintiff  paid  the  trial 
fee  and,  concealing  the  fact  that  It  was  the  same  case  in  which  the 
justice  had  granted  such  dismissal,  took  from  the  justice  a  judg- 
ment as  upon  the  defendant's  default,  with  a  provision  adjudging 
the  defendant  liable  to  arrest  and  imprisonment.  The  defendant  was 
incarcerated  under  the  execution  issued,  whereupon  he  obtained 
from  the  justice  an  order  to  show  cause  why  the  proceedings  should 
not  be  set  aside.  The  justice,  after  hearing  the  parties,  decided  that 
a  fraud  upon  the  court  had  been  committed,  vacated  the  judgment 
and  execution  and  discharged  the  defendant  from  further  imprison- 
ment.   The  propriety  of  the  order  can  not  be  questioned,  but  the 

'^In  opening  a  judgment  and  allowing  the  defendant  a  hearing  on  the 
merits  the  court  may  impose  equitable  terms  as  a  condition  precedent  to  grant- 
ing relief.  Anonymous,  3  Doug.  431  (1784)  ;  Larimer  v.  Liile,  I  Chitty,  Rep. 
134  (1879)  ;  Cash  v.  Wells,  I  B.  &  Ad.  375  (1830)  ;  Livingston  v.  Livingston, 
3  Johns.  (N.  Y.)  254  (1808)  ;  Denton  v.  Noyes,  6  Johns.  (N.  Y.)  296,  5  Am. 
Dec.  237  (1810)  ;  Pier  son  v.  Hohnan,  5  Blackf.  (Ind.)  482  (1840)  ;  Bailey^v. 
Clayton,  20  Pa.  St.  29.'^  (.^^•''3)  '  Blodget  v.  Conklin,  9  How.  Prac.  (NrY.T  442 
(1854)  ;  Mottv.  Union  Bank,  8  Bosw.  591  (1861)  ;  McMurray  v.  Erie,  59  Pa, 
St.  223  (1868)  ;  McTague  v.  Pennsylvania  &  N.  E.  R.  Co.,  44  N.  J.  L.  62 
(1882)  ;  Huston  Tt>.  &c.  Ins.  Co.  v.  Beale,  lio  Pa,,St._32l^  Atl.  926  (1885)  ; 
Exley  v.  Bcrryhill,  36  Minn.  117,  30  JNl.  VV.  436  (1886)  ;  Missouri  Pac.  R.  Co.  v, 
Linson,  39  Kans.  416,  18  Pac.  498  (1888)  ;  Bond  v.  Neusclnvander,  86  Wis.  391, 
57  N.  W.  54  (1893)  ;  Law  v.  O'Regan,  T79  Mass.  107,  60  N.  E.  397  (1901)  ; 
Chicago  v.  English,  198  111.  211,  64  N.  E.  976  (1902)  ;  Shenstone  v.  Wilson,  117 
App.  Div.  752,  102  N.  Y.  S.  1037  (1907)  ;  Friedland  v.  Commonivealth  F.  Ins. 
Co.,  136  App.  Div.  6,  120  N.  Y.  S.  126  (1909)  ;  Heiliger  v.  Ritter,  78  Misc.  264, 
138  N.  Y.  S.  212  (1912).  The  payment  of  accrued  costs  may  be  imposed.  .Sistcd 
V.  Lee,  I  Salk.  402  (1704)  ;  Roland  v.  Kreyenhagen,  18  Cal.  455  (1861)  ;  N orris 
V.  Dodge,  23  Ind.  190  (1864)  ;  Flanigan  v.  Thompson,  4  W-  N.  Cas.  (Pa.)  74 
(1877)  ;  Ueland  v.  Johnson,  77  Minnr543,  80  N.  W.  700,  77  Am.  ^t.  698  (1899)  ; 
Goodness  v.  Metropolitan  S.  R.  Co.,  49  App.  Div.  76,  63  N.  Y.  S.  476  (1900)  ; 
Bloor  V,  Smith,  112  Wis.  340,  87  N.  W.  870  (1901);  Kressh  v.  Novick,  162 
App.  Div.  891,  148  N.  Y.  S.  55  (1914), 

"Part  of  the  opinion  is  omitted. 


c;  |.j.  JUDGMENT 

iustico's  power  to  make  It  is  challcnj::ed,  the  plaintiff  claiming  that  he 
can  only  open  a  juclj::ment  and  not  vacate  one. 

This  court  has  hclil  that  a  justice  of  the  municipal  court  has 
]>owcr  in  a  i>ropcr  case  to  vacate  a  judi^mcnt  for  want  of  jurisdiction 
under  the  amendment  of  1896,  ch.  748.    Sccrlip  v.  Baier,  21  Misc. 

Rep.  331. 

The  only  availahle  objection  to  the  order  is  that  it  allowed  ten 
dollars  cost's  on  granting  the  motion,  which  the  municipal  court  has 
no  statutory  power  to  allow.  The  order  will,  therefore,  be  modified 
by  striking  out  the  ]>rovision  as  to  ten  dollars  costs  and  as  modified 
affirmed,  with  costs."^ 


IN  RE  COLLEGE  STREET 

Supreme  Court  of  Rhode  Island,  1877 

II  R.  I.  472 

Motions  to  vacate  assessments  for  benefit  made  in  the  matter  of 
the  widening  of  College  street.  The  assessments  were  made  by  com- 
missioners appointed  by  the  court  tmder  an  act  of  1854  relating  to 
streets  in  the  city  of  Providence,  and,  upon  the  filing  of  their  report, 
notice  was  given  and  the  report  was  subsequently  confirmed  by  the 
court.  It  appeared  that,  by  an  act  of  1873,  the  power  to  assess  for 
benefits  had  been  taken  away  from  such  commissioners  and  that 
the  report  in  so  far  as  it  reported  assessments  was  unauthorized  and 
void.'^ 

DuRFEE,  C.  J.:  The  report  was  confirmed  at  the  March  term, 
1874.   The  motions  were  not  filed  until  tlie  October  term,  1874,  or 

"The  court  may  open  or  vacate  a  judgment  procured  by  collusion  or 
fraud  uhere  the  court  has  been  imposed  upon,  or  a  party  deprived  of  his  day 
in  court  without  fault  on  his  part  or  that  of  his  counsel.  Binsse  v.  Barker,  13 
N  J  L.  263,  23  Am.  Dec.  720  (1832)  ;  Bell  v.  Kelly,  17  N.  J.  L.  270  (1830)  ; 
Cnrhrnn  v.  Eldridne.  40  Pa.  St.  36.'^  (1865)  ;  Gillespie  v.  Ront,  39  111.  247  ( 1866)  ; 
JTa\herry  v.  McClurg,  sT'IVIo.  256  (1873)  ;  Dngan  v.  McGlann,  60  Ga.  353 
(1878)  ;  Zellcrhach  v.  Allcnhcrg,  67  Cal.  296,  7  Pac.  908  (1885)  ;  Taylor  v. 
Sharp,  8  Manitoba  163  (1892)  ;  O'Neill's  Estate,  90  Wis.  480,  63  N.  W.  1042 
(1895)  •  Larson  v.  Williams,  100  Iowa  no,  63  N.  W.  464,  69  N.  W.  441,  62 
Am.  St.  544  (1896)  ;  Adams  School  Tp.  v.  /rzc'tw,  150  Ind.  12,  49  N.  E.  806 
(1897);  Furman  v.  Furman,  153  N.  Y.  309,  47  N.  E.  577,  60  Am.  St.  629 
(1897)  ;  Rivers  v.  West,  103  Ga.  582,  30  S.  E.  555  (1897)  ;  Cotterall  v.  Kaon, 
151  Ind  182,  51  N.  E.  235  (1898)  ;  Bates  v.  Hamilton,  144  Mo.  I,  45  S.  W. 
641  66  Am.  St.  497  (1898)  ;  Nugent  v.  Metropolitan  St.  R.  Co.,  46  App.  Div. 
105'  61  N  Y.  S.  476,  7  N.  Y.  Ann.  Gas.  193  (1899)  ;  Wright  v.  Simpson,  200 
111  'c6  65  N.  E.  628  (1902)  ;  Pelts  v.  Bollinger,  180  Mo.  252,  79  S.  W.  146 
(1903)  ;  Kcyes  v.  Brackelt,  187  Mass.  306,  72  N.  E.  986  (1905)  ;  French  v. 
Raymond,  82  Vt.  156,  72  Atl.  324  (1909)  ;  Wade  v.  Watson,  133  Ga.  608,  66 
S  E  922  (1909)  ;  United  States  v.  Aakervik,  180  Fed.  137  (1910)  ;  Wagner  v. 
Beadle,  82  Kans.  468,  108  Pac.  859  (1910)  ;  Miller  v.  Barto,  247  111.  104,  93 
N  E  140  (1910)  ;  Roberts  v.  Pratt,  152  N.  Car.  731,  68  S.  E.  240  (1910)  ; 
IVickel  v.  Mertc.  40  Pa.  Suoer.  Ct.  472  (1012!:  Moore  v.  Moore,  139  Ga.  597, 
77  S.  E.  820  (1913)-  ,    ,  .  .  r    u 

"The  statement  of  facts  is  abridged  from  a  part  oi  the  opmion  ot  the 

court. 


IN    RE    COLLEGE    ST.  545 

later.  Ordinarily  the  court  has  no  power  over  its  judgments,  to  alter 
or  annul  them  upon  mere  motion  after  the  close  of  the  term  at  which 
they  were  rendered.  It  is  claimed,  however,  in  support  of  the  mo- 
tions, that,  while  this  is  ordinarily  so,  yet  the  rule  has  its  exceptions, 
and  that  judgments  may  be  set  aside  on  motion  after  the  term  at 
which  they  were  entered,  when  they  are  irregular,  or  void  for  want 
of  jurisdiction.   The  cases  support  this  claim. '^^ 

In  Hervey  &  Co.  v.  Edmunds,  68  N.  C.  243,  the  court  say  that 
a  judgment  void  for  want  of  jurisdiction  of  the  subject  matter  may 
be  set  aside  or  stricken  from  the  records  ex  niero  motu,  or  at  the 
instance  of  any  person  interested  in  having  it  done.  In  that  case 
the  motion  was  made  several  terms  after  the  entry  of  the  judgment. 
It  was  refused;  not,  however,  because  made  too  late.  In  For  men 
et  at.  V.  Carter  et  al.,  9  Kans.  674,  the  opinion  of  the  court  was 
that  a  void  judgment  can  be  set  aside  at  any  time  on  motion.  In 
Crane  Adm'r  v.  Barry,  47  Ga.  476,  the  court  entered  judgment  on 
an  award,  having  power  to  transform  a  statutory  award  into  a  judg- 
ment. At  a  subsequent  term  the  court  set  the  judgment  aside  on 
motion,  holding  it  to  be  void  upon  the  ground  that  the  award  was  not 
statutory,  but  simply  a  common  law  award.  In  Shuford  v.  Cain, 
I  Abb.  U.  S.  302,  a  judgment  rendered  by  a  United  States  Circuit 
Court,  in  a  cause  over  which  it  had  no  jurisdiction  under  the  Judi- 
ciary Act,  was  set  aside  by  the  court  on  motion  at  a  subsequent  term 
as  a  nullity.  See  also  Camion  v.  Reynolds,  5  El.  &  B.  301. 

We  think  the  cases  abundantly  show  our  authority  to  grant  the 
motions.  We  think,  too,  the  motions  ought  to  be  granted ;  for  though 
our  decree  is  void,  it  is  not  necessarily  innocuous.  Under  the  act 
of  1854  the  assessments  are  not  enforced  by  execution  issuing  out 
of  this  court,  but  are  added  to  the  taxes  of  the  persons  whose  estates 
are  assessed,  and  are  a  lien  upon  those  estates.  In  the  case  at  bar 
the  assessments  have  been  added  to  the  taxes.  This  has  been  done 
under  the  sanction  of  our  decree.  The  persons  whose  estates  are 
clouded  by  the  assessments,  and  who  are  threatened  with  their  col- 
lection, move  us  to  vacate  the  decree  and  the  report  confirmed  by  it, 
in  so  far  as  they  purport  to  confirm  or  report  any  assessments 
against  them. 

Assessments  vacated.^^ 


"Citing  Hooe  v.  Barber,  4  Hen.  &  M.  439  (1809)  ;  Holmes  v.  Howie,  8 
How.  Pr.  (N.  Y.)  383  (1851)  ;  Keaton  v.  Banks,  10  Ired.  (N.  Car.)  381,  51 
Am.  Dec.  393  (1849)  ;  Ex  Parte  Crenshaw,  15  Pet.  (U.  S.)  119,  10  L.  ed.  682 
(1841);  Harris  v.  Hardeman,  14  How.  (U.  S.)  344,  14  L.  ed.  449  (1852); 
Wood  V.  Luse,  4  AlcLean  254,  Fed.  Cas.  No.  17950  (1847)  ;  Franks  v.  Lockey, 
45  Vt.  395  (1873)  ;  Hallett  v.  Righters,  13  How.  Pr.  (N.  Y.)  43  (1S56)  ;  Piii 
V.  Davison,  27  Barb.  (N.  Y.)  97  (1861)  ;  Dedcrick  v.  Richley,  19  Wend. 
(N.  Y.)  108  (1838)  ;  Manufacturers  &c.  Bank  v.  Boyd,  3  Den.  (N.  Y.)  257 
(1846);  Reynolds  v.  Stanshury,  20  Ohio  344,  55  Am.  Dec.  459  (1851)  ; 
Winslow  V.  Anderson,  3  Dev.  &  B.  (N.  Car.)  9,  32  Am.  Dec.  651  (183S)  ; 
Cityy.  Boyd,  50  111.  453  (1869)  ;  Cowles  v.  Hayes,  69  N.  Car.  406  (1873). 

"*A  void  judgment,  or  a  judgment  rendered  in  proceedings  materiaHy 
irregular,  may  be  vacated  or  set  aside  after  the  time  when  ordinarily  it  would 
become  final.  Page  v.  South,  2  D.  &  L.  108  (1844)  ;  Anlaby  v.  Praetorius, 
L.  R.  20  Q.  B.  Div.  764  (1888)  ;  Hunt  v.  Yeatman,  3  Ohio,  15  (1827)  ;  Hunt- 
ington V.  Finch,  3  Ohio  St.  445  (1854)  '>  Downing  v.  Still,  43  Mo.  309  (1869)  - 

35 — Civ.  Prog. 


540  JUDGMENT 

SECTION  6.    COLLATERAL  ATTACK 

(a)   Personal  Actions 

ANONYMOUS 

Court  of  Exchequer,  1364 

Liber  Assisanim,  38  Edw.  Ill  21" 

Certain  men  were  outlawed  in  the  King's  Bench  in  the  time 
of  Shard elowe^'^  and  their  chattels  were  forfeited.  And  the  names 
of  the  men  so  outlawed  were  sent  into  the  Exchequer  with  the 
amount  of  their  goods,  among  whom  there  was  a  man,  sent  with 
the  others  by  misprision  of  a  clerk,  who  was  not  outlawed,  who  had 
chattels  to  the  value  of  £6.  And  a  writ  issued  to  the  sheriff  where 
the  chattels  were  to  levy  them  to  the  use  of  the  King,  who  returned 
that  a  lord  had  seized  the  said  goods,  and  thereupon  a  writ  issued 
to  him  out  of  the  Exchequer  to  make  him  reply  to  the  King  concern- 
ing the  said  goods,  who  came  and  alleged  that  the  said  man  whose 
goods  he  had  in  his  hands  was  not  outlawed.  And  upon  this  came 
parcel  of  record  of  the  King's  Bench  by  writ  which  was  issued 
out  of  Chancery.  And  Green^^  came  with  the  defendant  into  the 
Exchequer  and  testified  that  he  was  not  outlawed,  but  it  was  a  mis- 
prision of  the  clerk. 

Skipwith.^^  Although  all  the  justices  wished  to  declare  other- 
wise, when  they  had  the  record  before  them  they  should  not  be 
received.^* 


Olney  v.  Harvey,  50  111.  453,  99  Am.  Dec.  530  (1869)  ;  Foreman  v.  Carter,  9 
Kans.  674  (1872)  ;  Lucy  v.  Dowling,  114  Mass.  92  (1873)  ;  White  v.  Coulter, 
59  N.  Y.  629  (1874)  ;  Giiyer  v.  Giiyer,  6  Houst.  (Del.)  430  (1881)  ;  Dohbms 
V.  McNamara,  113  Ind.  54,  14  N.  E.  887.  3  Am.  St.  626  (1887)  ;  Pantallv. 
Dirkpy,  \2X  Pa.  St.  4^1,  16  Atl.  780  (1889)  ;  Mueller  v.  Rcimer,  46  Mmn.  314, 
48I7TW.  1 120  (1S91);  Dalton  V.  West  End.  S.  R.  Co.,  159  Mass.  221,  34  N.  E. 
261,  38  Am.  St.  410  (1893);  People  v.  Temple,  103  Cal.  447,  Z7  Pac.  414 
(1894)  ;  Maiirys  v.  Fitzivatcr,  88  Fed.  768  (1898)  ;  Rorer  v.  People's  Bldg.  &c. 
Assn.,  47  W.  Va.  i,  34  S.  E.  758  (1899)  ;  Union  C.  Co.  v.  Leffler,  122  Ga.  640, 
50  S.  E.  483  (1905)  ;  Kerns  v.  Morgan,  11  Idaho  572,  83  Pac.  954  (1905)  ; 
Mj^rrnfd  v  Tlninn  Tp.  Poor  Dist..  <?i  Pa.  Suner.  Ct.  4;^  (1906)  ;  Shmnake  v. 
SKiimake,  17  Idaho  649,  107  Pac.  42  (1910)  ;  Lushington  v.  Seattle  A.  &  D. 
Co.,  60  Wash.  546,  III  Pac.  785  (1910);  Dorian  v.  First  Catholic  Slovak 
lhtlnti^^iV^__F^ir^r   Ct,  Tip  (1912')  ;  3  Blackst.  Comm.  406. 

'HTansTated  from  TotteH's  Edition  of  1561 ;  S.  C.  Brooke's  Abridgment, 
Record  45. 

"John  de  Shardelowc,  justice  of  the  Common  Bench  and  King's  Bench, 
died  1344  (Foss.). 

"Henr>-  Green,  chief  justice  of  the  King's  Bench,  1362  (Dugdale,  Foss.). 

"William  de  Skipwith,  chief  baron  of  the  Exchequer,  1363,  Dugdale, 
Foss.). 

^"And  the  rolles  being  the  records  or  memorialls  of  the  judges  of  the 
court  of  record,  import  in  them  such  uncontrollable  credit  and  veritie,  as  they 
admit  no  averment,  plea  or  proofe  to  the  contrarie."  Co.  Litt.  269,  Har.  &  B. 
Ed.  See  also  Y.  B.  3  Edw.  II,  Trin.  4  ch.  155  (S.  S.)  ;  Y.  B.  27  Hen.  VI 
2lb;  Y,  B.  7  Hen.  VII  4;  Verney  v.  Digman.  Dyer  89b  (i553)  ;  Wright  v. 


PALMER   V.    BOArOD    &C.    ESSEX    COUNTY  547 


NICHOLAS  F.  PALMER,  EXECUTOR,  v.  THE  BOARD  OF 

CHOSEN  FREEHOLDERS  OF  THE  COUNTY 

OF  ESSEX 

Supreme  Court  of  New  Jersey,  1908 
yy  N-  J-  L.  143 

On  the  rule  to  show  cause  why  a  writ  of  mandamus  should  not 
issue. 

The  facts  established  by  the  proofs  taken  under  this  rule  are: 
That  the  relator,  on  November  19,  1907,  instituted  an  action  in  the 
Essex  County  Circuit  Court  against  the  board  of  chosen  freeholders 
of  the  county  of  Essex,  by  the  issue  of  a  summons  on  that  day  re- 
turnable December  6,  1907.  Declaration  was  attached  to  and  served 
with  the  summons  November  20,  1907.  On  December  10,  1907, 
judgment  by  default  for  want  of  a  plea  was  duly  entered  and  execu- 
tion has  been  issued  thereon  and  returned  unsatisfied  by  tlie  sheriff. 

After  entry  of  the  judgment  application  was  made  to  tlie  circuit 
court  to  open  it  because  improvidently  entered,  and  because  the 
defendant  had  a  legal  defense  in  the  statute  of  limitations,  which 
application  v/as  refused.  Thereupon  this  rule  was  obtained^^  requir- 
ing the  said  board  of  freeholders  and  tlie  individual  members  thereof 
to  show  cause  why  a  peremptory  or  alternative  writ  of  mandamus 
should  not  issue  commanding  them  to  add  to  the  amount  to  be  raised 
by  taxation  for  current  expenses,  etc.,  for  the  coming  year,  an 
amount  sufficient  to  pay  the  execution,  and  commanding  them  to 
order  the  county  auditor  and  collector  to  pay  to  tlie  petitioner  the 
amount  of  the  execution  out  of  any  funds  in  their  hands  belonging  to 
the  board  of  freeholders, 

VooRHEES,  J.:  The  issuance  of  the  writ  asked  for  is  resisted 
upon  several  grounds,  each  of  which  is  an  attack  upon  tlie  judgment. 
It  is  well  settled  that  where  a  court  of  general  jurisdiction  has 
jurisdiction  of  the  subject  matter  and  has  acquired  jurisdiction  over 

Wickam,  Cro.  Eliz.  468  (i595)  ;  Hyndes  Case,  4  Coke  70b  (1590);  Rams- 
bottom  v.  Buckhurst,  2  M.  &  S.  565  ( 1814)  ;  Croswell  v.  Byrnes,  9  Johns.  290 
(1812)  ;Selin  v.  Snyder,  7  Serg.  &  R.  (Pa.)  i66  (1821)  ;  In  re  Conrsen's  Will, 
4  N.  J.  Eq.  408  (1843)  ;  McCarthy  v.  Marsh,  5  N.  Y.  263  (1851)  ;  Walker  v. 
Armour,  22  III.  658  (1859);  Hahn  v.  Kelly,  34  Cal.  391,  94  Am.  Dec.  742 
(1867)  ;  Kemper  v.  Waverly,  81  111.  278  (1876)  Ferguson  v.  Kumler,  25  Minn. 
183  ( 1878)  ;  Kostenbader  v.  Kuebler,  iqq  Pa.  246.  48  Atl.  972,  85  Am.  St.  783 
(1901). 

"A  judgment  can  not  be  collaterally  attacked  in  proceedings  for  its 
enforcement.  Porter  v.  Rountree,  in  Ga.  369,  36  S.  E.  761  (1900)  ;  Toomeyy. 
Rosanskv.  11  Pa.  Super.  Ct.  w6  (1800").  and  the  principle  is  applicable  to  pro- 
ceedings  by  mandamus  to  compel  a  municipal  corporation  to  provide  for  the 
payment  of  a  judgment.  Harshman  v.  Knox,  122  U.  S.  306,  30  L.  ed.  1152 
(1886)  ;  Edmundson  v.  Independent  School  Dist.,  98  Iowa  639,  67  N.  W.  671, 
60  Am  St.  224  (1896)  ;  Bear  v.  Brunswick,  122  N.  Car  434,  29  S.  E.  719,  65 
Am.  St.  711  (1898)  ;  Tucker  v.  Iluhhcrt,  196  Fed.  849,  117  C.  C.  A.  365  (1912). 
But  it  may  be  shown  that  the  court  was  without  jurisdiction.  Moore  v.  Edge- 
field, 32  Fed.  498  (1887)  ;  Brownsville  v.  Loagtie,  129  U.  S.  493,  32  L.  ed.  780 
(1888). 


5-}S  JUIX-.MKNT 

the  person  of  the  dcfciidanl,  its  judgment  is  invincible  against  col- 
lateral attack.  It  is  only  where  there  is  lack  of  jurisdiction  in  one 
or  both  of  the  above  particulars  that  the  judgment  is  void  and  may 
be  so  treated  in  a  collateral  proceeding/*^  Wcstcott  v.  Danzcnbakcr, 
I  llalst.  13 J ;  Win  Dyke  v.  Bastcdo,  3  Gr.  224;  Godfrey  v.  Myers, 
3  Zab.  197;  Iless  V.  Cole,  Id.  116;  National  Docks  Co.  v.  Pennsyl- 
I'an'ia  Railroad  Co.,  7  Dick.  Ch.  Rep.  58;  Podesta  v.  Binns,  3  Robb. 

Jurisdiction  will  be  presumed  in  cases  of  domestic  judgments  of 
courts  of  general  jurisdiction.^^    Miller  v.  Diingan,  6  Vroom.  389. 

The  defendants  insist  that  the  record  discloses  upon  its  face 
that  tlie  judgment  was  improvidcntly  and  prematurely  entered,  and 
hence  is  void.  The  reasoning  of  the  defendants  on  this  subject  is 
that  tlic  statute  of  1846  (Gen.  vStat,  pp.  408,  410)  requires  the 
service  of  summons  issued  against  a  board  of  chosen  freeholders 
to  be  made  "thirty  days  at  least  before  tlie  session  of  the  court  to 
which  such  process  is  returnable,"  and,  as  such  service  was  not  made 
in  this  case,  the  judgment  is  a  nullity.  There  would  be  no  merit  in 
this  contention  if  the  above  statute  was  impliedly  repealed  by  sec- 
tion 52  of  tlie  Practice  Act.  Roache  v.  Jersey  City,  11  Vroom  257. 

But,  assuming  the  premature  entry  of  tlie  judgment,  that  fact 
does  not  render  it  void.  It  will  stand  until  reversed  or  set  aside.^^ 
Hoey  V.  Aspell  &  Co.,  33  Vroom  200. 


**"'\Vhcre  a  court  lias  jurisdiction,  it  lias  a  right  to  decide  every  question 
which  occurs  in  the  cause;  and  whether  its  decision  be  correct  or  otherwise, 
its  judgment,  initil  reversed,  is  regarded  as  binding  in  every  other  court.  But, 
if  its  acts  without  authority,  its  judgments  and  orders  are  regarded  as  nulHties. 
They  are  not  voidable,  but  simply  void ;  and  form  no  bar  to  a  recovery  sought, 
even  prior  to  a  reversal  in  opposition  to  them.  They  constitute  no  justifica- 
tion ;  and  all  persons  concerned  in  executing  such  judgments  or  sentences, 
are  considered,  in  law,  as  trespassers."  Elliott  v.  Peirsol,  1  Pet.  (U.  S.)  328 
(1828)  ;  Lucy  v.  Dcas,  59  Fla.  552,  52  So.  515  (1910)  ;  Miller  v.  Rowan,  251  111. 
344,  95  N.  E.  2S5  (1911)  ;  Johnson  v.  North  Star  Lumber  Co.,  206  Fed.  624 
(1913).  See  Brooke's  Abr.,  Error  177,  187;  Viner's  Abr.  Judgment,  G.,  a.;  2() 
Lib.  Ass.  26;  Y.  B.  22  Edw.  IV  30,  31.  Compare  Y.  B.  19  Edw.  IV  8;  Gold 
V.  Strode,  Carth.  148  (1690). 

*' Accord:  Foot  v.  Stevens,  17  Wend.  (N.  Y.)  483  (1837);  Bridgeport  v. 
Blinn,  43  Conn.  274  (1876)  ;  Hering  v.  Chambers,  lop,  Pa.  St.  172  (1883)  ; 
O'Connor  v.  Felix,  87  Hun  (TTTYJ  179,  33  JN.  Y.  S.  1074,  67  N.  T.  St? 777 
(1895)  ;  Hereford  v.  People,  197  111.  222,  64  N.  E.  310  (1902)  ;  Menagcr  v.  Dc 
Leonis,  140  Cal.  402,  73  Pac.  1052  (1903)  ;  Wilkins  v.  McCorkle,  112  Tenn.  688, 
80  S.  W.  834  (1904)  ;  Forrest  v.  Fey,  218  111.  740,  75  N.  E.  789,  i  L.  R.  A. 
(N.  S.)  740  and  note  (1905);  Flowers  v.  Reece,  92  Ark.  611,  123  S.  W. 
773  (1909).  As  to  the  application  of  the  principle  where  the  service  of 
process  is  constructive  compare  Cadmus  v.  Jackson, ^2  Pa.  St.  205  (1866)  ; 
Adams  v.  Cowlcs,  95  Mo.  501,  8  b.  W.  711,  0  Am.  St.  74  (1888)"^  Flardy  v. 
Beaty,  84  Tex.  562,  19  S.  W.  778,  31  Am.  St.  80  (1892)  ;  Sweeny  v.  Girolo,  154 
Pa.  St.  609,  26  Atl.  600  (1893)  ;  Hunter  v.  Ruff,  47  S.  Car.  525,  25  S.  E.  65, 
s8  Am.  St.  907  (1896)  ;  Co-operative  Savings  &c.  Loan  Assn.  v.  Mcintosh,  105 
Iowa  697,  75  N.  W.  520,  with  Hallett  v.  Salter,  13  How.  Pr.  (N.  Y.)  43  (1856)  ; 
Galpin  v.  Page,  18  Wall.  (U.  S.)  350,  21  L.  ed.  959  (1873)  ;  Ferguson  v.  Craiv- 
ford,  86  N.  Y.  609  (1881)  ;  Schissel  v.  Dickson,  129  Ind.  139,  28  N.  E.  540 
(1891)  ;  Button  v.  Smith,  10  App.  Div.  566,  42  N.  Y.  S.  80,  4  N.  Y.  Ann.  Cas. 
25  (1896)  ;  Parsons  v.  JVcis,  144  Cal.  410,  77  Pac.  1007  (1904),  and  see  Pen- 
noyer  v.  Neff,  95  U.  S.  714,  24  L.  ed.  565  (1877)  ;  Martin  v.  Martin,  214  Pa.  389, 
63  Atl    1026  (1906),  as  to  nonresidents.  ^ 

"Accord :  Myers  v.  Clark,  3  Watts  &  S.   (Pa.)  S35  ( 1842)  ;  IVhitzvell  v. 


PALMER   v.    BOARD    &C.    ESSEX    COUNTY  549 

Irregularities  in  proceedings  in  court  of  general  jurisdiction 
as  against  collateral  attack  are  cured  by  judgment  {Apel  v.  Kelsey, 
52  Ark.  341;  Fischer  v.  Holmes,  123  Ind.  525),  which  is  fatal  to 
the  objection  that  in  actions  against  boards  of  freeholders  the  statute 
does  not  permit  a  declaration  to  be  served  with  the  summons.  If 
the  provisions  of  section  95  of  the  Practice  Act  (Pamph.  L.  1903, 
P-  537) >  include  municipal  corporations  defendant,  this  objection 
has  no  foundation.  Dock  v.  Elicabethtown  Manufacturing  Co., 
5  Vroom  312,  and  Cooper  v.  Cape  May  Point,  38  Vroom  437,  are 
cases  which  point  to  this  construction. 

Nor  can  it  be  successfully  urged  that  because  the  declaration 
on  its  face  exhibits  a  cause  of  action  barred  by  the  statute  of  limita- 
tions, it  is  equivalent  to  stating  no  cause  of  action  whatever.  Such 
is  the  contention  of  the  defendant.  The  statute  does  not  obliterate 
the  cause  of  action.  This  defense  may  be  waived.  To  be  availed 
of  it  must  be  pleaded.^^  Christie  v.  Bridgman,  6  Dick.  Ch.  Rep.  331 ; 
Peer  v.  Cookerotv,  2  Beas.  136;  West  Hoboken  v.  Syms,  20  Vroom 
546. 

These  are  matters  that  should  be  addressed  to  the  court  in  which 
the  judgment  was  entered  and  that  were  correctly  decided  by  it  in 
refusing  to  open  judgment,  and,  while  we  have  considered  them, 
they  can  not  be  availed  of  as  a  means  of  collateral  attack  upon  the 
recovery. ®° 

Rule  absolute. 


Barhier,  7  Cal.  54  (1857)  ;  White  v.  Croiv,  no  U.  S.  183,  28  L.  ed.  113  (1883)  : 
Wells  V.  Atkins,  68  Vt.  191,  34  Atl.  694,  54  Am.  St.  880  (1896)  ;  Brezuing  Asso- 
ciation V.  McGozvan,  49  La.  Ann.  630,  21  So.  766  (1897). 

^'Accord:  Cox  v.  Thomas,  9  Grat.  (Va.)  323  (1852). 

'"Accord:  Rex  v.  Vincent,  i  Str.  481  (1721)  ;  Duchess  of  Kingston's  Case, 
20  St.  Tr.  335  (1776) ;  Commonwealth  v.  Morrison,  4  Bibb.  (Ky.)  336  (1816)  ; 
^Orphans'  Court  v  Groff,  14  Serg.  &  R.  (Pa.)  181  (1826)  ;  Elliott  v.  Pcirsol, 
I  Fet.  (U.  b.)  z^'S,  7  L.  ed.  164  (1828)  ;  Buell  v.  Cross,  4  Ohio,  327  (1831)  ; 
Vandyke  v.  Bastedo,  15  N.  J.  L.  224  (1836)  ;  Voorhees  v.  Bank  of  U.  S.,  10 
Pet.  (U.  S.)  449,  9  L.  ed.  490  (1836)  ;  Wright  v.  Marsh,  2  G.  Gr.  (Iowa)  94 
(1849)  ;  Bnckmastcr  v.  Rider,  12  111.  207  (1850)  ;  Billings  v.  Russell.  2^  Pa^SL 
189.  62  Am.  Dec.  330  (1854)  ;  Morrozv  v.  Weed,  4  Iowa  yj,  66  Am.  Dec.  122 
(1856)  ;  Sears  v.  Terry,  26  Conn.  273  (1857);  Hendrick  v.  Whittemore,  105 
Mass.  23  (1870)  ;  Martin  v.  McLean,  49  Mo.  361  (1872)  ;  Lancaster  v.  Wilson, 
27  Grat.  (Va.)  624  (1876)  ;  Hume  v.  Little  Flairock  Draining  Assn,  72  Ind. 
499  (1880)  ;  Ottersonv.  Middleton.  102  Pa.  St.  78  (i8g-^)  ;  Hunting  v.  Bhm, 
143  N.  Y.  511,  38  N.  E.  716  (1894)  ^Pcarse  v.  Hill,  163  Mass.  493,  40  N.  E. 
765  (189s)  ;  Corey  v.  Morrill,  71  Vt.  51,  42  Atl.  976  (1898)  ;  Hall  v.  Sanntry, 
72  Minn.  420,  75  N.  W.  720,  71  Am.  St.  497  (1898)  ;  In  re  McNeil's  Estate, 
15s  Cal.  2,32,,  100  Pac.  1086  (1909)  ;  Bickford  v.  Bickford,  74  N.  H.  448,  69  Atl. 
579  (1908)  ;  Point  Pleasant  v.  Greenlee,  63  W.  Va.  207,  60  S.  E.  601,  129  Am.  St. 
971  (1907)  ;  Smith  V.  Young,  136  Mo.  App.  65,  117  S.  W.  628  (1908)  ;  In  re 
Jenkins,  J32  App.  Div.  339,  117  N.  Y.  S.  74  (1909)  ;  Pozvelly  Scranton,  227 
Pa.  604.  76  Atl-  qoj;  (1910);  Clark  v.  Atlantic  City,  180  Fed.  598  (1910)  ; 
Continental  fertiliser  Co.  v.  Pass,  7  Ga.  App.  721,  67  S.  E.  1052  (1910)  ;  Lucy 
V.  Deas,  59  Fla.  552.  52  So.  515  (1910)  ;  Martin  v.  McCall,  247  111.  484,  93 
N.  E.  418  (1910);  Morris  v.  Robbins,  83  Kans.  335,  in  Pac.  470  (1910)  ; 
Bailey  v.  Hopkins,  152  N.  Car.  748,  67  S.  E.  569  (1910)  ;  Welch  v.  Lacroix, 
III  Maine  324,  89  Atl.  69  (1913)  ;  Gimby  v.  Cooper,  177  Mo.  App.  354,  164 
S.  W.  152  (1914)- 

If  after  judgment  another  court  may  in  another  suit  inquire  into  the 
errors  and  irregularities  in  the  prior  proceedings,  "a  judgment,  though  un- 


550  juncxiEKT 

I'.ARPr.  MINTON 

SurRRArE  Court  of  North  Carot.ixa,  1905 

138  A".  Car.  202 

Action  by  Dorinda  Earp  a.c;ainst  L.  L.  Minton,  heard  by  Judge 
\\*.  R.  Allen  and  a  jury,  at  tlie  June  term,  1904,  of  tlie  Superior 
Court  of  Wilkes  County. 

This  was  a  civil  action  tried  in  the  superior  court  upon  appeal 
from  the  judgment  of  a  justice  of  the  peace.  The  plaintiff  alleges 
that  she  is  the  owner  of  a  cow  and  that  the  defendant  is  in  wrongful 
and  unlawful  possession  of  her.  The  defendant  admits  the  pos- 
session of  the  cow,  but  denies  that  his  possession  is  wrongful  and 
unlawful  and  avers  that  he  is  an  innocent  purchaser  for  value.  It 
appears  from  the  record  that  tlie  defendant  purchased  the  cow  from 
one  Cranor,  who  came  into  possession  of  her  by  virtue  of  a  judg- 
ment secured  by  him  in  an  action  brought  before  a  justice  of  the 
peace  against  Dorinda  Earp,  the  plaintiff  in  this  action,  to  recover 
possession  of  the  cow.  In  the  present  action  this  judgment  was 
introduced  and  relied  on  by  defendant  to  establish  his  right  to  the 
possession  of  the  cow. 

The  court  submitted  the  following  issues:  i.  Is  the  plaintiff 
owner  of  the  property  in  dispute?  Ans.  Yes.  2.  What  was  the 
value  of  the  cow?  Ans.  Twenty-five  dollars.  3.  Was  the  judgment 
upon  which  the  defendant  relies  procured  by  fraud?   Ans.    Yes. 

From  a  judgment  for  the  plaintiff  the  defendant  appealed. 

Browx,  J. :  The  defendant  excepts  to  the  submission  of  the 
third  issue  as  to  fraud  in  the  procurement  of  the  judgment  in  Cranor 
V.  Earp  and  to  the  admission  of  certain  testimony  and  parts  of 
his  Honor's  charge  relating  to  that  issue.  The  defendant's  ground 
of  objection  to  the  issue,  the  evidence  and  the  charge  is  the  same; 
that  is  that  a  judgment  can  not  be  collaterally  attacked  for  fraud,  but 
it  must  be  impeached,  if  at  all,  by  an  independent  action.^^  We 
do  not  deem  it  necessary  to  consider  these  exceptions  separately. 


reversed  and  irreversible,  would  no  longer  be  a  final  adjudication  of  the  rights 
of  litigants,  but  the  starting  pomt  from  which  a  new  litigation  would  spring 
up  acts  of  limitation  would  become  useless  and  nugatory;  purchasers  on  the 
faith  of  judicial  process  would  find  no  protection;  every  right  established  by 
a  judgment  would  be  insecure  and  uncertain  and  a  cloud  would  rest  upon 
ever\- title."  Lancaster  v.  Wilson,  27  Gra.t.  (Va.)  624  (1876).  "Commentators 
upon  it  have  said,  the  res  judicata  renders  white  that  which  is  black,  and 
straight  that  which  is  crooked.  Facit  cxcurvo  rectum,  ex  alho  nigrum."  Per 
Campbell,  J.,  in  Jeter  v.  Heweft,  22  How.  (U.  S.)  352,  16  L.  ed.  345  (1850). 

But  a  proceeding  void  on  the  face  of  the  record  may  be  attacked  collater- 
ally. Aliens  v.  Lynn.  216  Pa.  604  66  Atl.  81,  10  L.  R.  A.  "(N.  S.)  463n,  116  Am. 
St.  791  (1907).  "Upon  collateral  attack  the  judgment  will  be  set  aside,  gen- 
erally speaking,  for  but  one  of  three  reasons:  lack  of  jurisdiction  of  the 
person,  lack  of  jurisdiction  of  the  subject-matter  of  the  action,  or  an  absolute 
lack  of  juri.=;diction  to  render  such  judgment  as  the  one  given."  Baldwin  v. 
Foster,  157  Cal.  643,  108  Pac.  714  (1910). 

'^A  code  substitute  for  a  bill  of  review  or  a  bill  to  impeach  for  fraud. 
Peterson  v.  Vann,  83  N.  Car.  118  (1880). 


EARP   V.    MINTON  55 1 

We  think  that  his  Honor  committed  error  in  submitting  the  issue 
to  the  jury,  and  it  follows  that  the  admission  of  evidence  and  his 
Honor's  charge  thereto  are  likewise  erroneous.  It  is  well  settled 
by  this  court  that  it  is  not  permissible  for  a  party  to  attack  a  judg- 
ment in  a  collateral  proceeding  on  account  of  fraud.  When  a  judg- 
ment is  attacked  for  fraud  the  proper  remedy  is  by  motion  in  the 
cause,  if  the  action  is  then  pending,  but  if  it  has  been  ended  by  final 
judgment,  an  independent  action  must  be  instituted.  Carter  v.  Roun- 
tree,  109  N.  Car.  29;  Smith  v.  Gray,  ii6  N.  Car.  311;  Burgess  v. 
Kirhy,,  94  N.  Car.  575. 

In  the  case  before  us  the  judgment  is  attacked  for  fraud  in  its 
procurement.  At  most,  it  is  only  voidable  for  an  irregularity  not 
apparent.  It  is  not  such  an  irregularity  as  to  render  the  judgment 
absolutely  void,  hence  it  can  not  be  attacked  collaterally,  but  it  must 
be  impeached,  if  at  all,  by  a  separate  proceeding  instituted  for  that 
purpose.  Burgess  v.  Kirhy,  supra;  Neville  v.  Pope,  95  N.  Car.  346; 
Brittain  v.  Mull,  99  N.  Car.  483.  If  it  is  contended  that  the  summons 
in  the  case  of  Cranor  v.  Earp  was  improperly  or  irregularly  served, 
or  that  defendant  was  sick  and  could  not  attend  the  trial,  her  remedy 
was  to  move  in  that  cause  before  the  justice  to  set  aside  the  judg- 
ment. 

We  are  of  opinion  that  in  submitting  the  issue  as  to  fraud  in 
the  procurement  of  the  judgment  in  Cranor  v.  Earp  and  admitting 
evidence  and  instructing  the  jury  in  regard  thereto,  his  Honor  com- 
mitted error. ^^ 

New  trial. 


^"Accord:  Bush  v.  Sheldon,  I  Day  (Conn.)  170  (1803)  ;  Sims  v.  Slaciwi, 
3  Cranch  (U.  S.)  300  (1806)  ;  Peck  v.  Woodhridge,  3  Day  (Conn.)  30  (1808)  ; 
Homer  v.  Fish,  18  Mass.  435,  11  Am.  Dec.  218  (1823)  ;  McRae  v.  Mattoon,  30 
Mass.  53  (1832)  ;  Anderson  v.  Anderson,  8  Ohio  108  (1837)  ;  Tarbox  v. 
Hrn^iSj_ft  Watt<;  398,  37  Am.  Dec.  478  (1837)  ;  Granger  v.  Clark,  22  Maine  128 
(1842)  ;  Greene  v.  Greene,  68  Mass.  361,  61  Am.  Dec.  454  (1854)  ;  Mason  v. 
Messenger,  17  Iowa  261  (1864)  ;  Christtnas  v.  Russel,  ^2  U.  S.  290,  18  L.  ed. 
475  (1866)  ;  The  Acorn,  2  Abb.  434,  Fed.  Cas.  No.  29  (1870)  ;  Simpson  v. 
Kimherlin,  12  Kans.  579  (1874);  Krekeler  v.  Ritter,  62  N.  Y.  372  (1875); 
Blanchard  v.  Webster,  62  N.  H.  467  (1883)  ;  Otterson  v.  Middleton.  102  Pa. 
78  (1883')  ;  Sherburne  v.  Shephard,  142  Mass.  141,  7  N.  E.  719  (i885)  ; 
Stewart  v.  Stitsher,  83  Ga.  297,  9  S.  E.  1041  (1889)  ;  O.g/g  v.  Baker,  137  Pa. 
St.  -^78^0  Atl.  998,  21  Am.  St.  886  (1890)  ;  Murphy  v.  trance,  loi  Mo.  151, 
13  S.  WT  817  (1890)  ;  Edgerton  v.  Edgcrton,  12  Mont.  122,  29  Pac.  966,  16 
L.  R.  A.  94,  33  Am.  St.  557  (1892)  ;  Nevitt  v.  First  Nat.  Bk.,  91  Hun  43,  36 
N.  Y.  S.  294,  71  N.  Y.  St.  376  (1895)  ;  Langdon  v.  Blackburn,  109  Cal.  19, 
41  Pac.  814  (1895)  ;  Bowman  v.  Wilson,  64  111.  App.  y^  (1895)  ;  Kansas  City 
R.  Co.  V.  Morgan,  76  Fed.  429  (1896)  ;  Sanders  v.  Price,  56  S.  Car.  i,  2,2>  S.  E. 
731  (1899)  ;  People  v.  Perris  Irr.  Dist.,  132  Cal.  289,  64  Pac.  399,  773  (1901)  ; 
Johnson  v.  Stebbins-Thompson  Realty  Co.,  167  Mo.  325,  66  S.  W.  933  (1901)  ; 
Logan  v.  Central  Iron  Co.,  139  Ala.  548,  36  So.  729  (1903)  ;  Oster  v.  Broe,  161 
Ind.  113,  64  N.  E.  918  (lon^^  :  C^nmden  Nnt.  Bk.  V.  Fries-Breslin  Co..  214.  Pa. 
:^Q=i,  63  Atl.  1022  (1096')  ;  Mahoncy  v.  State  Insurance  Co.,  133  Iowa  570,  no 
N.  W.  1041  (1907);  Ulber  v.  Dunn,  143  Iowa  260,  119  N.  W.  269  (1909)  ; 
Lang  v.  Dunn,  145  Iowa  363,  124  N.  W.  192  (1910)  ;  Morris  v.  Traveler's 
Insurance  Co.,  189  Fed.  211  (1911).  Contra:  Hall  v.  Hamlin,  2  y/atts  (Pa.) 
354  (1834)  ;  Jackson  v.  Sumnierville  l^  Pa.  St.  359  (18.S0)  :  Mandeville  v. 
Reynolds,  68  N.  Y.  .S28  (1877):  Phehs  v.  Benson,  161  Fa.  St.  418,  29  Atl.  86 
(1894)  ;  Pray  v.  Jenkins,  47  Kans.  599,  28  Pac.  716  (1892)  ;  Saper  v.  Mead, 
164  Pa.  12=;.  ^Q  Atl.  284  (1894).   In  some  cases  it  has  been  held  that  the  judg- 


55-  JUDGMENT 

CROUSIC  t:  McVICAR 

Court  of  Atpkals  ov  Ni:\v  York,  1912 
207  iV.  1'.  213 

Appeal  from  a  judgment  of  the  appellate  division  of  the  Supreme 
Court  in  the  fourth  judicial  department,  entered  March  17,  191 1, 
modifying  and  affirming  as  modihcd  a  judgment  in  favor  of  defend- 
ants entered  upon  a  dismissal  of  the  complaint  by  the  court  on  trial 
at  special  term.  The  nature  of  the  action  and  the  facts,  so  far  as 
material,  are  stated  in  the  opinion.^^ 

CuLLEX,  C.  J. :  One  Crouse  died  on  the  twenty-first  day  of  No- 
vember, 1892,  leaving  a  last  will  and  testament  whereby,  after  many 
legacies,  he  bequeathed  a  large  residuary  estate  of  personalty  to 
the  persons  who  would  be  entitled  to  take  the  same  under  the  law  if 
he  had  died  intestate.  The  plaintiff  and  certain  others,  first  cousins 
of  the  testator,  were  his  next  of  kin,  unless  the  defendant  Dorothea 
Edgarita  Crouse,  who  was  then  an  infant  aged  six  years,  was  his 
legitimate  child.  The  claim  was  made  on  behalf  of  said  infant  that 
she  was  such  child,  and  by  the  defendant  Eula  H.  Potulicka  that  she 
was  tlie  widow  of  said  testator.  In  this  state  of  conflicting  claims 
the  executors  of  the  will  of  the  deceased  brought  an  action  in  the 
Supreme  Court  against  all  the  persons  claiming  any  portion  of  the 
estate  under  the  will,  asking  that  it  be  determined  who  were  entitled 
to  the  estate.  The  complaint  in  this  action  does  not  set  forth  in  full 
the  judgment  roll  in  the  executors'  action,  but  it  does  state  the  object 
of  the  action  and  that  the  issue  in  it  was  as  to  the  status  of  the  de- 
fendant Dorothea.  It  alleges  that  the  action  was  brought  on  for 
trial,  when  the  parties  entered  into  stipulation  by  which  it  was  agreed 
that  the  conflicting  claimants,  the  first  cousins  on  one  side  and  Dor- 
othea on  the  other,  should  share  the  residuary  estate  equally  and 
that  judgment  to  that  effect  should  be  had.  In  accordance  w^ith  tlie 
stipulation,  which  the  guardian  was  authorized  by  the  court  to  make 
on  behalf  of  the  infant,  judgment  was  entered  on  the  19th  day  of 
February,  1895,  which  decreed  that  the  residuary  estate  be  divided 
as  stipulated  (certain  deductions  being  made  from  the  infant's  share 

ment  is  impeachable  collaterally,  where  the  fraud  is  practiced  in  the  act  of 
obtaining  judpment;  where  the  court  is  misled.  Abonloff  v.  Oppenhcimer, 
L.  R.  ID  Q.  B.  Div.  295  (1883);  Pfiffncr  v.  Krapfel,  28  Iowa  27  (1869); 
Amador  C.  &  M.  Co.  v.  Mitchell,  59  Cal.  168  (1S81)  ;  Richardson  v.  Trimble, 
38  Hun  (X.  Y.)  409,  17  Abb.  N.  Cas.  210  (1886)  ;  First  Nat.  Bk.  v.  Cunning- 
ham, 48  Fed.  510  (1891)  ;  Daniels  v.  Benedict,  50  Fed.  347  (1892)  ;  Cotterell 
V.  Koon,  151  Ind.  182,  51  N.  E.  235  (1898);  Wondcrly  v.  Lafayette  Co.,  150 
Mo.  635,  51  S.  \V.  745,  45  L.  R.  A.  386,  73  Am.  St.  474  (1899)  ;  Fort  Jefferson 
Imp.  Co.  v.  Green,  112  Ky.  85,  65  S.  W.  161  (1901)  ;  Cooky  v.  Barker,  122 
Iowa  440, 98  N.  W.  289,  loi  Am.  St.  276  ( 1904)  ;  Mahoney  v.  State  Insurance  Co., 
133  Iowa  570,  no  N.  W.  1041  (1907)  ;  Flail  v.  Cox,  104  Ark.  303,  149  S.  W.  80 
(1912).  Contra:  Sherburne  v.  Shcpard,  142  Mass.  141,  7  N.  E.  719  (1886); 
Carr  v.  Miner,  42  111.  179  (1866)  ;  Cody  v.  Cody,  98  Wis.  445,  74  N.  \V.  217 
(1898) ;  Davis  v.  Davis,  61  Maine  395  (1873). 

"The  arguments  of  counsel  and  part  of  the  opinion  of  the  court  are 
omitted. 


CROUSE   V.    M  VICAR  553 

in  favor  of  third  parties,  details  of  which  are  immaterial  in  this 
controversy).  A  copy  of  that  judgment  is  annexed  to  the  complaint 
and  forms  part  thereof.  The  complaint  then  charges  that  the  claim 
on  behalf  of  Dorothea  was  not  only  false  but  fraudulent  and  made 
in  bad  faith,  and  that  it  was  intended  to  support  it  by  the  perjury  of 
certain  witnesses  who  had  been  suborned  for  the  purpose;  that 
plaintiff  did  not  know  at  the  time  and  had  no  means  of  knowing  that 
the  claim  was  fraudulent,  but  supposed  it  w^as  made  in  good  faith, 
and  that  relying  on  the  false  statements  made  in  various  stages  of 
the  suit  he  made  the  compromise  and  entered  into  the  stipulation 
above  recited.  He  asks  as  relief  that  the  judgment  be  set  aside  and 
that  the  defendant  Dorothea  restore  to  him  the  moneys  awarded  to 
her  out  of  his  share. 

I  think  the  courts  below  were  right  in  holding  that  the  complaint 
did  not  state  facts  sufficient  to  constitute  a  cause  of  action.  The 
complaint  was  evidently  framed,  and  the  appeal  has  been  argued, 
as  if  the  action  were  to  set  aside  for  fraud  merely  an  agreement  to 
compromise  and  to  recover  money  paid  thereunder.  But  this  is  a 
mistaken  view.  There  is  a  solemm  judgment  rendered  in  one  action 
which  it  is  sought  to  attack  by  another.  The  court  whose  decree  is 
assailed  had  jurisdiction  of  the  subject-matter  of  the  action,  of  the 
parties  thereto  and  jurisdiction  to  render  a  judgment  distributing 
the  estate  of  the  decedent.  It  matters  not  whether  that  judgment  was 
right  or  wrong.  Until  reversed  on  appeal  or  set  aside  it  was  con- 
clusive. Nor  does  it  matter  when  the  cause  was  brought  on  for 
trial,  instead  of  hearing  testimony  the  court  made  its  decree  on  the 
stipulation  of  the  parties.  A  judgment  by  default  is  as  conclusive  as 
any  other  judgment,  and  a  judgment  rendered  on  the  express  stipu- 
lation of  the  parties  can  hardly  be  of  less  effect  than  one  rendered 
on  the  failure  of  a  party  to  appear.  Parties  may  by  their  stipulation 
make  the  law  of  the  case  which  the  courts  may  and  at  times  are 
bound  to  enforce.  (In  re  N.  Y.,  Lackawanna  &  W.  R.  R.  Co-,  98 
N.Y.447). 

The  judgment  sought  to  be  set  aside  was  therefore  subject  to 
the  same  and  only  to  the  same  attack  that  could  be  made  on  any  other 
judgment.  It  is  doubtless  true  that  a  judgment  can  be  set  aside  for 
fraud  by  an  action  brought  for  that  purpose,  but  it  is  settled  law 
(save  possibly  in  one  or  two  jurisdictions)  that  the  fraud  for  which 
a  judgment  can  be  impeached  must  be  in  some  matter  other  than  the 
issue  in  controversy  in  tlie  action.  By  Professor  Pomeroy  it  is  said 
(Equity  Jurisprudence,  section  1361)  :  "Equity  will  not  restrain  a 
legal  action  or  judgment  when  the  controversy  will  be  decided  by 
the  court  of  equity  upon  a  ground  equally  available  at  law,  unless 
the  party  invoking  the  aid  of  equity  can  show  some  special  equitable 
feature  or  ground  of  relief,  and,  in  the  case  assumed,  this  special 
feature  or  ground  must  necessarily  be  something  connected  with  the 
mode  of  trying  and  deciding  the  legal  action,  and  not  with  the  cause 
of  action  or  the  defense  themselves, "^^  In  United  States  v.  Throck- 


"^Accord:  Bateman  v.  fVilloe,  i  Sch.  &  L.  210  (1803);  Prothero  v.  For- 
tnan,  2  Swanst.  227  (1818)  ;  Emerson  v.  Udall,  13  Vt.  477,  27  Am.  Dec.  604 


--^  JUDGMENT 

viorton,  98  U.  S.  61,  66,  it  was  held:  "On  the  other  hand,  the  doc- 
trine is  equally  well  settled  that  the  court  will  not  set  aside  a  judg- 
ment because  it  was  founded  on  a  fraudulent  instrument,  or 
perjured  evidence,  or  for  any  matter  which  was  actually  presented 
and  considered  in  the  judgment  assailed."  (See,  also,  Black  on  Judg- 
ments, section  372.)  In  Rose  v.  Wood,  70  N,  Y.  8,  the  complaint 
charged  that  the  defendants,  combining  with  oUiers  to  cheat  and 
defraud  tlie  plaintiff  by  perjury  and  false  testimony,  obtained  a 
judgment  setting  aside  a  deed  and  asked  that  the  judgment  so  ob- 
tained might  itself  be  set  aside  for  the  fraud  and  perjury.  The  com- 
jMaint  was  held  on  demurrer  not  to  state  a  cause  of  action.  Mayor, 
etc.,  of  Xeiv  York  v.  Brady,  115  N.  Y.  599,  is  to  the  same  effect. 
In  the  latter  case  is  to  be  found  an  extensive  review  of  the  author- 
ities. In  Smith  v.  Lezvis,  3  Johns.  (N.  Y.)  157,  it  was  held  that  an 
action  would  not  lie  for  suborning  witness  to  testify  falsely  by  which 
the  plaintiff  was  cast  in  judgment.  The  reason  of  the  rule  is  stated 
l>y  Chancellor  Kent,  then  chief  justice,  that  otherwise  there  could  be 
no  final  determination  of  a  suit.  So  here,  if  in  this  action  the  plaintiff 
should  be  successful,  thereafter  the  defendant  might  sue  to  set  aside 
the  adverse  judgment  on  the  ground  that  plaintiff's  claim  had  been 
made  in  bad  faith  and  supported  by  perjury.  The  principle  on 
which  the  rule  rests  is  the  oft-repeated  maxim.  Interest  republicae 
lit  sit  finis  liiiiim.  It  does  not  follow  that  a  defeated  litigant  is  with- 
out redress  for  perjury.  He  can  apply  in  the  original  action  and  in  a 
proper  case  obtain  relief. 

The  fact  that  the  decree  now  sought  to  be  vacated  rests  on 
stipulation  does  not  differentiate  it  in  principle  from  one  where  the 


C1841)  ;  Warner  v.  Conant,  24  Vt.  351,  58  Am.  Dec.  178  (1852)  ;  Holmes  v. 
Stateler.  ^7  111.  209  (1870);  Hetsell  v  Bents  S  Phila.  (Pa.)  261  (1871); 
Tyler  v.  Hammerslcy,  44  Conn.  419,  26  Am.  Rep.  479  (US//!);  Walker  v. 
Shreve,  87  111.  474  (1877);  Holmes  V.  Steele,  28  N.  J.  Eq.  173  (1877); 
Lebanon  Miit.  Ins.  Co.  v.  Erh,  i  Sad.  (Pa.)  181,  i  Atl.  559,  57i  (1885); 
Harding  v.  Hawkins,  141  111.  572,  31  N.  E.  307,  33  Am.  St.  347  (1889)  ; 
Gaszam  v  Rrndinn.  202  Pa.  2^1.  m  Atl.  looo  (1902)  ;  Stewart  v.  Wood,  86 
Ark.  504,  III  S.  \V.  983  (1908)  ;  Zetlin  v.  ZctUn,  202  Mass.  205,  88  N.  E.  762 
(1909);  Mushbaugh  v.  East  Peoria,  260  111.  27,  102  N.  E.  1027  (1913)  ; 
Bnchler  v.  Black,  213  Fed.  880  (1914)-  Contra:  Laun  v.  Kipp,  155  Wis.  347, 
145  N.  \V.  183  (1914)  ;  Zohrlant  v.  Meugelberg,  158  Wis.  392,  148  N.  W.  314, 
149  N.  W.  280  (1914)  ;  De  Soto  Coal  Min.  &-c.  Co.  v.  Hill,  188  Ala.  667,  65 
So.  988  (1914).  And  see  Cole  v.  Langford,  L.  R.  (1898)  2  Q.  B.  36;  Birch  v. 
Birch,  L.  R.  (1902)  Probate  130. 

It  is  frequently  said  that  the  fraud  that  will  justify  equitable  interference 
with  a  judgment  or  decree  must  be  that  which  occurs  in  the  procuring  of  the 
judgment  by  which  the  defendant  is  deprived  of  his  day  in  court,  or  the  court 
itself  is  imposed  upon.  Patch  v.  Ward,  L.  R.  3  Ch.  App.  203  (1867)  ;  Ellis  v. 
Kelly,  6  Bush  (Kv.)  621  (1871);  United  States  v.  Throckmorton,  98  U.  S. 
61,  25  L.  ed.  93  (1878)  ;  Rnss  v.  Wood,  70  N.  Y.  8  (1877)  ;  Mayor  of  City  of 
Xew  York  v.  Brady,  115  N.  Y.  S99,  22  N.  E.  237  (1889)  ;  Weaver  v.  Vande- 
vanter,  84  Tex.  691,  19  S.  W.  889  (1892);  Piatt  v.  Threadgill,  80  Fed.  192 
(1897)  ;  Parsons  v.  Weis,  144  Cal.  410,  77  Pac.  1007  (1904)  ;  Pratt  v.  Griffin, 
223  111.  349.  79  N.  E.  102  (1906)  ;  Wihon  v.  Anthony,  72  N.  J.  Eq.  836,  66  Atl. 
907  (1907)  ;  Cantwell  v.  Kimmerle,  179  111.  App.  66  (1913)  ;  Fricbe  v.  Elder, 
181  Ind.  597,  105  N.  E.  151  (1914)  ;  Hollister  v.  Sobra,  264  HI-  535,  106  N.  E. 
507  (I9M)- 


DUNLAP   V.    GLIDDEN  555 

judgment  was  rendered  after  hearing  evidence.^^  The  stipulation 
acted  as  a  substitute  for  evidence.  Each  party  being  afraid  of  the 
effect  of  the  evidence  of  the  adverse  party  stipulated  that  the  adver- 
sary's claim  should  prevail  to  the  extent  of  one-half.  No  fraud  is 
charged  except  in  statements  made  as  to  the  issue  itself.  If  perjury 
in  that  respect  made  on  the  witness  stand  and  inducing  a  court  or 
jury  to  render  an  erroneous  decision  would  not  support  an  action  to 
set  aside  the  judgment,  it  is  difficult  to  see  why  it  should  be  of  more 
moment  because  it  frightened  the  parties  into  a  compromise. 
Judgment  affirmed. 


DUNLAP  V.  GLIDDEN  AND  OTHERS 
Supreme  Judicial  Court  of  Maine,  1850 

31  Maine  435 

Two  actions  on  the  case,  each  charging,  tliat  Dunlap  was  the 
just  and  lawful  owner  of  a  lot  of  land;  that  said  Glidden,  however, 
had  sued  out  a  writ  of  entry  for  the  land  against  Dunlap,  and  in 
that  action  had  obtained  a  verdict  and  judgment  for  the  same;  that 
said  verdict  was  obtained  by  the  fraud  of  Glidden  and  by  false 
testimony  of  two  of  the  defendants  and  of  other  witnesses,  under 
a  conspiracy  among  all  the  defendants,  by  fraud  and  perjury,  to 
deprive  and  cheat  the  plaintiff  of  his  said  land. 

The  defendants  protesting,  that  the  fraud  and  conspiracy  are 
falsely  charged,  pleaded  that  the  plaintiff  is  estopped,  by  the  said 
judgment,  from  proving  his  allegations. 

The  plaintiff  replies,  that  he  ought  not  to  be  estopped,  etc., 
because  neither  the  parties  nor  the  cause  of  action  in  the  former 
suit  were  the  same  as  in  tliis  action,  and  re-asserts,  that  said  judg- 
ment was  obtained  by  fraud,  perjury  and  conspiracy  as  in  the  writ 
alleged.  To  that  replication  the  defendants  demur  generally,  and 
there  is  a  joinder  in  the  demurrer.^® 

^'Accord :  Pozvell  v.  Shank,  3,  Watts.  (Pa.)  2%^  (18-^4)  ;  Gifford  v.  Thorn,  g 
N.  J.  Eq.  702  (1^55;  ;  Hanscom  v.  Hcwes,  78  Mass.  334  (1859)  ;  Donnelly  v. 
Wilcox,  113  N.  Car.  408,  18  S.  E.  339  (1893);  In  re  South  American  & 
Mex.  Co.,  L.  R.  (1895)  i  Ch.  2)7',  Adler  v.  Van  Kirk  Land  &  Const.  Co., 
114  Ala.  551  (1896)  ;  Kidd  v.  Huff,  105  Ga.  209,  31  S.  E.  430  (1898)  ;  Harding 
V.  Harding,  198  U.  S.  317,  25  Sup.  Ct.  679,  49  L.  ed.  1066  (1904)  ;  South  Penn. 
Oil  Co.  v.  Calf  Creek  Oil  &c.  Co.,  140  Fed.  507  (1905)  ;  Commonwealth  v. 
Churchill,  131  Ky.  251,  115  S.  W.  189  (1909)  ;  Lewis  v.  St.  Louis  L  &c.  R.  Co., 
107  Ark.  41,  154  S.  W.  198  (1913).  Contra:  Lamb  v.  Gatlin,  2  Dev.  &  B. 
(N.  Car.  Eq.)  2>7  (1838)  ;  Jenkins  v.  Robertson,  L.  R.  (1867)  i  H.  L.  Scotch 
117,  and  compare  IVadhams  v.  Gay,  7:^  111.  415  (1874)  ;  Gay  v.  Parpart,  106 
U.  S.  679,  I  Sup.  Ct.  456,  27  L.  ed.  256  (1882)  ;  Lawrence  Mfg.  Co.  v.  Janes- 
ville  Mills,  138  U.  S.  552,  11  Sup.  Ct.  402,  34  L.  ed.  1005  (1891)  ;  Carr  v. 
Illinois  Cent.  R.  Co.,  180  Ala.  159,  60  So.  277,  43  L.  R.  A.  (N.  S.)  6340  (1912). 

"'The  argument  of  counsel  and  part  of  the  opinion  of  the  court  are 
omitted. 


556  JUDGMENT 

Wells,  J.:  The  cause  of  action  in  these  suits  is  tlie  same,  but 
the  same  defendants  are  not  all  joined  in  each  of  them.  The  declara- 
tions allege  in  substance,  that  Benjamin  Gliddcn,  Jr.,  commenced 
an  action  against  the  plaintiff  to  recover  several  parcels  of  real 
estate,  iJiat  a  verdict  was  rendered  in  that  action  in  favor  of  Glidden, 
and  judi::ment  was  entered  on  the  verdict,  that  all  of  the  defend- 
ants fraudulentl)'-  conspired  together  to  defeat  the  plaintiff's  title, 
and  to  aid  Glidden  in  his  suit,  and  that  by  the  false  testimony  of 
two  of  the  defendants  and  others,  the  verdict  was  obtained  against 
tlie  plaintiff. 

These  actions  are  brought  to  recover  damages  arising  from  the 
judgment  obtained  by  Glidden  against  the  plaintiff,  and  if  they 
should  be  sustained,  the  record  would  present  the  anomaly  of  a 
judgment  remaining  in  full  force,  and  of  another,  in  which  dam- 
ages were  rendered  on  account  of  the  existence  of  the  former  one. 
B\it  the  judgment  against  the  plaintiff,  so  long  as  it  remains  in 
force,  must  be  considered  as  true  and  just.  He  can  not  be  permitted 
to  aver  the  falsity  of  that  judgment,  as  the  ground  for  the  recovery 
of  damages.  It  constitutes  in  itself  a  clear  and  unequivocal  denial 
of  his  allegations.  He  says,  that  by  the  fraud  and  conspiracy  of  the 
defendants,  he  has  lost  the  land,  but  the  judgment  imports  that  it 
was  properly  rendered  in  the  ordinary  course  of  judicial  pro- 
ceedings. *  *  * 

The  plaintiff  can  not  recover  upon  the  ground  alleged  of  false 
testimony  given  by  some  of  the  defendants.  For  an  action  will  not 
lie  against  a  witness  for  giving  false  testimony  in  another  case. 
Dam  port  v.  Sympson,  Cro.  Eliz.  520;  Eyers  v.  Sedgwicke,  Cro. 
Jac.  601." 

If  the  judgment  was  obtained,  as  is  contended,  by  fraud  and 
periur\%  the  plaintiff  has  ample  remedy  by  law.  The  court,  which 
rendered  the  judgment,  upon  proof  of  these  allegations,  would  be 
bound  to  grant  a  new  trial,  so  that  upon  a  further  investigation, 
justice  might  be  done.^   The  witnesses,  if  guilty,  might  be  indicted 

^'"Accord:  Harding  v.  Bodman,  Hutton  II  (1617)  ;  Smith  v.  Lewis,  3 
Johns.  (X.  Y.)  157,  3  Am.  Dec.  460  (1808);  Cunningham  v.  Brown,  18  Vt. 
123,  46  Am.  Dec.  140  (1846);  Lyford  v.  Demerit,  32  N.  H.  234  (1855); 
Engstrom  v.  Sherburne,  137  Mass.  153  (1884)  ;  Castriqne  v.  Behrens,  3  El.  & 
El.  710  (1861)  ;  Buffer  v.  Allen,  L.  R.  2  Exch.  15  (1866)  ;  Horner  v.  Schin- 
stock,  80  Kans.  136,  loi  Tac.  996  (1909). 

*A  new  trial  on  the  ground  of  perjury  is  discretionary.  Fabriliits  v.  Cock, 
3  Burr.  1771  (176^)  :  Stntthers^y.  IVagna:.  6  Phila.  (EajL-262  (1867); 
Shnnahan  w  Insurance  C'o.,£Ta7Super.jit.  6?  ('1807').  It  has  been  said  that  a 
new  trial  will  not  be  granted  on  this  ground  until  after  the  perjured  witness  has 
been  convicted,  or  is  dead.  Dyche  v.  Pation,  3  Jones'  Eq.  (N.  Car.)  332 
(i8=;7)  ;  Tovcy  v.  Young,  Prec.  Ch.  193  (1702)  ;  Whcatley  v.  Edwards,  Lofft. 
87  (1772)  ;  Benfield  v.  Petrie.  3  Dougl.  24  (1781)  ;  Warwick  v.  Bruce,  4  M.  & 
.S  140  (1815)  ;  Secley  v.  Mayhczv,  4  Bing.  561  (1828)  ;  Great  Falls  M.  Co.  v. 
Ma'.hcs,  5  N.  H.  574  (1832)  ;  Holtz  v.  Schmidt,  12  Jones  &  Sp.  (N.  Y.)  327, 
44  N.  Y.  Super.  Ct.  327  (1878).  "Perhaps  the  rule  laid  down  in  these  cases 
may  be  too  strict  and  exacting  for  all  circumstances,  but  it  is  obviously 
foimdcd  in  wise  policy."  Dexter  v.  Handy,  13  R.  I.  474  (1881).  A  convic- 
tion will  not  necessarily  lead  to  a  new  trial  if  the  court  is  otherwise  satisfied 
with  the  verdict.   Davies  v.  Breckncll,  L.  R.  3  P.  &  D.  88  (1873). 


DUNLAP   V.    GLIDDEN  557 

for  perjury,  and  so  might  all  those  be  indicted,  who  inilawfuUy  con- 
spired together  to  deprive  the  plaintiff  of  his  rights,  and  their 
conviction  would  afford  the  most  convincing  evidence,  that  a  review 
of  the  action  should  take  place. 

It  is  contended  on  the  part  of  the  plaintiff,  that  the  pleas  of 
the  defendants  are  bad.  But  it  does  not  become  necessary  to  decide 
that  question,  for  the  declarations  being  bad,  judgment  must  be 
rendered  against  the  plaintiff  as  the  party,  who  committed  the  first 
error  in  pleading. 

The  declarations  in  both  actions  are  adjudged  bad.^ 


-False  or  perjured  testimony  is  not,  alone,  ground  for  impeaching  a 
judgment  collaterally.  Biilkley  v.  Stczvdrt,  i  Day  (Conn.)  130,  2  Am.  Dec.  57 
(1803)  ;  Peck  V.  IVoodbridge,  3  Day  (Conn.)  30  (1808);  S^nith  v.  Lewis,  3 
Johns.  (N.  Y.)  157,  3  Am.  Dec.  469  (1808)  ;  Tipton  v.  Gardner,  4  Ad.  &  El. 
317  (1835)  ;  Pilmore  v.  Hood,  8  Scott,  180  (1839)  ;  Abbott  v.  Bahr,  3  Finn. 
(Wis.)  193  (1851);  Demerit  v.  Lyford,  27  N.  H.  541  (1853);  Greene  v. 
Greene,  68  Mass.  361,  61  Am.  Dec.  4=^4  (1854)  ;  Dilling  v.  Murray,  6  Ind.  324, 
63  Am.  Dec.  383  (1855)  ;  Lyford  v.  Dcmcrritt,  32  N.  H.  234  (1855)  ;  Wood- 
rozv  V.  O'Conncr,  28  Vt.  776  (1856)  ;  Field  v.  Sanderson,  34  Mo.  542,  86  Am. 
Dec.  124  (1864)  ;  Elkins  v.  Page,  45  N.  H.  310  (1864)  ;  Cottle  v.  Cole,  20  Iowa 
481  (1S66)  ;  Vance  v.  Burhank,  loi  U.  S.  514,  25  L.  ed.  929  (1879)  ;  New  York 
Cent.  R.  Co.  v.  Harrold,  65  How.  Pr.  (N.  Y.)  89  (1883)  ;  Lebanon  MutJLns. 
Co.v.  Erb,2Chest.Co.  (Pa.)  S3.^  (188.S)  ;  Burton  v.  Perry,  146  111771,  34  N.  E. 
60  (1893)  ;  United  States  v.  Chnng  Shee,  71  Fed.  277  (1S95)  ;  Baker  v.  Wads- 
worth,  L.  J.  (N.  S.)  67  Q.  B.  Div.  301  (1898)  ;  Maddox  v.  Summerlin,  92  Tex. 
483,  49  S.  W.  1033,  50  S.  W.  567  (1899)  ;  IVord  v.  Schozv,  29  Tex.  Civ.  App.  120, 
68  S.  W.  192  (1902)  ;  El  Capitan  Co.  v.  Lees,  13  N.  M.  407,  86  Pac.  924 
(1906)  ;  Bleakley  v.  Barclay,  75  Kans.  462,  89  Pac.  906,  10  L.  R.  A.  (N.  S.) 
230  (1907).  Nor,  by  the  weight  of  authority,  is  such  testimony,  alone,  ground 
for  equitable  relief.  Stnith  v.  Lowry,  i  Johns.  Ch.  (N.  Y.)  320  (1814)  ; 
Vaughn  v.  Johnson,  9  N.  J.  Eq.  173  (1852)  ;  Boston  &  W.  R.  Co.  v.  Spar- 
hawk,  83  Mass.  448,  79  Am.  Dec.  750  (1861)  ;  Ross  v.  Wood,  70  N.  Y.  8 
(1877)  ;  United  States  V.  Throckmorton,  98  U.  S.  61,  23  L.  ed.  93  (1878)  ; 
Floiver  v.  Lloyd,  L.  R.  10  Ch.  D.  327  (1878)  ;  Mctcalf  v.  Gilmore,  59  N.  H. 
417,  47  Am.  Rep.  217  (1879)  •  Koiint::;'s  Abbe.al  (Pa.)  36  Phila.  Leg.  Int. 
186  (1879)  ;  Pico  V.  Cohn,  91  Cal.  129,  25  Pac.  970,  27  Pac.  537,  13  L.  K-  A. 
336,  25  Am.  St.  159  (1891)  ;  Codde  v.  Mahiat,  109  Mich.  186,  66  N.  W.  1093 
(1896)  ;  United  States  v.  Gleeson,  90  Fed.  778  (1898)  ;  McDougall  v.  Walling, 
21  Wash.  478,  58  Pac.  669,  75  Am.  St.  849  (1899)  ;  Maryland  &  Co.  v.  Marney, 
91  Md.  360,  46  Atl.  1077  (1900)  ;  Sohler  v.  Sohler,  135  Cal.  323  (1902)  ; 
Wood  V.  Davis,  108  Fed.  130  (1900)  ;  Evans  v.  IVoodsw'orth,  213  III.  404,  7^ 
N.  E.  1082  (1905) ;  French  v.  Raymond,  82  Vt.  156,  72  Atl.  324  (1909)  ;  Ljicy 
V.  Deas,  59  Fla.  552,  52  So.  515  (1910).  Contra:  Burgess  v.  Lovengood,  55 
N.  Car.  (2  Jones)  457  (1856)  ;  Kersey  v.  Rash,  3  Del.  Ch.  321  (1869),  semble; 
Stowell  V.  Eldred,  26  Wis.  504  (1870)  ;  Graver  v.  Faurot,  76  Fed.  257  (1896)  ; 
Davis  V.  Jones  (Tex.),  149  S.  W.  727  (1912)  ;  El  Reno  F.  I.  Co.  v.  Sutton 
41  Okla.  297,  137  Pac.  700  (1913),  and  contra,  by  statute,  Laithe  v. 
McDonald,  12  Kans.  340  (1873)  ;  Brown  v.  Byani,  59  Iowa  52,  12  N.  W.  770 
(1882);  Landers  v.  Smith,  78  Maine  212,  3  Atl.  463  (1886);  Stezvart  v. 
Duncan,  40  Minn.  410,  42  N.  W.  89  (1889)  ;  Hass  v.  Billings,  42  Minn.  63, 
43  N.  W.  797  (1889)  ;  Moiirdy  v.  Witzka,  89  Minn.  300,  94  N.  W.  885  (1903)  ; 
Munro  v.  Callahan,  53  Nebr.  73,  73  N.  W.  131,  70  Am.  St.  366  (1898)  ;  Beck 
V.  Juckett,  III  Iowa  339,  82  N.  W.  762  (1900)  ;  Van  Antzverp  v.  Lathrop,  70 
Nebr.  747,  98  N,  W.  35  (1904)  ;  Young  v.  Lindquist,  126  Minn.  414,  148  N.  W. 

455  (1914)- 

In  Nugent  v.  Metropolitan  S.  Ry.  Co.,  49  App.  Diy.  (N.  Y.)  a  judgment 
was  vacated  because  the  perjured  testimony  was  inspired  and  manufactured 
by  one  of  the  attorneys. 


358  juncMEXT 

THOMAS  ATKINSON   AND  FRANCIS   ATKINSON  v. 
TASCIIAL  ALLEN 

Supreme  Court  of  Vermont,  1839 
12  Vt.  6ig 

Ejectment,  for  the  whole  of  the  first  division  of  the  rij^ht  of 
Charles  Murray,  in  Charleston,  lieing  lot  No.  5.  Plea,  not  guilty,  and 
trial  by  jury.^ 

Upon  the  trial  in  the  county  court,  the  plaintiffs  introduced  testi- 
mony tending  to  prove  that,  in  1806,  one  John  Atkinson  took  posses- 
sion of  one  hundred  acres  of  the  west  part  of  said  lot.  The  plaintiffs 
also  read  in  evidence  two  deeds  from  John  Atkinson  to  themselves, 
conveying  the  land  in  question,  one  dated  in  1820,  and  the  other  in 
1821  ;  also,  an  act  of  the  legislature,  passed  in  1819,  authorizing  the 
plaintiffs  to  hold  lands  in  this  state.  The  possession  of  John  Atkin- 
son was  continued  until  the  fall  of  1810,  and  then  vacated  until  1818, 
when  he  again  took  possession,  and  he  and  the  plaintiffs,  from  that 
time,  continued  in  possession  until  1829,  wdien  the  plaintiffs  were 
evicted  by  one  Alpha  Allyn,  who  continued  in  possession  until  July, 
1833.  The  plaintiffs  did  not  connect  their  claim  of  title  wdth  Murray, 
the  original  grantee.  The  defendant  was  in  possession  of  the  land 
previous  to,  and  at  tlie  time  of  the  commencement  of  this  suit.  Here 
the  plaintiff's  rested. 

The  defendant  then  read  in  evidence  a  judgment  of  the  county 
court,  rendered  at  the  June  term,  1833,  in  favor  of  Charles  Murray, 
of  the  city  of  London,  in  England,  against  Alpha  Allyn,  showing  a 
recovery  of  the  seizin  and  possession  of  said  land ;  also  a  writ  of 
possession,  issued  on  said  judgment,  and  the  return  of  the  officer 
thereon,  showing  that  the  writ  had  been  duly  executed. 

The  plaintiffs  then  gave  evidence  tending  to  prove  that  the  action 
of  ejectment  in  favor  of  Murray  against  Alpha  Allyn,  w^as  com- 
menced without  Murray's  knowledge;  that  he  never  recognized  it, 
and  that  the  judgment  recovered  therein  was  collusive,  colorable  and 
fraudulent.  To  the  admission  of  this  evidence  the  defendant  ob- 
jected, but  the  court  overruled  the  objection. 

The  jury  returned  a  verdict  for  the  plaintiffs  to  recover  one 
hundred  acres  of  the  lot  in  question,  and  the  defendant  excepted  to 
the  decision  and  charge  of  the  county  court. 

Redfiei.d,  J.:  The  only  remaining  objection  made  to  the  pro- 
ceedings in  the  court  below  is,  that  the  plaintiffs  were  suffered  to 
attack  the  judgment  in  favor  of  Charles  Murray  against  Alpha  Allyn 
collaterally,  by  showing  that  it  was  not  bona  fide,  but  colorable 
merely,  got  up  by  Allyn  to  shield  himself  and  his  tenant,  the  defend- 
ant— Murray  having  no  knowledge  of  the  proceedings.  It  is  obvious, 
that  as  the  plaintiffs,  and  those  under  whom  they  claim  title,  had 

'Part  of  the  statement  of  facts,  the  arguments  of  counsel  and  part  of  the 
opinion  are  omitted. 


ATKINSON   V.    ALLEN  559 

possession  of  the  premises  prior  to  Alpha  Allyn,  and  were  forcibly 
ousted  by  h'm,  they  can  upon  this  first  seizin  only,  recover  of  Allyn 
and  all  who  have  entered,  either  under  him,  or  upon  his  possession, 
whether  with  or  without  his  consent,  unless  they  can  shield  them- 
selves under  a  title  older  and  better  than  that  of  the  plaintiffs.  This 
they  attempted  by  force  of  the  judgment  in  favor  of  Murray,  the 
original  proprietor,  against  Alpha  Allyn,  he  being  put  out  of  pos- 
session and  the  present  defendant  and  those  under  whom  he  claims 
title,  being  put  in  under  color  of  this  judgment.  This  judgment  the 
plaintiffs  were  permitted  to  avoid,  by  proof  addressed  to  the  jury,  in 
the  manner  above  stated.  As  the  plaintiffs  were  neither  parties,  nor 
privy  to  this  judgment,  and  could  have  brought  no  process  or  suit 
whatever  to  reverse  or  set  it  aside,  they  must  be  permitted  to  avoid 
the  effect  of  the  judgment  in  this  manner,  if  at  all.  The  rule  that 
a  judgment  of  a  court  of  competent  jurisdiction  is  conclusive,  until 
reversed  or  in  some  manner  set  aside  and  annulled,  and  that  it  can 
•not  be  attacked  collaterally,  by  evidence  tending  to  show  tliat  it  was 
irregularly  or  improperly  obtained,  only  applies  to  parties  and  privies 
to  the  judgment,  who  may  take  proceedings  for  its  reversal,  and  in 
no  sense  extends  to  strangers.  It  is  obvious,  if  the  facts  found  by 
the  jury  in  this  case  are  to  be  regarded,  that  the  defendant  is  the 
tenant  of  Alpha  Allyn,  and  has  no  more  connection  with  the  title  of 
Murray  than  if  he  had  attempted  to  show  title  from  him,  by  means 
of  a  forged  deed.  And  it  is  not,  for  a  moment,  to  be  tolerated,  that 
the  rights  of  parties  to  the  title  of  lands,  are  to  be  shifted  and  post- 
poned, to  their  juniors,  by  merely  colorable  proceedings  of  this 
character.  This  mode  of  redress  has  always  been  allowed  to  strang- 
ers or  tliird  persons.  Dutchess  of  Kingston's  Case,  11  State  Tr.  230; 
Crosby  v.  Leng,  12  East,  409;  Lloyd  v.  Maddox,  Moore,  917,  11 
State  Tr.  262,  i  Stark  Ev.  (6th  ed.)  259.* 

The  judgment  of  the  county  court  is  affirmed. 

*A  stranger  to  the  record  may  impeach  a  judgment  in  a  collateral  pro- 
ceeding, either  on  the  ground  of  want  of  jurisdiction  in  the  court  to  render 
it  or  of  fraud  or  collusion  between  the  parties  in  obtaining  its  entry,  if,  and 
only  if,  it  injuriously  affects  his  rights.  Warter  v.  Perry,  Cro.  Eliz.  199 
(1589)  ;  Fermor's  Case,  3  Coke  77  (1601)  ;  Vcale  v.  Gatesdon,  W.  Jones  91 
(1625)  ;  Randal's  Case,  2  Mod.  308  (1678)  ;  Pierce  v.  Jackson,  6  Mass.  242 
(1810)  ;  Griswold  v.  Stewart,  4  Cow.  (N.  Y.)  457  (iS2q)  ;  Vose  V.  Morton, 
58  Mass.  27  (1849)  ;  Douglass  v.  Howland,  24  Wend.  (N.  Y.)  35  (1840)  ; 
Downs  V.  Fuller,  43  Mass.  135,  35  Am.  Dec.  393  (1840)  ;  Gurnsey  v.  Edwards, 
26  N.  H.  224  (1853)  ;  Vandcrvcer  v.  Gaston,  24  N.  J.  L.  818  (1854)  ;  Golahar 
V.  Gates,  20  Mo.  236  (1855)  :  Brunner^s  Appeal.  a1  Pa.  67  (1864) ;  Sidensparker 
V.  Sidensparker,  52  Maine  481,  83  Am.  Dec.  527  (1864)  ;  Annett  v.  Terry,  35 
N.  Y.  256  (1866)  ;  Lee  v.  Back,  30  Ind.  148  (1868)  ;  Mecklev's  Appeal,  102 
Pa_S36  (1883)  ;  Biddle  v.  Tomltnson.  iiq  Pa.  200.  8  AtTTyJA  (1886)  :  SafFord 
V.  Weare,  142  Mass.  231,  7  N.  E.  730  (1886)  ;  Smith  v.  Cuyler,  78  Ga.  654,  3 
S.  E.  406  (1887)  ;  Eureka  Iron  &  Steel  IVks.  v.  Bresnahan,  66  Mich.  489,  33 
N.  W.  834  (1887)  ;  McCanless  v.  Sinitlt,  51  N.  J.  Eq.  505,  25  Atl.  211  (1893)  ; 
Roberts  V.  Yancy;  94  Ky.  243,  21  .S.  W.  1047,  42  Am.  St.  357  (1893)  ;  Sager  v. 
Mend.  t6/i  Pa.  i2i.,  -^q  M},  ^S.]  (1894)  ;  Shamlin  V.  Hall,  123  Ala.  541,  26  So. 
285  (1898)  ;  Safe  Deposit  Co.  v.  Wright,  105  Fed.  155  (1900)  ;  Brownwell  v. 
Snyder,  122  App.  Div.  246,  106  N.  Y.  S.  771  (1907)  ;  Sache  v.  Wallace,  loi 
Minn.  169,  112  N.  W.  386  (1907)  ;  Harpold  v.  Doyle,  16  Idaho  671,  102  Pac. 
158  (1908)  ;  Wick  V.  Rea,  54  Wash.  424,  103  Pac.  1462  (1909)  ;  Northern  Pac. 
R.  Co.  V.  Boyd,  177  Fed.  804  (1910)  ;  Hall  v.  Hall,  139  N.  Y.  App.  Div.  120, 


5()0  juix;mkxt 

CANDF.E  r.  T.ORD  AND  OTHERS 

Court  ov  AppilALS  of  Nkw  York,  1848 

2  A'.   }'.  269 

Appeal  from  the  late  Court  of  Chancery.  The  complainant 
Candcc  recovered  jiulpnent  for  $1,1^12.90  against  Russel  Lord  on 
March  29,  1844,  on  a  demand  which  existed  prior  to  the  judg-mcnts 
hereafter  mentioned.  After  execution  issued  and  returned  unsatis- 
fied, Candee  filed  this  bill  ag^ainst  the  judgment  debtor,  Henry  Lord 
and  William  Champlin,  averring  that  in  August,  1843,  Russel  Lord, 
without  consideration  and  to  defraud  his  creditors  had  confessed 
a  iucigment  to  Henry  Lord  for  $1,400  upon  which  certain  real 
estate  had  been  sold  by  the  sheriff  and  purchased  by  Henry  Lord; 
that  in  the  same  month  another  fraudulent  judgment  had  been  con- 
fessed to  William  Champlin  for  $1,250  on  which  other  real  estate 
was  sold  and  purchased  by  Champlin  and  another;  that  the  sums 
bid  on  the  sales  belonged  to  Lord's  creditors  and  claiming  that  the 
defendants  Lord  and  Champlin  should  account  therefor.  The  an- 
swers of  Champlin  and  Henry  Lord  insisted,  among  other  things, 
that  complainant's  judgment  was  obtained  in  a  suit  brought  against 
Russel  Lord  upon  a  forged  endorsement  of  a  promissory  note,  and 
this  was  insisted  upon  as  a  ground  of  defense  to  the  bill,  so  far  as 
they  were  concerned.  The  chancellor,  reversing  a  previous  order 
of  the  vice  chancellor,  awarded  issues  for  trial  by  jury,  one  of  which 
was  whether  the  endorsement  upon  which  the  complainant  obtained 
his  judgment  was  a  forgery.  From  this  order  the  complainant 
appealed.^ 

123  N.  Y.  S.  1056  (1910).  But  he  can  not  so  attack  it  for  mere  irregularities. 
Szdggari  v.  Harbcr,  5  111.  364,  39  Am.  Dec.  418  (1843)  ;  Sccrist  V.  Green,  3 
Wail.  (U.  S.)  744,  18  L.  ed.  153  (1865)  ;  Dean  v.  Thatcher,  32  N.  J.  L.  470 
(1S65)  ;  State  v.  Rogers,  131  Ind.  458,  31  N.  E.  199  (1891)  ;  Milleisen  v.  5'^M.r^- 
vmn,  4  P:'  -Siippr.  Ct.  4:;:;  (1807') ;  Allred  v.  Smith,  135  N.  Car.  443,  47  S.  E. 
597  0904)  ;  Pullman  Palace  Car  Co.  v.  Washburn,  66  Fed.  790  (1895).  Nor 
can  a  mere  disseizor  or  volunteer  collaterallj-  attack  a  judgment  to  which  he 
is  a  stranger.  Wellington  v.  Gale,  13  Mass.  483  (1816)  ;  Baugh  v.  Baugh,  37 
Mich.  59,  26  Am.  Rep.  495  (1877).  

Generally,  the  right  or  interest  prejudiced,  to  come  within  the  rule  must 
have  accrued  prior  to  the  rendition  of  the  judgment  attacked.  Doe  v.  Derby, 
I  Ad.  &  El.  783  (1834)  ;  Kunt  v.  Haven,  52  N.  II.  162  (1872)  ;  Freydewall  v. 
Baldiiin,  103  111.  325  (1P82)  ;  Hogg  v.  Link,  90  Ind.  346  (1883)  ;  Strayerj^. 
Jnlmscni.  1 10  Pa.  21.  t  At1.  22g  (1S85)  ;  Peterson  v.  Wcissbein,  80  CaT.  38^  22 
T'acTlS  (1889)  ;  Chase  v.  Kaynor,  78  Iowa  449,  43  N.  W.  269  ( 1889) ;  Dull  v. 
Blackman,  169  U.  S.  243,  42  L.  ed.  733  (1898)  ;  Bennett  v.  Wilson,  133  Cal. 
379,  65  Pac.  880,  85  Am.  St.  207  (1901)  ;  Hudkins  v.  Crim,  72  W.  Va.  418,  78 
S.  E.  1043  (1913).  Thus,  where  land  is  conveyed  subject  to  a  judgment 
and  the  judgment  debtor  fails  to  have  the  judgment  opened  or  stricken 
off  in  proceedings  brought  for  that  purpose,  the  grantee  can  not  in  a 
subsequent  action  of  ejectment  collaterally  attach  the  judgment  as  against 
one  deriving  title  through  a  sheriff's  sale  under  the  judgment.  Ross  v.  Dewey, 
215  Pa.  526,  64  Atl.  674  (1906).  Accord:  Johns  v.  Pattee,  55  Iowa  665,  8 
N.  W.  663  (1881). 

'The  statement  of  facts  is  abridged  and  the  arguments  of  counsel  and 
part  of  the  opinion  of  the  court  are  omitted. 


CANDEE   V.    LORD  56 1 

Gardiner,  J.:  The  most  important  question  in  this  cause,  is 
whether  a  judgment  obtained  without  fraud  or  collusion,  is  con- 
clusive evidence,  in  suits  between  creditors  in  relation  to  the  property 
of  the  judgment  debtor,  of  the  indebtedness  of  the  latter. 

A  debtor  may  be  said  to  sustain  two  distinct  relations  to  his 
property:  that  of  owner,  and  quasi  trustee  for  his  creditors.  As 
owner  he  may  contract  debts  to  be  satisfied  out  of  his  property, 
confess  judgments,  create  liens  upon  it,  sell  or  give  it  to  others  at 
pleasure;  and  so  far  as  he  is  personally  concerned,  will  be  bound 
by  his  own  acts.  But  the  law  lays  upon  him  an  obligation  to  pay  his 
debts,  and  holds  him  in  behalf  of  his  creditors  to  the  exercise  of 
good  faith  in  all  transactions  relating  to  the  fund  upon  which  they 
must  depend  for  payment.  He  can,  therefore,  neither  create  a  debt, 
or  do  any  of  the  things  above  mentioned  mala  fide  to  their  prejudice. 
The  common  law,  of  which  the  English  statute^  and  our  own  is  but 
the  exposition,  declares  that  every  such  debt,  judgment  or  assurance, 
contracted  or  given  with  the  intent  to  hinder,  delay  or  defraud  his 
creditors,  as  against  them,  to  be  void.  And  equity  in  many  cases 
holds  the  debtor  and  his  confederates  in  the  fraud  as  trustees  for 
the  parties  aggrieved.  The  rights  of  creditors  to  the  property  of  the 
debtor,  are  to  be  worked  out  through  the  different  relations  to  which 
I  have  alluded. 

In  creating  debts,  or  establishing  the  relation  of  debtor  and 
creditor,  the  debtor  is  accountable  to  no  one  unless  he  acts  mala  fide. 
A  judgment,  therefore,  obtained  against  the  latter  without  collusion, 
is  conclusive  evidence  of  the  relation  of  debtor  and  creditor  against 
others.  First,  because  it  is  conclusive  between  the  parties  to  the 
record  who  in  the  given  case  have  the  exclusive  right  to  establish  it  ; 
and  second,  because  the  claims  of  other  creditors  upon  the  debtor's 
property  are  through  him,  and  subject  to  all  previous  liens,  prefer- 
ences or  conveyances  made  by  him  in  good  faith.^  Any  deed,  judg- 
ment or  assurance  of  the  debtor,  so  far  at  least  as  they  conclude 
him,  must  stop  his  creditors  and  all  others.  Consequently,  neither 
a  creditor  nor  stranger  can  interfere  in  the  bona  fide  litigation  of 
the  debtor,  or  re-try  his  cause  for  him,  or  question  the  effect  of  the 
judgment  as  a  legal  claim  upon  his  estate.  A  creditor's  right,  in  a 
word,  to  impeach  the  act  of  his  debtor,  does  not  arise  until  the 
latter  has  violated  the  tacit  condition  annexed  to  the  debt;  that  he 
has  done,  and  will  do  nothing  to  defraud  his  creditors. 

Where,  however,  fraud  is  established,  the  creditor  does  not  claim 
through  the  debtor,  but  adversely  to  him,  and  by  a  title  paramount, 
which  overreaches  and  annuls  the  fraudulent  conveyance  or  judg- 
ment by  which  the  latter  himself  would  be  estopped.^    It  follows 

•Statute  of  13  Eliz.  ch.  5  (1571).  See  Tivyne's  Case,  3  Coke  80  (1602)  ; 
I  Smith's  Leading  Cases,  l  and  note. 

''Pabst  Braving  Co.  v.  Jensen,  68  Minn.  293,  71  N.  W.  384  (1897)  ;  Menc[el 
.V.  Connecticut  Fim  Ins  Cn  ,.  K  Pa.  Super  CL.dQl  (1897)  ;  Newark  City  Nat. 
Bank  V.  Crane,  60  N.  J.  Eq.  121,  45  Atl.  975  1900);  Comer  v.  Sliehce,  129 
Ala.  588,30  So.  95,  87  Am.  St.  78  (1900). 

*"A  jvidgment  which  has  heen  procured  by  the  fraudulent  contrivance  of 
the  debtor  or  the  collusion  of  both  parties  is  subject  to  collateral  attack  by 
any  one  a  stranger  to  the  judgment  who  has  been  injuriously  affected  there- 

36 — Civ.  Proc. 


t^OJ  JUDGMENT 

from  tlic  principles  suggested,  that  a  judgment  obtained  without 
frauil  or  colhision,  and  which  conckides  the  debtor;  whether  ren- 
dered upon  default,  confession,  or  after  contestation,  is  upon  all 
questions  affecting  the  title  to  his  property,  conclusive  evidence 
a<;ainst  his  creditors,  to  establish  first,  the  relation  of  creditor  and 
debtor  between  the  parties  to  the  record,  and  second,  the  amount  of 
tlie  indebtedness.  This  principle  is  assumed  in  our  statute  in  relation 
to  creditor's  bills,  2  R.  S.  174,  section  38,  and  decided  in  Rogers  v. 
Rogers,  3  Paige,  599;  2  Greenlf.  Ev.  531 ;  Marsh  v.  Pier,  4  Rawle. 
288,  9. 

It  is  immaterial  whether  the  debt  was  created  prior  or  subse- 
quent to  the  fraudulent  lien,  or  conveyance,  which  was  sought  to 
be  removed.  The  right  of  the  creditor  to  impeach  the  assurance 
of  the  debtor,  arises  out  of  the  relation  which  exists  between  them 
at  the  commencement  of  the  suit  for  tliat  purpose,  and  does  not 
depend  upon  tlie  time  when  the  fraud  was  consummated.  Hence 
a  conveyance  made  with  intent  to  defraud  subsequent  creditors  is 
void  at  their  election.  And  the  fraudulent  grantee  would  not  be 
permitted  to  allege,  in  bar  of  the  action  against  him,  that  the  parties 
seeking  relief  were  not  creditors  prior  to,  or  at  the  time  of  tlie 
conveyance.  Walker  v.  Burrows,  i  Atkyns,  94 ;  Stillman  v.  Asdown, 
2  Atkyns  481,  512;  Sezvard  v.  Jackson,  8  Cowen  431,  441 ;  Hind  v. 
Longworth,  11  Wheaton,  209;  i  Story's  Eq.,  section  356;  Jackson  v. 
Myers,  18  John  R.  425 ;  20  John  R.  472.  The  only  difference  in  the 
two  cases  is  found  in  the  degree  of  evidence  necessary  to  establish 
the  fraud.  In  this  case,  the  defendants  have  not  alleged  that  the 
iudgmcnt  of  the  complainant  was  not  obtained  in  good  faith.  ^  But 
tliey  insist  that  there  was  error  in  the  suit  in  which  it  was  obtained, 
in  the  determination  of  a  question  of  fact;  and  that  they  are  not 
concluded  by  the  defense  of  the  debtor,  because  they  are  not  in 
privity  with  him.  We  think  otherwise.  The  law  which  gave  the 
judgment  debtor  the  unlimited  right  (when  honestly  exercised)  to 
contract  debts,  to  settle  and  adjust  their  amount,  to  secure  and  to 
pay  them,  made  him  to  this  extent  tlie  representative  of  all  his 
creditors  who  should  seek  the  satisfaction  of  their  demands  out  of 
his  property ;  so  far  at  least  they  are  in  privity  with,  and  claim  under 
their  debtor.  If,  as  the  defendants  insist,  they  hold  the  property 
in  question  by  a  title  derived  under  a  valid  judgment,  prior  to  tliat 
of  the  complainant,  their  rights  can  not  be  affected  by  this  evidence. 
If,  however,  as  the  bill  alleges,  their  judgment  was  fraudulent,  the 
complainant,  as  a  creditor,  can  repudiate  it,  and  claim  the  property 
as  that  of  his  debtor,  his  acts  to  the  contrary  notwithstanding,  and 


by."  Northern  Pac.  R.  Co.  v.  Boyd,  177  Fed.  804  (1910).  Accord:  Earl  of 
Brandon  v.  Becker,  3  CI.  &  F.  479  (1835)  ;  T^'n'trnd  v  Kern<;.  ?,  Watts  (P;i.) 
180  (1834)  ;  Hammock  v.  McBride,  6  Ga.  178(1810)  ;  Park-hurst  V.  Summer,  23 
Vt.  538,  56  Am.  Dec.  94  (1851)  ;  Raymond  v.  Whitney,  5  Ohio  St.  201  (1855)  ; 
Hackett  V.  Manlove,  14  Cal.  85  (1859);  Sidensparker  v.  Sidensparker,  52 
Maine  481,  83  Am.  Dec.  527  (1864)  ;  Streety  v.  McCurdy,  104  Ala.  493,  16  So. 
686  (1894)  ;  Cook  v.  Morris,  66  Conn.  137,  33  Atl.  594  (1895)  ;  Brownell  v. 
Snyder,  122  App.  Div.  246,  106  N.  Y.  S.  771  (1907)  ;  Nixon  v.  Loundes  (1909), 
2  Irish  Rep.  K.  B.  i. 


SCOTT   V.    SHEARMAN  563 

hold  his  confederates  in  the  fraud  accountable  as  trustee  for  his 
benefit. 

My  brethren  concur  in  the  conclusions  above  stated  (but)  a 
majority  of  the  court  are  of  opinion  that  the  decision  of  the  chan- 
cellor was  upon  a  question  of  practice,  which  is  not  a  proper  subject 
of  review  in  this  court,  and  for  that  reason  the  appeal  should  be 
dismissed. 

Appeal  dismissed.^ 


(b)  Proceedings  in  Rem. 

SCOTT  V.  SHEARMAN 

Court  of  Common  Bench,  1775 

2  W.  Bl.  977 

Trespass  against  five  custom  house  officers  for  breaking  and 
entering  the  house  of  the  plaintiff  at  Harwich,  and  searching  and 
rummaging  the  same,  and  taking  away  certain  of  his  goods.  On 
Not  Guilty  pleaded,  the  cause  was  tried  at  Chelmsford  assizes  in 
Lent,  1774,  and  a  verdict  found  for  the  plaintiff,  damages  100/.  on 
this  special  case  reserved. 

The  defendants,  who  are  all  known  to  be  custom  house  officers, 
on  the  24th  of  August,  1773,  entered  the  plaintiff's  house  in  the  day 
time,  in  the  com.pany  of  the  plaintiff,  under  pretence  of  an  informa- 
tion against  run  goods,  and  demanded  of  the  plaintiff  and  his  wife 
their  keys,  which  they  refused  to  deliver,  and  desired  to  see  their 
information;  which  Shearman  refused  to  produce,  and  threatened, 

^Accord:  Voorhees  v.  Seymour,  26  Barb.  (N.  Y.)  569  (1857)  ;  Burgess  v. 
Simonson,  45  N.  Y.  225  (1871)  ;  Decker  v.  Decker,  108  N.  Y.  128,  15  N.  E. 
307  (1888)  ;  Bensimer  v.  Fell,  35  W.  Va.  15,  12  S.  E.  1078,  29  Am.  St.  774 
(1891)  ;  McCanless  v.  Smith,  51  N.  J.  Eq.  505,  25  Atl.  211  (1893)  ;  Ledoux  V. 
Bank  of  America,  24  App.  Div.  123,  48  N.  Y.  S.  771  (1897)  ;  Railroad  Equip- 
ment Co.  V.  Blair,  145  N.  Y.  607,  39  N.  E.  962  (1895)  ;  Nicholas  v.  Lord,  193 
N.  Y.  388  (1908).  Compare  Second  U'orkingmen's  Bldg.  &c.  Assn.  v.  Wick- 
ers, 83  N.  J.  Eq.  397,  91  Atl.  897   (1914). 

In  Thombson's  Appeal.  57  Pa.  St  17.^  (1868).  upon  distribution  of  the 
proceeds  of  a  sherirt's  sale  it  was  held  error  for  the  auditor,  at  the  instance 
of  junior  judgment  creditors,  to  postpone  the  lien  of  a  prior  judgment 
against  the  debtor,  on  the  ground  that  the  bond  and  warrant  upon  which  such 
judgment  had  been  entered,  had  been  obtained  by  false  representations.  The 
court  said:  "Judgment  creditors  may  attack  a  judgment  collaterally  when  it 
is  a  fraud  upon  them,  as  when  there  has  been  collusion  between  the  debtor 
and  the  creditor;  but  they  can  not  set  it  aside  merely  because  it  is  a  fraud 
upon  the  debtor."  Accord:  Dougherty's  Estate,  f  'Wnttg  Rf  's  jpn  42  Am. 
Dec.  326  (1844)  ;  Drexcl's  Appml,  f\  Pn  "^t  ■?-!■?  (rR^y)  ;  Lewis  v.  Rogers.  j6 
Pa.  18  (1851)  ;  Sxvihart  v.  Shazvm,  24  Ohio  St.  432  ( 187^ )  Tl/Iiners'  Trust  Co. 
Y.  Roseberrv.  81  Pa.  St.  30Q  (1876)  ;  Second  Nat.  Banks  Appml.  ^5  Pa  <ft 
528  (1877)  ;  Mc  Alpine  v.  Sweetser,  76  Ind.  78  (iSSi)  :  Zua'v.  S'earight,^jxo 
Pa.  St.  So6r  24  Atl.  746  (1892)  ;  Safe  Deposit  &c.  Co.  v.  Wright,  105  Fed.^^, 
44  C.  C.  A.  421  (1900)  ;  Stewart  Lumber  Co.  v.  Downs,  142  Iowa  420  (1909)  ; 
Blau  V.  Bernai^nr.r.i.  =;/[  Pa.  Super.  Ct.  Ill  (1913). 


564  JUDGMENT 

it  tlioy  would  not  give  up  their  keys,  he  would  break  open  the  locks ; 
and  aocorditip^ly  got  a  constable,  to  whom  he  i)roduced  his  wTit  of 
assistance,  and  broke  open  the  locks  of  the  chambers,  closets  and 
drawers ;  and  took  away  twenty  pints  of  Geneva  in  one  case  bottle, 
and  ten  pints  with  rue  steeped  therein  in  another  case  bottle,  which 
was  brou.L^ht  that  morning  at  five  o'clock  from  on  board  the  plain- 
tiff's vessel  (which  was  just  arrived  from  Flushing  where  she  had 
sold  a  cargo  of  fish),  and  was  part  of  the  shift's  stores.  The  de- 
fendants gave  in  evidence  a  cojiy  of  the  record  of  condemnation 
of  the  same  Geneva  in  the  Court  of  Exchequer,  Michaelmas  Term, 
1773:  And  that  the  said  Geneva,  w'hen  seised,  was  immediately 
lodged  in  the  King's  storehouse.^" 

Blackstone,  J. :  The  only  possible  ground  that  the  plaintiff  can 
rely  on  in  tJie  present  case,  which  is  unaccompanied  with  misbe- 
havior, or  any  unwarrantable  violence,  is,  that  the  goods  were  not  in 
truth  liable  to  be  seised  by  the  laws  of  the  customs;  altliough,  by 
the  plaintiff's  default,  they  have  been  condemned  in  the  Exchequer. 
But  I  take  this  condemnation  to  be  conclusive  evidence  to  all  the 
world,  that  the  goods  were  liable  to  be  seised;  and  that  therefore 
tliis  action  will  not  lie.^^ 

I.  Because  of  the  implicit  credit  which  the  law  gives  to  any 
judgment  in  a  court  of  record,  having  competent  jurisdiction  of 
the  subject-matter.  The  jurisdiction  in  this  case  of  the  Court  of 
Exchequer  is  not  only  competent,  but  sole  and  exclusive.  And 
though  it  be  said,  that  no  notice  is  given  to  the  owner  in  person, 
and  that  therefore  he  is  not  bound  by  the  condemnation,  not  being 
a  party  to  the  suit; — yet  the  seisure  itself  is  notice  to  the  owner, 
who  is  presumed  to  know  whatever  becomes  of  his  own  goods. 
He  knew  they  were  seised  by  a  revenue  officer.  He  knew  they 
were  carried  to  the  King's  warehouse.  He  knew,  or  might  have 
known,  that  by  the  course  of  law,  the  validity  of  that  seisure  would 
come  on  to  be  examined  in  the  Court  of  Exchequer,  and  could  be 
examined  nowhere  else.  He  had  notice  by  the  two  proclamations 
according  to  the  course  of  that  court.  He  had  notice  by  the  writ 
of  appraisement,  which  must  be  publicly  executed  on  the  spot  where 


"Part  of  the  statement  of  facts  and  opinion  of  the  court  are  omitted. 

"  "Judgments  or  decrees  as  to  the  status  of  the  res,  in  proceedings 
strictly  in  rem,  are  concUisive  against  all  the  world  as  to  that  status ;  while 
such  judgments  as  to  the  rights  of  parties,  wliatever  may  be  the  point 
adjudicated,  not  being  as  to  status,  are  only  conclusive  between  parties  and 
privies  to  suit."  Per  Mayfield,  J.,  in  McCann  v.  Ellis,  172  Ala.  60,  55  So.  303 
(igii)  ;  Makin's  Produce  Co.  v.  Callison,  67  Wash.  434,  121  Pac.  837  (1912). 
While  it  is  generally  said  that  a  judgment  in  rem  binds  all  the  world  perhaps 
it  is  more  accurate  to  say  that  such  a  judgment  is  conclusive  against  all  per- 
sons having  any  interest  in  the  thing  in  controversy  in  any  subsequent  pro- 
ceeding where  the  grounds  of  the  adjudication,  or  the  fact  of  its  rendition, 
or  its  legal  consequences  are  relevant.  2  Black  on  Judgments  (2d  ed.),  §  795; 
Freeman  on  Judgments  (4th  ed.),  §  617;  The  Mary,  9  Cranch  126,  3  L.  ed. 
678  (1815)  ;  Caslrique  V.  Imrie,  L.  R.  4  H.  L.  414  (1870)  ;  Bailey  v.  Sundberg, 
49  Fed.  5S3,  I  C.  C.  A.  387  (1892)  ;  Ballantyne  v.  Mackinnon,  L.  R.  (1896), 
2  Q.  B.  455.  Rx  parte  Kcnmnre  Shoe  Co.,  50  S.  Car.  140,  27  .S.  E.  682  (1897)  ; 
Simon's  Estate,  20  Pa.  Super.  Ct.  4';o  (1002)  ;  Sorensen  v.  Sorensen,  68  Neb. 
^!3o  Ti903).~  Compare  Diirant  v.  Abendorth,  97  N.  Y.  132  (1884). 


SCOTT   V.    SHEARMAN  565 

the  goods  were  detained.  And  having  neglected  this  opportunity 
of  putting  in  his  claim,  and  trying  the  point  of  forfeiture,  it  was  his 
own  laches,  and  he  shall  forever  be  concluded  by  it,  not  only  with 
respect  to  the  goods  themselves,  but  every  other  collateral  remedy 
for  taking  them.  For  it  would  be  nugatory,  to  debar  him  from 
recovering  directly  the  identical  goods  that  are  condemned,  if  he  is 
allowed  to  recover  obliquely  damages  equivalent  to  their  value, 

2.  Because,  the  property  of  the  goods  being  changed,  and  irre- 
vocably vested  in  the  Crown  by  the  judgment  of  condemnation  (as 
is  clear  beyond  any  dispute  and  conceded  on  the  part  of  the  plaintiff) 
it  follows  as  a  necessary  consequence,  that  neither  trespass  nor 
trover  can  be  maintained  for  taking  tliem  in  an  orderly  manner. 
For  the  condemnation  has  a  retrospect  and  relation  backwards  to 
the  time  of  tlie  seisure.  The  spirituous  liquors  that  were  seised  were 
therefore,  at  the  time  of  the  seisure,  the  goods  and  chattels  of  his 
Majesty,  and  not  of  the  plaintiff,  as  in  his  declaration  he  has  (nec- 
essarily) declared  them  to  be ;  since  neither  trespass  nor  trover  will 
lie  for  taking  of  goods,  unless  at  the  time  of  the  taking,  tlie  property 
was  in  the  plaintiff. 

This  reasoning  is  supported  by  authorities  expressly  in  point. 
In  Gilbert's  Treatise  of  the  Exchequer,  ch.  13,  it  is  clearly  shown, 
in  what  manner  these  informations  in  rem,  which  were  instituted 
in  order  to  give  the  Crown  possession  of  its  ancient  prerogative 
revenues  of  wrecks,  deodands,  estrays  and  the  like,  by  degrees  came 
afterward  to  be  applied  to  the  forfeitures  enacted  by  the  statute 
\q.\y,  for  offenses  against  the  laws  of  the  customs  and  excise.  And 
it  is  expressly  laid  down,  page  i86,  that  "the  very  seising  of  the 
goods  is  notice  to  the  claimer,  and  an  undertaking  to  proceed  to  con- 
demnation according  to  the  rules  of  the  court." 

The  retrospect  or  relation  backward  in  these  informations  was 
the  same  as  in  the  inquests  of  office.  And  there  is  in  Keilw.  68,  b. 
in  the  King's  Bench,  21  H.  7,  a  remarkable  case  of  retrospect  in 
the  case  of  a  deodand.  The  king's  officer  had  seised  the  instrument 
of  death  immediately  after  the  accident ;  but  no  inquisition  was  had 
till  a  year  afterward,  when  the  goods  were  found  to  be  a  deodand. 
Upon  trespass  brought  against  the  officer  for  seising  the  goods,  the 
court  held,  that  the  inquisition  related  back  to  the  death,  that  the 
seisure  therefore  was  lawful,  and  no  action  of  trespass  would  lie. 

The  case  also  of  fugitive's  goods  is  a  strong  instance  to  show 
how  conclusive  the  law  esteems  the  judgment  of  forfeiture  to  be, 
when  pronounced  by  a  legal  and  competent  tribunal.  If  the  cor- 
oner's inquest  finds  a  man  guilty  of  homicide,  and  that  he  fled  for  it ; 
though  he  may  traverse  the  crime,  and  be  acquitted  of  the  felony, 
yet  he  can  not  traverse  the  flight,  by  which  his  goods  are  forfeited 
to  the  king.  8  Ed.  4.  4. ;  i  Hal.  P.  C.  416;  2  Hal.  P.  C.  64.  And 
therefore,  though  the  petty  jury  expressly  acquit  him  of  both  the 
felony  and  the  flight,  their  verdict  as  to  the  flight  shall  be  void; 
for  they  ought  not  to  inquire  of  the  flight,  after  it  has  been  once 
found,  and  the  forfeiture  vested  in  the  Crown  by  ihe  coroner's 
inquest.   Fitz.  Abr.  Forfeiture  35,  Staundf.  P.  C.  183,  and  Prero?. 


566  JUDGMENT 

46;  Dvcr  238  b. ;  2  llal.  P.  C.  301.  The  reason  given  in  some  of 
the  books  wliy  this  inciuest  is  not  traversable,  like  other  inquests  of 
office,  is  because  of  tJie  notoriety  of  the  coroner's  inquest  super 
visum  corporis,  at  which  the  inhabitants  of  all  the  neighboring  vills 
are  bound  to  attend ;  and  so  the  finding  of  the  flight  is  but  in  effect 
recording  the  absence  of  tlie  party.  There  is  surely  as  much  notori- 
etA'  of  the  information  in  the  Exchequer  against  uncustomed  goods; 
and  the  absence  or  default  of  the  party  shall  be  equally  conclusive 
against  him. 

But  the  legal  decision  of  this  question  does  not  rest  on  theory 
or  analogy  only.  It  hath  been  determined  over  and  over  in  tlie 
very  point.  Vanderhurg  v.  Blake,  Tr.  13  Car.  2.  In  the  Exchequer, 
Hardr.  194,  it  was  held  the  seisure  and  proclamation  are  sufficient 
notice  to  tlie  owner ;  and  that  neither  trover,  nor  action  for  malici- 
ous information,  nor  other  action  which  may  blow  off  the  judg- 
ment by  a  sidewind,  will  lie  after  a  condemnation  in  the  Exchequer. 
Elkins  V.  Smith,  M.  31  Car.  2.  In  the  Exchequer,  Raym.  335,  and 
cited  per  cur.  Carth.  327.  After  condemnation  the  property  is 
altered,  so  as  neitlier  trespass,  nor  trover  will  lie  for  the  proprietor 
against  the  person  that  seiseth  them.  Martin  v.  Wilsford,  T.  6  W. 
&  ]\I.  In  the  Exchequer,  Carth.  323.  After  judgment  upon  an 
information  of  seisure,  the  property  is  altered  thereby,  so  as  neither 
trover  nor  trespass  will  lie  for  him  who  was  the  owner,  and  it  is  not 
reasonable  that  a  judgment  should  be  subverted  by  a  collateral  action. 
And  in  Robinson  qui  tarn.  v.  Verfelt  et  al.,  Tr.  2  Geo.  2,  in  the 
Exchequer  (according  to  a  note  of  Sir  Thomas  Parker,  late  C.  B.) 
Pengelly,  C.  B.,  held,  that  if  a  stranger  claims  property  on  the 
information  and  on  the  trial  a  forfeiture  is  found,  by  the  condemna- 
tion the  property  is  altered  against  the  right  owner,  though  he  be 
not  the  claimer  on  record.  The  general  doctrine  has  been  recognized 
in  the  King's  Bench  in  1705,  in  the  case  of  Stafford  v.  Stevens,  and 
in  1731,  in  that  of  Butley  v.  U^alter,  according  to  notes  furnished 
by  the  custom  house  books,  and  in  a  variety  of  nisi  prius  cases  from 
the  same  quarter ;  to  which  may  be  added  two  instances  from  Viner, 
tit.  Evidence,  p.  95,  where  the  same  point  was  ruled  by  Price,  B.,  in 
1716,  and  King,  Chief  Justice,  in  1719. 

Judgment  for  the  defendants. ^^ 

De  Grey,  C.  J.,  Gould,  J.,  and  Nares,  J.,  concurrsd. 

"Accord:  Cooke  v.  Sholl,  5  T.  R.  255  (1703)  ;  King  v.  Matthews,  S  Price 
202  (1797);  Buchannan_y.  Bipqs.  2  Yeates  (Pa.)  2.-^2  (1797);  Hart  v.  Mc- 
Kamara,  4  Price,  I54n~(l8i7)';  Uelston  v.  iioyt,  3  Wheat.  (U.  S.)  246,  4  L. 
ed.  381  (1818),  affg.  13  Johns.  561;  Whitncv  v.  ll^alsh,  55  Mass.  29,  48  Am. 
Dec.  590  (1848)  ;  Averill  v.  S7}iith,  84  U.  S.  82,  21  L.  ed.  613  (1872)  ;  Windsor 
V.  McVeigh,  93  U.  S.  274,  23  L.  ed.  914  (1876)  ;  McGuire  v.  Winslow,  26  Fed. 
304  (1886)  ;  In  re  Gottcsfeld.  2.d=;  Pa  314,  Qi  Atl.  404  (iQld). 

"A  judgment  in  rem  is  founded  on  a  proceeding  instituted,  not  against 
the  person,  as  such,  but  against  or  upon  the  thing  or  subject-matter  itself, 
whose  state,  or  condition,  is  to  be  determined.  It  is  a  proceeding  to  determine 
the  state  or  condition,  of  the  thing  itself;  and  the  judgment  is  a  solemn 
declaration  upon  the  status  of  the  thing,  and  it  ipso  facto  renders  it  what  it 
declares  it  to  be."  Per  Hall,  J.,  in  Woodruff  v.  Taylor,  20  Vt.  63  (1847).  "If 
the  technical  object  of  the  suit  is  to  establish  a  claim  against  some  particular 
person,  with  a  judgment  which  generally,  in  theory  at  least,  binds  his  body, 


FREEMAN    V.    ALDERSON  5^7 

FREEMAN  v.  ALDERSON 

Supreme  Court  of  the  United  States,  1886 

119  U.  S.  i8s 

The  following  was  the  case  as  stated  by  the  court. 

This  was  an  action  of  trespass  to  try  the  title  to  certain  land  in 
Texas  brought  in  the  United  States  Circuit  Court. 

The  plaintiffs  in  error,  defendants  below,  claimed  the  land  under 
a  deed  to  their  grantor,  executed  by  the  sheriff  of  McLennan  County, 
in  that  state,  upon  a  sale  under  an  execution  issued  on  a  judgment 
in  a  state  court  for  costs,  rendered  against  one  Henry  Alderson,  tlien 
owner  of  the  property,  but  now  deceased. 

The  defendants  in  error,  plaintiffs  below,  asserted  title  to  the 
land  as  heirs  of  Alderson,  contending  that  the  judgment,  under 
which  the  alleged  sale  was  made  was  void,  because  it  was  rendered 

or  to  bar  some  individual  claim  or  objection,  so  that  only  certain  persons  are 
entitled  to  be  heard  in  defense,  the  action  is  in  personam,  although  it  may 
concern  the  right  to  or  possession  of  a  tangible  thing.  If,  on  the  other  hand, 
the  object  is  to  bar  indifferently  all  who  might  be  minded  to  make  an  objec- 
tion of  any  sort  against  the  right  sought  to  be  established,  and  if  any  one  in 
the  world  has  a  right  to  be  heard  on  the  strength  of  alleging  facts  which,  if 
true,  show  an  inconsistent  interest,  the  proceeding  is  in  rem!'  Per  Holmes, 
C.  J.,  in  Tyler  v.  Court  of  Registration,  175  Alass.  71,  55  N.  E.  812,  51  L.  R.  A. 
433  (1900).  See  also  Mankin  v.  Chandler,  2  Brock.  125,  Fed.  Cas.  No.  9030 
(1823)  ;  Hamnerv.  Griffith,  1  Gr.  Cas.  (Pa)  IQ3  (1854)  ;  Lord  v.  Chadhourne, 
42  Maine  429,  65  Am.  Dec.  290  (1856)  ;  McClurg  v.  Terry,  21  N.  J.  Eq.  225 
(1870)  ;  State  v.  Central  Pacific  R.  Co.,  10  Nev.  47  (1875),  P-  80;  Martin  v. 
King,  72  Ala.  3^4  (1882)  ;  Cross  v.  Armstrong,  44  Ohio  St.  613,  10  N.  E.  160 
(1887)  ;  Holly  River  C.  Co.,  v.  Howell,  36  W.  Va.  489,  15  S.  E.  214  (1892)  ; 
Francis  Times  &  Co.  v.  Carr,  82  L.  T.  698  (1900). 

To  formulate  a  test,  the  application  of  which,  in  every  instance,  will 
determine  whether  a  particular  judgment  is  in  rem  is  difficult,  because  the 
nature  and  purpose  of  the  proceeding  and  scope  of  the  remedy  are  determin- 
ing factors  in  the  instances  in  which  adjudications  are  binding  upon  all,  and 
they  rest  on  ancient  practice  or  positive  legislation  rather  than  on  logical 
analysis.  The  following  are  examples :  Condemnations  or  forfeitures  for 
breach  of  the  excise  or  revenue  laws,  cases  cited  in  principal  case  and  supra; 
decrees  in  admiralty,  Transportation  Co.  v.  Fitzhugh,  i  Black  (U.  S.)  574 
(1861)  ;  The  Cella,  L.  R.  13  P.  D.  82  (1888)  ;  Ballantyne  v.  Mackinnon,  L.  R. 
(1896),  2  Q.  B.  455;  Minna  Craig  S.  Co.  v.  Chartered  M.  Bank,  L.  R.  (1897), 
I  Q.  B.  460;  decrees  of  prize  courts,  Hughes  v.  Cornelius,  2  Shower,  232 
(1682)  ;  Penhallow  v.  Doane,  3  Dall.  54  (i795)  ;  Geyer  v.  Aguilar,  7  T.  R.  681 
(1778);  Wheelvuright  v.  Depeyster,  i  Johns.  (N.  Y.)  471,  3  Am.  Dec.  345 
(1806);  judgments  establishing  highways,  Millcreek  Tp^V^^^ed,  29  Pa.  St. 
195  (1857)  ;  Wakefield  v.  Cooke,  L.  R.  (1904),  A.  C.  31 ;  orders  of  naturaliza- 
tion, McCarthy  v.  Marsh,  S  N.  Y.  263  (1851)  ;  Commomvealth  v._Sim,tLSim, 
7  Phila  (P-O  84  (1868)  ;  State  v.  Floeflinger,  35  Wis. "393  (1874)  ;  decrees 
adjudging  a  debtor  a  bankrupt,  Shawhan  v.  Wherritt,  48  U.  S.  627  (1849); 
Michaels  v.  Post,  88  U.  S.  398,  22  L.  ed.  520  (1874),  P-  428;  Mount  v.  Man- 
hattan Co.,  41  X.  J.  Eq.  211,  3  Atl.  726  (1886)  ;  Broivn  v.  Smart,  69  Md.  320, 
14  Atl.  468,  17  Atl.  1 101  (1888)  ;  orders  establishing  the  status  and  settlement 
of  a  pauper,  IVpst  fluff nln  v  Walker  Tp..  8  Pa.  177  (iSaS)  :  Jennison  v.  West 
Springfield,  79r~(T^ass.)  544  (1859)  ;  Uxbridge  Union  v.  Winchester  Union, 
91  L.  T.  533  (1904)  ;  a  sentence  of  expulsion  from  college,  Kex  v.  Grundon, 
I  Cowp.  315  (1775). 


5(.)S  JUDGMENT 

a£::ainst  hini  ^vltllont  personal  service  of  citation,  or  his  appearance  in 
the  action. 

The  material  facts  of  the  case,  as  disclosed  by  the  record,  arc 
brielly  tlicsc:  On  the  i6th  of  July,  1855,  a  tract  of  land  comprising 
one-tliird  of  a  league  was  patented  by  Texas  to  yMderson,  who  had 
been  a  soldier  in  its  army.  One  undivided  half  of  this  tract  was 
claimed  by  D.  C.  Freeman  and  G.  R.  Freeman,  and  they  brought 
an  action  against  him  for  their  interest.  The  pleadings  in  that 
action  are  not  set  forth  in  the  transcript,  but  from  the  record  of 
the  judgment  therein,  which  was  produced,  we  are  informed  that 
the  defendant  was  a  nonresident  of  the  state,  and  that  the  citation 
to  him  was  made  by  publication.  There  was  no  personal  service 
upon  him,  nor  did  he  appear  in  tlie  action.  The  judgment,  which 
was  rendered  on  the  ist  of  October,  1858,  was  of  a  threefold  char- 
acter. It  first  adjudged  that  the  plaintiffs  recover  one  undivided  half 
of  tlie  described  tract.  It  then  appointed  commissioners  to  partition 
and  divide  the  tract,  and  set  apart,  by  metes  and  bounds,  one-half 
thereof,  according  to  quantity  and  quality,  to  the  plaintiffs ;  and  to 
make  their  report  at  the  following  term  of  the  court.  And  finally,  it 
ordered  that  the  plaintiffs  have  judgment  against  the  defendant  for 
all  costs  in  the  case,  but  stayed  execution  until  the  report  of  the 
commissioners  should  be  returned  and  adopted  and  a  final  decree 
entered. 

At  the  following  term,  the  commissioners  made  a  report  show- 
ing that  they  had  divided  the  tract  into  two  equal  parcels.  The 
report  was  confirmed,  and  on  the  31st  of  March,  1859,  the  court 
adjudged  that  the  title  to  one  of  these  parcels  was  divested  from 
Alderson  and  vested  in  the  plaintiffs,  the  two  Freemans,  and  that 
they  recover  all  costs  in  that  behalf  against  him,  which  were  $61.45, 
and  that  execution  issue  therefor.  Execution  therefor  was  issued 
to  the  sheriff  of  JMcLennan  County  on  the  30th  of  May,  directing 
him  to  make  the  amount  out  of  "the  goods,  chattels,  lands  and 
tenements"  of  the  defendant.  It  was  levied  on  the  other  half  of  the 
divided  tract,  which  remained  the  defendant's  property.  On  the 
5th  of  July,  1859,  this  half  was  sold  by  the  sheriff  to  one  James  E. 
Head  for  $66.79,  being  the  costs  mentioned  and  his  fees  for  the 
levy  and  for  his  deed,  which  was  executed  to  the  purchaser.  In 
September  following.  Head  conveyed  the  premises  to  D.  C.  Free- 
man, for  the  alleged  consideration  of  $178.  On  the  trial,  the  de- 
fendants, to  show  title  out  of  the  plaintiffs,  offered  in  evidence  the 
judgment  for  the  costs,  the  execution  issued  thereon,  and  the 
sheriff's  deed;  to  the  introduction  of  which  the  plaintiffs  objected, 
on  the  ground  that  the  judgment  for  costs  was  a  judgment  in  per- 
sonam, and  not  in  rem,  and  was  ordered  against  the  defendant,  who 
was  a  nonresident  of  the  state,  without  his  appearance  in  the  action 
or  personal  service  of  citation  upon  him,  but  upon  a  citation  by 
publication  only,  and  therefore  constituted  no  basis  of  title  in  the 
purchaser  under  the  execution. 

The  court  sustained  the  objection  and  excluded  the  documents 
from  the  jury;  and  the  defendants  excepted  to  the  ruling.    No 


FREEMAN    V.    ALDERSON  569 

other  evidence  of  title  being  produced  by  the  defendants,  a  verdict 
was  found  for  the  plaintiffs,  and  judgment  in  their  favor  v^as  entered 
thereon ;  to  review  which  the  case  is  brought  to  this  court  on  a  writ 
of  error. 

Field,  J. :  Actions  m  rem,  strictly  considered,  are  proceedings 
against  property  alone,  treated  as  responsible  for  the  claims  asserted 
by  the  libellants  or  plaintiffs.  The  property  itself  is  in  such  actions 
the  defendant,  and,  except  in  cases  arising  during  war  for  its  hostile 
character,  its  forfeiture  or  sale  is  sought  for  the  wrong,  in  the 
commission  of  which  it  has  been  the  instrument,  or  for  debts  or 
obligations  for  which  by  operation  of  law  it  is  liable.  The  court 
acquires  jurisdiction  over  the  property  in  such  cases  by  its  seizure, 
and  of  the  subsequent  proceedings  by  public  citation  to  the  world, 
of  which  the  owner  is  at  liberty  to  avail  himself  by  appearing  as  a 
claimant  in  the  case. 

There  is,  however,  a  large  class  of  cases  which  are  not  strictly 
action  m  rem,  but  are  frequently  spoken  of  as  actions  quasi  in  rem, 
because,  though  brought  against  persons,  they  only  seek  to  subject 
certain  property  of  those  persons  to  the  discharge  of  the  claims 
asserted.  Such  are  actions  in  which  property  of  nonresidents  is 
attached  and  held  for  the  discharge  of  debts  due  by  them  to  citizens 
of  the  state,  and  actions  for  the  enforcement  of  mortgages,  and 
other  liens.  Indeed,  all  proceedings  having  for  their  sole  object  the 
sale  or  other  disposition  of  the  property  of  the  defendant  to  satisfy 
the  demands  of  the  plaintiff,  are  in  a  general  way  thus  designated. 
But  they  differ,  among  other  things,  from  actions  which  are  strictly 
in  rem,  in  that  the  interest  of  the  defendant  is  alone  sought  to  be 
affected,  that  citation  to  him  is  required,  and  that  judgment  therein 
is  only  conclusive  between  the  parties.^^ 

The  state  has  jurisdiction  over  property  within  Its  limits  owned 
by  nonresidents,  and  may,  therefore,  subject  it  to  the  payment  of 
demands  against  them  of  Its  own  citizens.^*  It  is  only  in  virtue 
of  Its  jurisdiction  over  the  property,  as  we  said  on  a  former  occa- 
sion, that  its  tribunals  can  inquire  into  the  nonresident's  obligations 
to  its  own  citizens;  and  the  Inquiry  can  then  proceed  only  so  far 
as  may  be  necessary  for  the  disposition  of  the  property.  If  the  non- 
resident possesses  no  property  in  the  state,  there  is  nothing  upon 
which  its  tribunals  can  act.  Pennoyer  v.  Neff,  95  U.  S.  714.  They 
can  not  determine  the  validity  of  any  demand  beyond  that  which  is 
satisfied  by  the  property.  For  any  further  adjudication,  the  de- 
fendant^  must  be  personally  served  with  citation  or  voluntarily 
appear  in  the  action.   The  laws  of  the  state  have  no  operation  out- 

"  "It  is  better  to  distinguish  between  proceedings  in  rem  and  proceedings 
quasi  in  rem.  The  latter  are  assimilated  to  the  former  in  some  particulars, — 
as  in  respect  to  the  manner  of  acquiring  jurisdiction,— but  are  not  always 
attended  by  the  same  consequences — in  respect,  for  example,  to  the  persons 
bound  by  the  adjudication."   2  Black  Judgments  (2d  ed.),  §  793. 

^Klark  v.  Smith,  13  Pet.  195,  10  L.  ed.  123  (1839)  ;  Parker  v.  Overman,  18 
How.  (U.  S.)  137,  15  L.  ed.  318  (185s)  ;  United  States  v.  Fox,  94  U.  S.  315, 
24  L.  ed.  192  (1876)  ;  Hulinci  v.  Kaw  Valley  R-  &c.  Co.,  130  U.  S.  559,  9  Sup 
Ct.  603,  32  L.  ed.  1045  (1889)  ;  Olmsted  v.  Olmsted,  216  U.  S.  386  (1909). 


570  JUDGMENT 

side  of  Its  territory,  except  so  far  as  may  be  allowed  by  comity;  its 
tribunals  can  not  send  their  citation  beyond  its  limits  and  require 
parties  there  domiciled  to  respond  to  proceedings  against  them ;  and 
publication  of  citation  within  the  state  can  not  create  any  greater 
obligation  upon  them  to  appear.  So,  necessarily,  such  tribunals  can 
ha\c  no  iurisdiction  to  pass  upon  the  obligation  of  nonresidents, 
except  to  the  extent  and  for  the  purpose  mentioned.^^ 

This  doctrine  is  clearly  stated  in  Cooper  v.  Reynolds,  lo  Wall. 
308,  where  it  became  necessary  to  declare  the  effect  of  a  personal 
action  against  an  absent  party  without  the  jurisdiction  of  the  court, 
and  not  served  with  process  or  voluntarily  appearing  in  the  action, 
and  whose  property  was  attached,  and  sought  to  be  subjected  to 
the  payment  of  tlie  demand  of  the  resident  plaintiff.  After  stating 
the  general  purpose  of  the  action,  and  the  inability  to  serve  process 
upon  the  defendant,  and  the  provision  of  law  for  attaching  his 
property  in  such  cases,  tlie  court,  speaking  by  ]\Ir.  Justice  Aliller, 
said:  "If  the  defendant  appears,  the  cause  becomes  mainly  a  suit 
in  personam,  Avith  the  added  incident  that  the  property  attached 
remains  liable,  under  the  control  of  the  court,  to  answer  to  any 
demand  which  may  be  established  against  the  defendant  by  the  final 
judgment  of  the  court.  But  if  there  is  no  appearance  of  the  defend- 
ant, and  no  service  of  process  on  him,  the  case  becomes  in  its  essen- 
tial nature  a  proceeding  hi  rem,  the  only  effect  of  which  is  to  subject 
the  property  attached  to  the  payment  of  the  demand  which  the  court 
may  find  to  be  due  to  the  plaintiff.  That  such  is  the  nature  of  this 
proceeding  in  this  latter  class  of  cases  is  clearly  evinced  by  two 
well-established  propositions:  First,  the  judgment  of  the  court, 
though  in  form  a  personal  judgment  against  the  defendant,  has  no 
effect  beyond  the  property  attached  in  that  suit.  No  general  execu- 
tion can  be  issued  for  any  balance  tmpaid  after  the  attached  property 
is  exhausted.  No  suit  can  be  maintained  on  such  a  judgment  in  the 
same  court,  or  in  any  other ;  nor  can  it  be  used  as  evidence  in  any 
other  proceeding  not  affecting  the  attached  property ;  nor  could  the 
costs  in  that  proceeding  be  collected  of  defendant  out  of  any  other 
property  than  that  attached  in  the  suit.  Second,  the  court,  in  such  a 
suit,  can  not  proceed  unless  the  officer  finds  some  property  of  de- 
fendant on  which  to  levy  the  writ  of  attachment.  A  return  that 
none  can  be  found  is  the  end  of  the  case,  and  deprives  the  court  of 
further  iurisdiction,  though  the  publication  may  have  been  duly 
made  and  proven  in  court." 

To  this  statement  of  the  law  it  may  be  added,  what,  indeed,  is  a 
conclusion  from  the  doctrine,  that  whilst  the  costs  of  an  action  may 
properly  be  satisfied  out  of  the  property  attached,  or  otherwise 


^Kxlhurn  v.  Woodzvorth,  5  Johns.  (N.  Y.)  37,  4  Am.  Dec.  321  (1809); 
Borden  v.  Fitch,  15  Johns.  (N.  Y.)  121,  8  Am.  Dec.  225  (1818)  ;  Ewer  v. 
Coffin,  55  Mass.  23,  48  Am.  Dec.  587  (1848)  ;  D'Arcy  v.  Kctchum,  11  How. 
(U.  S.)  165,  13  L.  ed.  648  (1850)  ;  Bisclwff  v.  Wethered,  g  Wall.  (U.  S.)  812, 
19  L.  ed.  829  (1869);  Thompson  v.  Whitman,  85  U.  S.  4S7,  21  L.  ed.  897 
(1873);  Heziitson  v.  Fabre,  L.  R.  21  Q.  B.  Div.  6  (1888);  Wetmore  v. 
Karrick,  205  U.  S.  141,  51  L.  ed.  745  (1906)  ;  Brown  v.  Fletcher's  Estate,  210 
U.  S.  82,  52  L.  ed.  966  (1907). 


FREEMAN    V.    ALDERSON  57I 

brought  under  the  control  of  the  court,  no  personal  liability  for  them 
can  be  created  against  the  absent  or  nonresident  defendant;  the 
power  of  the  court  being  limited,  as  we  have  already  said,  to  the 
disposition  of  the  property,  which  is  alone  within  its  jurisdiction. 

The  pleadings  in  the  case  in  which  judgment  was  rendered  for 
costs  against  Alderson  are  not  before  us.  We  have  only  the  formal 
judgment,  from  which  it  should  seem  that  the  action  was  to  recover 
an  undivided  interest  in  the  property,  and  then  to  obtain  a  partition 
of  it,  and  have  that  interest  set  apart  in  severalty  to  the  plaintiffs — 
a  sort  of  mixed  action  to  try  the  title  of  the  plaintiffs  to  the  un- 
divided half  of  the  property,  and  to  obtain  a  partition  of  that  half. 
Such  action,  though  dealing  entirely  with  realty,  is  not  an  action 
in  rem  in  the  strict  sense  of  the  term ;  it  Is  an  action  against  the 
parties  named,  and,  though  the  recovery  and  partition  of  real  estate 
are  sought,  that  does  not  change  its  character  as  a  personal  action; 
the  judgment  therein  binds  only  the  parties  in  their  relation  to  the 
property.  The  service  of  citation  by  publication  may  suffice  for  the 
exercise  of  the  jurisdiction  of  the  court  over  the  property  so  far  as 
to  try  the  right  to  its  possession,  and  to  decree  its  partition ;  but  it 
could  not  authorize  the  creation  of  any  personal  demand  against  the 
defendant,  even  for  costs,  which  could  be  satisfied  out  of  his  other 
property. 

The  judgment  is  for  all  the  costs  in  the  case,  and  no  order  is 
made  tliat  they  shall  be  satisfied  out  of  the  property  partitioned. 
Had  satisfaction  been  thus  ordered,  no  execution  would  have  been 
necessary.  The  execution,  also,  is  general  in  its  direction,  com- 
m.anding  the  sheriff  to  make  the  costs  out  of  any  property  of  the 
defendant. 

The  judgment,  as  far  as  the  costs  are  concerned,  must,  there- 
fore, be  treated  as  a  judgment  in  personam,  and,  for  the  reason 
stated,  it  was  without  any  binding  obligation  upon  the  defendant; 
and  the  execution  issued  upon  it  did  not  authorize  the  sale  made, 
and,  of  course,  not  the  deed  of  the  sheriff.  Were  the  conclusion 
otherwise,  it  would  follow,  as  indeed  it  is  claimed  here,  that  a  joint 
owner  of  real  property  might  sue  a  nonresident  cotenant  for  parti- 
tion, and,  having  had  his  own  interest  set  apart  to  himself,  proceed 
to  sell  out  on  execution  the  interest  of  his  cotenants  for  all  the  costs. 

The  judgment  of  the  court  below  must  be  affirmed.^^ 

"  "Proceedings  in  partition  or  to  quiet  title  are  not  strictly  proceedings 
in  rem,  for  they  are  not  taken  directly  against  property,  but  they  are  re- 
garded, so  far  as  they  affect  property,  as  proceedings  in  rem  sub  modo,  in 
respect  of  which,  while  there  must  be  reasonable  notice  to  the  parties,  personal 
service  is  not  essential  to  jurisdiction  and  constructive  service  may  Tdc  substi- 
tuted." Per  Fuller,  C.  J.,  in  Meyer  v.  Kuhn,  65  Fed.  705,  13  C.  C.  A.  298 
(1895).  Accord:  Pillshury  v.  Dimgan,  9  Ohio,  118  (1839)  ;  Dillon  v.  Heller, 
39  Kans.  599,  18  Pac.  693  (1888)  ;  Arndt  v.  Griggs,  134  U.  S.  316,  10  Sup.  Ct. 
557,  2Z  L.  ed.  918  (1889);  Allred  v.  Smith,  135  N.  Car.  443,  47  S.  E.  597,  65 
L.  R.  A.  924  (1904). 

Proceedings  regarded  as  quasi  in  rem  include:  Actions  commenced  by 
attachment  of  property,  Cliilds  v.  Diahv.  2.A  Pa.  2X  (1854")  ;  Gleason  v.  IVilson, 
48  Kans.  500,  29  Pac.  69^  (1892)  ;  Soulard  v.  Vacuum  Oil  Co.,  109  Ala.  387, 


57J  JUDGMENT 

(c)   Probate  and  Administration 

JONE  NOELL  r.  WELLS 

Court  ov  King's  Bench,  1668 

I  I.czinc22S" 

Debt  by  the  plaintiff  as  executrix  to  her  Inisband — the  defend- 
'ant  pleads  never  executrix — and  on  a  trial  the  plaintiff  produced 
the  probate  of  the  will  in  evidence — the  defendant  said,  that  the  will 
was  not  true,  but  a  forged  will.  And  the  chief  justice,  before  whom 
it  Avas  tried,  was  of  opinion,  that  he  could  not  give  such  evidence 
directly  contrary  to  the  seal  of  the  Ordinary  in  a  matter  within  his 
jurisdiction,  whereupon  a  case  was  made  for  the  opinion  of  the 
court,  and  a  verdict  taken  for  the  plaintiff,  but  judgment  to  be  staid 
if  the  court  should  be  of  opinion,  that  such  evidence  might  be  given  ; 
and  upon  motion  the  whole  court  held,  that  it  could  not  be  given. 
But  evidence  may  be  given,  that  the  seal  was  forged  or  repealed,  or 
that  there  were  bona  notahilia,  for  those  confess  and  avoid  the  seal. 
But  he  can  not  give  in  evidence  that  another  was  executor;  or  that 
the  testator  was  non  compos  mentis,^^  for  those  falsify  the  proceed- 
ings of  the  Ordinary  in  cases  of  which  he  is  judge.  But  those  are  to 
be  remedied  by  appeal. ^^ 

19  So.  414  (1895)  ;  Oil  Well  Supt^ly  Co.  v.  Kocn,  64  Ohio  St.  422,  60  N.  E. 
603  (1901)  ;  Glcnny  v.  Boyd,  26  Pa.  Super.  Ct.  380  (1904)  :  inquisitions  of 
lunacy,  Den  v.  Clark,  10  N.  J.  L.  217,  18  Am.  Dec.  417  (1828)  ;  Rg^ers^v. 
Walkerjji  Pa.  St.  371,  47  Am.  Dec.  470  (1847)  ;  Van  Dcusen  v.  Sweet,  51 
M.  V.  378  (1873)  ;  Hughes  v.  Jones,  116  N.  Y.  67,  22  N.  E.  446,  5  L.  R.  A. 
637,  15  Ann.  St.  386  (1889)  ;  foreclosure  of  liens,  White  v.  Williams,  3  N.  J. 
Eq.  376  (1836);  Dclanev  w,_Ganlt,  30  Pa.  St.,  63  .Cl8.s8)  ;  Williams  v.  Ives, 
49  111.  512  (1869)  ;  Lehman  v.  Hinton,  44  W.  Va.  I,  29  S.  E.  984  (1897)  ; 
Smith  V.  Moore,  112  Iowa  60,  83  N.  W.  813  (1900).  As  to  divorce  compare 
Bater  v.  Batcr,  L.  R.  (1906)  P.  D.  209,  with  Haddock  v.  Haddock,  201  U.  S. 
562,  26  Sup.  Ct.  525,  50  L.  ed.  867  (1905)  ;  as  to  marriage,  Meadozvs  v.  King- 
ston, Amb.  756  (1775);  Duchess  of  Kingston  Case,  20  How.  St.  Tr.  355 
(1776). 

^'S.  C.  I  Sid.  359,  where  the  action  is  reported  as  trover  and  conversion. 

^'Accord:  C^ommnmucalth  v.  J\fntrer,  l6  Scrg.  ■&  R.  (Pa.)  416  (1827); 
Colton  V.  Ross,  2  Paige,  Ch.  (N.  Y.)  396,  22  Am.  Dec.  648  (1831)  ;  Vermont 
Baptist  State  Convention  v.  Ladd,  59  Vt.  5,  9  Atl.  i  (1886)  ;  Clapp  v.  Vatcher, 
9  Cal.  App.  462,  99  Pac.  549  (1908),  at  least  as  to  those  entitled  to  be  heard  in 
the  probate  proceedings.  Sly  v.  Hunt,  159  Mass.  151,  34  N.  E.  187,  21  L.  R.  A. 
680  (1892)  ;  distinguishing  Brigham  V.  Fayerwcather,  140  l^Iass.  411,  5  N.  E. 
265  (1886),  where  on  bill  to  set  aside  A's  deed  to  a  stranger,  the  probate  of 
A's  will  was  held  inadmissible  as  evidence  of  A's  sanity.  See  also  Brown  v. 
Brown,  209  Alass.  388,  95  N.  E.  796  (1911).  As  to  refusal  of  probate,  com- 
pare Arnold  v.  Arnold,  (Ky.)  16  S.  W.  585  (1891)  ;  In  re  Goldsticker,  192  N.  Y. 
35,  84  N.  E.  581  (1908),  with  McCoys.  Clayton.  119  Pa.  St.  133,  12  Atl.  860 
(1888). 

Where  no  appeal  has  been  taken  from  the  probate  of  a  will  within  the 
time  required  by  law,  a  gift  thereunder  can  not  be  impeached  on  the  grovmd 
that  testator  was  not  of  age  when  he  executed  the  will.  Stout jv.  Young,  217 
Pa^ 4^,  66  Atl.  659  (1907). 

j\ccord:    Plume  v.  Beale,  I  Peere,  Wm.  388,  2  Eq.  Ca.  Abr.  421  (1717)  ; 
Kcrrick  v.  Bransby,  7  Bro.  P.  C.  358  (1727)  ;  Allen  v.  Dundas,  3  T.  R.  125 


NOELL   V.    WELLS  573 

(1789)  ;  Jones  V.  Jones,  7  Price  663  (1819)  ;  Moore  v.  Tanner,  5  T.  B.  Mon. 
(Ky.)  42  (1827)  ;  Fry  v.  Taylor,  1  Head  (Tenn.)  594  (1858).  On  indictment 
for  forging  a  will,  compare  Rex  v.  Vincent,  i  Str.  481  (1722),  with  Rex  v. 
Buttery,  R.  &  R.  341  (1819).  It  is  generally  held  that  the  probate  of  a  will  can 
not  be  impeached  collaterally  for  fraud.  Archer  v.  Mosse,  2  Vem.  8  (1686)  ; 
Allen  V.  McPherson,  I  H.  L.  Ca.  191  (1845)  ;  Bozven  v.  Allen,  113  111.  53,  55 
Am.  Rep.  398  (1885);  McCambrldge  v.  Walraven,  88  Md.  379,  41  Atl.  928 
(1898)  ;  Vincent  v.  Vincent,  70  N.  J.  Eq.  272,  62  Atl.  700  (1905)  ;  Del  Canipo  v. 
Camarillo,  l=;4  Cal.  647,  98  Pac.  1049  (1908).  But  scmblc  contra:  Orphans' 
Court  V.  Groff  14  Serg.  &  R.  (PaJ  181  (1826)  ;  Tebhets  v.  Tilton,  24  N.  H. 
120  (.ii^5i)  ;  tyelTs^state,  7  Pa.  C.  C.  354  (1889)  ;  Covington  v.  Chamherlin, 
156  Mo.  574,  "S7  S.  \V.  'jz'S  (1900),  and  see  R helps  v.  Benson,  161  Pa.  St.  418. 
29  Atl.  86  (1894).  '  " 

The  judgment  or  decree  o£  a  court  of  probate,  acting  within  the  scope 
of  its  peculiar  and  limited  jurisdiction,  is  conclusive  upon  parties  and  privies, 
and,  in  so  far  as  it  is  in  rem  upon  all  persons,  until  reversed  or  set  aside. 
Blackham's  Case,  I  Salk.  290  (1708)  ;  Dublin  v.  Chadhonrn,  16  Mass.  433 
(1820);  MrPhrrMon  v  Cinjliff  tt  Serg.  &  R.  (Pa.)  422  (1824);  Roach  v. 
Martin,  1  Harr.  (Del.)  548  (1835)  ;  Cecil  v.  Cecil,  19  Md.  72,  81  Am.  Dec.  626 
(1862);  Caujolle  V.  Ferrie,  13  Wall.  _(U.  S.)  465,  20  L.  ed.  507  (1871); 
iVillet's  Appeal,  50  Conn.  330  (1882) ;  Liginger  v.  Field,  78  Wis.  369,  47  N.  W. 
613  (1890)  :  Commonwealth  v.  McDonald.  170  Pa.  St.  221,  32  Atl.  410  (i89.s)  : 
King  v.  Ross,  21  R.  I.  413,  45  Atl.  146  (1899)  ;  May  v.  Boyd,  97  Maine  39S. 
54  Atl.  938,  94  Am.  St.  509  (1903)  ;  Burgess  V.  Stribling,  134  Mich  2,2,,  95 
N.  W.  looi  (1903).  So,  a  decree  of  probate  is  conclusive  as  to  the  formal 
validity  of  a  will.  Potter  V.  Webb,  2  Maine  257  (1823)  ;  Poplin  v.  Hawke, 
8  N.  H.  124  (1835)  ;  Carpenter  V.  Cameron.  7  Watts  (Pa.)  51  (1838)  ;  Wood- 
ruff V.  Taylor,  20  Vt.  65  (1S47);  Vanderpoel  \.  Van  Valkenburg,  6  N.  Y.  190 
(1852)  ;  Greenwood  v.  Murray,  26  Alinn.  259,  2  N.  W.  945  (1879)  ;  Loring  v. 
Arnold,  15  R.  I.  428,  8  Atl.  335  (1887)  ;  Wohlgemuth' s  Will,  no  App.  Div. 
644,  97  N.  Y.  S.  367  (1906);  In  re  Hasselbrook,  128  App.  Div.  (N.  Y.) 
874  (1908). 

At  common  law,  the  probate  of  a  will  was  not  conclusive  as  to  real 
estate,  as  to  which  the  ecclesiastical  courts  had  no  jurisdiction.  Montgomery 
V.  Clark,  2  Atk.  378  (1745)  ;  Doe  v.  Cahert,  2  Campb.  387  (1810)  ;  Tompkins 
V.  Tompkins,  i  Story  C.  Ct.  547  (1841)  ;  Den  v.  Ayres,  13  N.  J.  L.  153  (1832)  ; 
Perry  v.  Szveeny,  li  App.  D.  C.  404  (1897).  But  in  many  jurisdictions,  by 
statute,  probate  is  conclusive  as  to  real  estate,  unless  contested  within  the 
time  allowed  by  law.  Judson  v.  Lake,  3  Day  (Conn.)  318  (1809)  ;  Parker  v. 
Parker,  65  Mass.  519  (1853);  Folmar's  Appeal,  68  Pa.  St.  482  (1871): 
Norvell  v.  Lesseur,  33  Grat.  (Va.)  222  (1880)  ;  Cochran  v.  Young,  tqi"  Pa.  St. 
22>2>  {"^^^Z^  ;  Wettnch  v.  Horn.  20T  Pa.  201  50  Att~iooi  (1902).  see  act  of  Tune 
2^.  i89.S,  P.  LTza^Nezi'by  v.  Blakely,  90  Atl.  (JNI.  J.)  318  (1913).  Or,  at  least, 
prima  j-acie  e-v-Tdence  of  title.  Allaire  v.  Allaire,  27  N.  J.  L.  312  (1875),  see 
Act  of  1898,  §  20,  N.  J.  Comp.  Stat.  (1910),  vol.  3,  p.  3819;  Thomas  v.  Wil- 
liamson, 51  Fla.  232,  40  So.  831  (1906);  New  York  Code  Civil  Procedure, 
§§  2625,  2653a;  Lewis  V.  Cook,  150  N.  Y.  163,  44  N.  E.  778  (1896)  ;  Henriques 
V.  Yale  University,  28  App.  Div.  354,  51  N.  Y.  S.  284  (1898)  ;  In  re  Clyne, 
72  Misc.  593,  131  N.  Y.  S.  1090  (1911)  ;  Beardsley  v.  Beardsley,  L.  R.  i  Q.  B. 
746  (1899).  As  to  foreign  wills,  see.Opp  v.  Chess.  204  Pa.  401,  ^d  Atl.  354 
(1903)  ;  Dibble  v.  Winter,  247  111.  243,  93  JM.  E.  145  (1910). 

The  question  whether  an  appointment  by  will  is  revoked  by  the  marriage 
of  the  donee  of  the  power,  does  not  involve  the  validity  of  the  will,  and  is 
not  affected  by  the  terms  of  the  decree  admitting  the  will  to  probate.  Paine 
V.  Price,  184  Mass.  350  (1903).  See  also  Washbon  v.  Cope,  144  N.  Y.  287, 
39N.  E.  388  (1895). 


5~4  JUDGMENT 

THOMAS  7'.  PEOrLE 

SiTRF.ME  Court  of  Illinois,  1883 

107  ///.  517 

An  action  was  brouc^ht  in  the  name  of  the  state  to  the  use  of  John 
Joiner  against  Charles  W.  Thomas  on  liis  official  bond  as  master  in 
chancery.  It  appeared  that  Joiner  had  left  his  home  and  not  having 
been  heard  from  for  more  than  seven  years,  his  brother  applied  to 
the  county  court  for  administration  on  his  estate,  Vv'hich  was  granted. 
Thomas  then  upon  the  demand  of  the  administrator  paid  over  the 
proceeds  of  a  sale  in  partition  of  real  estate  belonging  to  Joiner. 
Joiner  subsequently  turned  up  alive  and  sued  Thomas  to  recover 
this  fund  and  recovered  judgment,  from  which  Thomas  appealed. 
C^ne  of  the  contentions  of  Thomas  was,  that  the  decision  of  the  court 
granting  administration  could  not  be  collaterally  attacked.-" 

IMuLKEY,  J.:  It  must  be  conceded  that  if  the  probate  court  had 
autliority  to  act  at  all  in  the  particular  case  before  it,  then  its  adjudi- 
cation, like  that  of  any  other  court,  became  binding  and  conclusive 
upon  all  parties  to  tlie  proceeding,  until  reversed  or  otherwise  set 
aside.  The  real  question  therefore  is,  whether  the  court  had  any 
authority  to  act  at  all.  The  contention  of  appellant  is,  "that  the  juris- 
diction of  the  probate  court  did  not  depend  upon  the  death  of  Joiner, 
but  upon  the  fact  that  that  court  was  set  in  motion  by  the  application 
for  an  administrator,  and  having  been  so  set  in  motion,  its  jurisdic- 
tion to  investigate  and  decide  was  complete,  and  its  decision  can  not 
be  collaterally  attacked  as  to  anything  the  court  was  called  upon  to 
decide."  This  proposition,  in  the  light  of  the  facts  as  confessed  upon 
the  record  before  us,  we  regard  as  fundamentally  erroneous.  Juris- 
diction, in  the  general  and  most  appropriate  sense  of  that  term,  as 
applied  to  the  subject-matter  of  a  suit  at  law  or  in  equity,  is  always 
conferred  by  law,  and  it  is  a  fatal  error  to  suppose  tlie  power  to 
decide  in  any  case  rests  solely  upon  the  averments  in  a  pleading.  It 
is  true  that  a  court  is  not  permitted,  on  its  own  motion,  to  institute  a 
suit  between  the  parties  to  a  controversy.  As  claimed  by  appellant, 
there  must  be  a  properly  framed  complaint  or  other  pleading  show- 
ing a  cause  of  action  within  the  jurisdiction  of  the  court,  before  it 
can  lawfully  proceed  to  adjudicate.  But  behind  all  this  there  must 
be  power  in  the  court,  conferred  by  law,  to  act  in  a  real  case  of  the 
character  of  the  one  supposed  by  the  pleading  or  complaint,  and  if 
there  is  not,  the  whole  proceedings,  and  all  acts  done  under  it,  will  be 
inoperative  and  void. 

The  position  of  appellant  is  well  met  by  the  case  of  Griffith  v. 
Frcsier,  8  Cranch,  23,  where  the  question  in  hand  came  under  con- 
sideration. Chief  Justice  Marshall,  speaking  for  the  court,  said  in 
that  case:  "To  give  the  Ordinary  jurisdiction,  a  case  in  which,  by 
law,  letters  of  administration  may  issue,  must  be  brought  before 
him.    In  the  common  case  of  intestacy  it  is  clear  that  letters  of 

^'The  facts  are  abridged  and  the  arguments  and  part  of  the  opinion  of 
the  court  omitted. 


THOMAS   V.    PEOPLE  575 

administration  must  be  granted  to  some  person  by  the  Ordinary; 
and  though  they  should  be  granted  to  one  not  entitled  by  law,  still 
the  act  is  binding  until  annulled  by  the  competent  authority,  because 
he  had  power  to  grant  letters  of  administration  in  the  case.  But 
suppose  administration  to  be  granted  on  the  estate  of  a  person  not 
really  dead  ?  The  act,  all  will  admit,  is  totally  void.  Yet  the  Ordinary 
must  always  inquire  and  decide  whether  the  person  whose  estate 
is  to  be  committed  to  the  care  of  others  be  dead  or  in  life.  It  is  a 
branch  of  every  cause  in  which  letters  of  administration  issue.  Yet 
the  decision  of  the  Ordinary  that  the  person  on  whose  estate  he  acts 
is  dead,  if  the  fact  be  otherwise,  does  not  invest  the  person  he  may 
appoint  with  the  character  or  powers  of  an  administrator.  The 
case,  in  truth,  was  not  one  within  his  jurisdiction.  It  was  not  one  in 
which  he  had  a  right  to  deliberate, — it  was  not  one  committed  to 
him  by  the  law ;  and  although  one  of  the  points  occurs  in  all  cases 
proper  for  his  tribunal,  yet  that  point  can  not  bring  the  subject 
within  his  jurisdiction." 

The  general  proposition  that  under  our  system  of  government 
no  one  can  be  deprived  of  his  life,  liberty  or  property  without  due 
process  of  law,  is  not  denied  or  questioned,  and  as  John  Joiner 
was  in  no  sense  a  party  to  the  proceeding  before  the  probate  court 
when  letters  on  his  estate  were  granted,  on  what  principle  can  he  be 
said  to  be  bound  by  the  action  of  the  court  in  making  the  grant? 
The  general  rule  unquestionably  is,  that  no  one  is  bound  by  an 
adjudication  of  w^hich  he  had  no  notice  or  to  which  he  was  not  a 
party.  Testing  the  present  case  by  this  rule,  appellee  is  not  clearly 
bound.^^ 

Judgment  affirmed. 

''Accord:  Scott  v.  McNeal,  154  U.  S.  34,  38  L.  ed.  896  (1893)  ;  Cunnins  v. 
Reading  School  Dist.,  198  U.  S.  458,  49  L.  ed.  1125  (1904),  affirming  206  Pa, 
469  (1903)  and  Blinn  v.  Nelson,  222  U.  S.  I  (1911),  affirming  197  Mass.  279 
are  distinguishable  upon  the  terms  of  the  state  statutes.  Generally,  the  action 
of  a  court  of  probate  in  granting  administration  can  not  be  attacked  in  an- 
other court  in  a  collateral  proceeding.  Ornisbee  v.  Piper,  123  Mich.  265,  82 
N.  W.  36  (1900)  ;  McCooey  v.  A^  Y.,  &c.,  R.  Co.,  182  Mass.  205,  65  N.  E. 
62  (1902)  :  ZtVy/gr  y.  Storev.  220  Pa.  477,  69  Atl.  894  (1908);  Connors  v. 
Cunard  S.  Co.,  204  Mass.  310,  90  N.  E.  601  (f9io)  ;  J^accelli  v.  Del.  &  H.  Co., 
138  N.  Y.  App.  Div.  623,  122  N.  Y.  S.  849  (1910).  But  the  granting  of  let- 
ters of  administration  is,  at  the  best,  no  more  than  prima  facie  evidence  of 
the  death  of  the  intestate.  And,  if  he  is  not  in  fact  dead,  the  probate  court  is 
without  jurisdiction  and  the  letters  are  invalid.  Allen  v.  Dundas,  3  T.  R.  125 
(1789);  Thompson  v.  Donaldson,  3  Esp.  63  (1800)  ;  Clayton  v.  Gresham, 
10  Ves.  Jr.  287  (1804)  ;  Moons  v.  De  Bcrnales,  i  Russ.  301  (1S26)  ;  Newman 
V.  Jenkins,  27  Mass.  515  (1830);  French  v.  Frasier,  7  J.  J.  Mar.  (Ky.)  425 
(1832)  ;  Duncan  v.  Stewart,  25  Ala.  408,  60  Am.  Dec.  527  (1854)  ;  English  v. 
Murray,  13  Tex.  366  (1855)  ;  Morgan  v.  Dodge,  44  N.  H.  255,  82  Am.  Dec. 
213  (1862)  ;  Jochumsen  v.  Bank,  85  Mass.  87  (1861)  ;  Tisdale  v.  Connecticut 
M.  L.  Co.,  26  Iowa  170  (1868)  ;  Cunnincihani  w  Smith  70  Pa.  450  (1872)  ; 
Mutual  L.  Co.  v.  Tisdale,  91  U.  ^7238,  23  JL.  ed.  314  (1^7 S) ;  Lancaster  v. 
Washington  L.  Ins.  Co.,  62  Mo.  121  (1876)  ;  Epping  v.  Robinson,  21  Fla.  36 
(1884)  ;  Melia  v.  Simmons,  45  Wis.  334,  30  Am.  Rep.  746  (1878). 

Roderigas  v.  East  River  Savings  Inst.,  63  N.  Y.  460^  20  Am.  Rep.  555 
(1875),  contra,  approved  in  Plume  v.  Howard  Savings  Inst.,  46  N.  J.  L.  211 
(1884)  is  overruled.  Matter  of  Killan,  172  N.  Y.  547  (1902)  ;  Marks  v.  Emi- 
grant I.  S.  Bank,  122  App.  Div.  (N.  Y.)  661,  107  N.  Y.  S.  491  (1Q07)  :  Williams 
V.  Post,  158  App.  Div.  (N.  Y.)  818,  143  N.  Y.  S.  1027  (1913). 


570  JUOGMKN'T 


IIF.FXKR  z'.  ALP.RK^TIT 


Supreme  ^ourt  of  rr.NNSYLVANjA,  ipii 
231  Pa.  396. 

Srirr  facias  to  revive  lien  of  jiulf:^mcnt.  The  court  directed  a 
verdict  for  the  plaintiiT.    Defendant  ajtpealcd. 

Per  CuRiA^f :  This  was  a  scire  facias  to  revive  and  continue 
the  Hen  of  a  judj]^icnt  entered  in  the  common  pleas,  upon  the  fiHng 
of  a  certified  transcript  from  the  orphans'  court,  showing  a  balance 
due  by  executors  to  the  widow  of  the  decedent.  At  the  trial,  offers 
of  testimony  were  made,  to  show  that  before  the  adjudication  of  the 
orphans'  court  one  of  the  executors  had  sold  tlie  widow  six  houses 
under  a  verbal  agreement  with  her  that  he,  and  his  coexecutor 
"were  to  take  of  such  moneys  as  might  come  into  their  hands"  as 
executors,  the  amount  of  the  purchase  price  of  the  houses  that  was 
unpaid.  The  purpose  of  the  offer,  as  stated  by  counsel,  was  to  prove 
that  long  prior  to  the  adjudication,  the  amount  the  widow  was  found 
to  be  entitled  to,  had  by  the  agreement  mentioned,  been  paid  her, 
and  that  nothing  was  then  due  her  by  the  executors.  The  assign- 
ments of  error  relate  to  the  overruling  of  these  offers  and  the  direc- 
tion of  a  verdict  for  the  plaintiff. 

In  settling  the  accounts  of  executors,  administrators  and  guard- 
ians the  jurisdiction  of  the  orphans'  court  is  exclusive,  and  in  a 
proceeding  on  its  transcript  in  the  common  pleas,  no  defenses  but 
payment  after  the  adjudication  and  iiid  iiel  record  are  available. 
Bernhardt  v.  Taylor,  223  Pa.  307. 

If  the  agreement  attempted  to  be  set  up  could,  as  argued,  be 
considered  an  equitable  assignment  of  an  amount  sufficient  10  pay 
the  balance  of  the  purchase  money  of  the  houses,  it  was,  in  effect, 
a  payment  pro  tanto  by  the  executor  to  the  widow.  The  adjudica- 
tion was  conclusi\e  of  the  amount  due  by  the  former  to  the  latter, 
and  that  matter  could  not  be  inquired  into  by  the  common  pleas. 

The  judgment  is  affirmed.-^ 


"Tlie  final  settlement  of  the  account  of  an  executor  or  administrator, 
after  due  notice,  is  generally  conclusive  upon  all  matters  coming  directly 
before  the  court.  Sparhaiijk  v.  Bucll,  9  Vt.  41  (1837);  Sever  v.  Russell,  58 
Mass.  513,  50  Am.  Dec.  811  (1849)  ;  Parcher  v.  Busscll,  65  Mass.  107  (1853)  ; 
Shoemaker  v.  Brown,  10  Kans.  3?>3  (1872);  Biiltcley  v.  Andmvs,  39  Conn. 
523  (1873)  ;  Jones  V.  Chase,  55  N.  H.  234  (1873)  ;  Ilutton  v.  Williams,  60  Ala. 
107  (1877)  :  Simmons  V.  Goodell,  63  N.  H.  458,  2  Atl.  897  (1885)  ;  Holden  v. 
Lathrop,  65  ^lich.  652,  32  N.  W.  879  (18S7)  ;  Succession  of  Rabasse,  50  La. 
Ann.  746,  23  So.  910  (1898);  Mulcahey  V.  Dmv,  131  Cal.  Ji,  63  Pac.  158 
(1900)  ;  Bonner  v.  Gorman,  71  Ark.  480,  77  S.  W.  602  (1903)  ;  Piper's  Estate, 
208  Pa.  6^6.  >7  Atl  1 1 18  (1904);  ll'yckoff  V.  O'Xiel,  71  N.  jTTIq.  58l,  63 
Atl.  982  ( K)o6)  ;  Alexander's  Pslate,  214  Pa.  -<6q.  63  Ail  799  (1906)  ;  Sin- 
nickson  v.  Perkins,  231  III.  492,  83  I\.  E.  194  (1007)  ;  Webber  Hospital  Assn. 
V.  McKenaie,  104  Maine  320,  71  Atl.  1032  (irK>8);  Harris  v.  Harris,  82  Vt. 
199  (1909)  ;  Connor  v.  Gibbons.  228  Pa.  617.  77  Atl.  1009  (1910);  Goodman 
V.  Griffith,  155  Alo.  App.  574,  134  S.  W.  1051  (1910);  Doane's  Estate,  64 
Wash.  303  (191 1 ).    As  to  New  York  see  Code  of  Civil  Procedure,  §§  2742, 


WORK   Z:    PRALL  5~7 

SECTION  7.     RES  JUDICATA 

(a)  Merger 

WORK  f .  PR-\LL 

Superior  ("ot-rt  of  PFN-x.sYT.VAKTA,jrf)r>j 

26  Superior  Court  104. 

Appeal  by  defendant  from  an  order  of  tlie  court  of  common 
pleas  of  Washington  County  discharging  a  rule  to  open  judgment 
in  the  case  of  W.  x\.  Work  to  use  of  Crouch  Brotliers  against 
Lydia  M.  Prall  and  H.  L.  Prall.^^ 

Henderson,  J. :  The  defendants  gave  tlieir  judgment  promissory 
note  to  the  plaintiff  on  March  21,  1902.  A  judgment  was  entered 
thereon  by  virtue  of  the  warrant  of  attorney  which  tlie  note  con- 
tained, on  March  22,  1902,  and  on  the  24di  of  tlie  same  montli  the 
judgment  was  assigned  to  tlie  use  plaintiffs.  The  note  was  pavable 
in  three  montlis  from  date  and  no  notice  of  tlie  assignment  of  tlie 
judgment  was  given  to  the  defendants  until  about  five  months  after 
the  same  became  due.  The  defendants'  evidence,  taken  on  die  rule  to 
open  judgment,  was  uncontradicted  and  would  warrant  a  jurv  in 
finding  that  pa>Tnents  had  been  made  by  Lydia  M.  Prall  sufficient 
in  amount  to  discharge  tlie  debt  before  the  defendants  had  notice 
that  the  judgment  had  been  assigned.  These  pa>-nients  were  made 
to  one  Richardson,  a  partner  of  tlie  plaintiff"  to  whom  a  note  for  a 
similar  amount  had  been  given  by  tlie  defendants  for  a  like  consid- 
eration. 

As  between  the  plaintiff  and  the  defendants  the  latter  showed  a 
sufficient  cause  to  entitle  them  to  have  the  judgment  opened.  Unless 
therefore,  the  equitable  plaintiff's  have  a  better  position  than  tlie 
payee  of  tlie  note,  tlie  relief  asked  for  should  be  gi-anted. 


2743;  In  re  Randall.  152  N.  Y.  50S.  46  X.  E.  045  (iSq;V,  In  re  Hal- 
sted,  41  Misc.  606,  85  N.  Y.  S.  301  (ux)3)  ;  Chester  v.  Buffalo  Car  Mfa. 
Co.,  183  N.  Y.  425,  76  N.  E.  4S0  ( 1906)  ;  Bozcer's  Estate,  240  Fa.  388. 
87  Atl.  711  (1913).  The  allowance  or  rejection  ot  a~ctainr~by  the  pro5ate 
court  is  usually  held  to  have  the  force  of  a  judsmient  as  to  immediate  parties 
and  their  privies.  MeKinnev  v.  Davis,  6  Mo.  501  (1840)  ;  Doolev  v. 
U'atkins,  5  Ark.  705  (1843);  Stone  v.  Jl'ood.  16  III.  177  (l8'^4); 
Moerehen  v.  Stoll.  48  Wis.  307,  4  N.  W.  3:^2  (1870)  :  Snellinc;  v.  Kroger.  89 
Iowa  247,  56  N.  W.  446  (1803)  ;  Hioli's  Estate,  no  Pa.  St  j;^.  ?r,  Atl.  421, 
423  (1890);  Le-u-is  V.  IVeleh.  47  Minn.  103.  48  N.  W.  608,  40  N.  W.  665 
(1891);   IVileox  V.  Gilchrist,  85  Hun  i,  32  N.  Y.  S.  608  (189O  ;  Matter  of 

Clapp.   30    Misc.   395,   63    N.    Y.    S.    1006    (1900)  ;    Ynrum    V     Cmumrrruil    \nf 

Bank,  iq:;  Pa.  St^iK  a6  Atl.  94  (looo)  ;  Estate  of  Riehmond,  9  Cal.  App. 
413.  99  P'ic.  558  (190ST;  Matter  of  Guarantv  Trust  Co..  m  App.  Div.  O58, 
116  N.  Y.  S.  147  (1909)  ;  Wood  V.  Sharp.  150  Ky.  46,  166  S.  VV.  787  (1014). 
Contra:  State  v.  Bowen,  4s  Miss.  347  (1871")  ;  Lezering  v.  Levering,  64  Md. 
399.  20  Atl.  I  (1885)  ;  Haiermale  v.  Houck.  122  Md.  82  (1910). 

^The  arguments  of  counsel  and  part  of  the  opinion  of  the  court  are 
omitted. 

37 — Civ.  Proc. 


578  JL-DGMENT 

By  the  confession  of  judgment  tlie  plaintiffs'  cause  of  action 
became  merged  in  the  judgment.  The  original  claim  having  served 
its  purpose  as  evidence  upon  which  a  judgment  was  obtained, 
expended  its  force  and  the  warrant  of  attorney  authorizing  the 
judgment  was  exhausted.  Black  on  Judgments,  section  674;  Ries  v. 
Rozclaud,  II  Fed.  657;  Scliuler  v.  Israel,  27  Fed.  851.  The  note 
does  not  survive  as  a  cause  of  action.  In  the  very  nature  of  the 
case  tlie  inferior  obligation  evidenced  by  tlie  note  has  been  changed 
into  a  matter  of  record  and  the  remedy  of  the  payee  is  on  the 
judgment.  The  judgment  obtained  thereon  does  not  possess  the 
qualities  of  a  negotiable  note. 

The  assignee  of  a  judgment  takes  the  same  subject  to  existing 
equities  between  the  parties  thereto  and  has  no  better  position  than 
would  the  judgment  creditor  have  occupied  if  he  had  not  executed  an 
assignment.  Filbert  v.  Ha-.ck.  8  Watts,  443;  A'oble  v.  Thompson  Oil 
Co.,  79  Pa.  354 ;  Black  on  Judgments,  section  953.  In  order  to  avoid 
the  effect  of  the  payment  ly  the  defendant  to  the  plaintiff'  it  was  tlie 
dut>-  of  the  assignee  to  give  the  former  notice  of  the  assignment. 
"It  is  impossible  to  conceive  upon  what  principle  of  justice  a  debtor 
should  be  prejudiced  by  an  assignment  of  which  he  knows  notliing. 
If  the  part}-  whose  interest  and  dutv'  it  is  to  give  him  notice  so  that 
he  can  regulate  his  conduct  according  to  the  new  relation,  fails  to 
do  so  he  should  certainly  not  be  compelled  to  suffer."  Gaiillagher  v. 
Caldzcell,  22  Pa.  300;  Xohle  v.  Thompson  Oil  Co.,  79  Pa.  354;  Lee 
V.  Delehanty,  25  Hun  197;  May  v.  Nezcingham,  17  Pa.  Super.  Ct. 
469:  Black' on  Judgments,  section  950.  This  rule  applies  to  the 
assignment  of  a  mortgage.  Foster  v.  Carson,  159  Pa.  477.  The 
entr}-  of  the  assignment  on  the  records  in  the  court  of  common  pleas 
was  not  notice  to  the  defendants.  The  judgment  docket  was  not  for 
their  benefit  and  they  are  not  required  to  examine  it.  Henry  v.  Broth- 
ers, 48  Pa.  70;  Horstman  v.  Gerker,  49  Pa.  282. 

Order  reversed.^* 


-""The  general  rule  is,  that  by  a  judgment  at  law  or  a  decree  in  chancery, 
the  contract  or  instrument  upon  which  the  proceeding  is  based  becomes  en- 
tirely merged  in  the  judgment.  By  the  judgment  of  the  court,  it_  loses  all 
of  its  vitality-  and  ceases  to  bind  the  parties  to  its  execution.  Its  force  and 
effect  are  then  expended,  and  all  remaining  legal  liability  is  transferred  to 
the  judgment  or  decree.  Once  becoming  merged  in  the  judgment,  no  further 
action  at  law  or  suit  in  equity-  can  be  maintained  on  the  instrument."  IVayman 
V.  Cochrane,  35  111.  152  (1864).  "The  original  contract  is  drowned  in  the 
judgment."  Biddleson  v.  IVhitel,  i  W.  Bl.  506  (1764).  Accord:  Thatcher  v. 
Gammon.  12  Mass.  26S  (1815)  ;  O'.i'cns  v.  Bouie,  2  Md.  457  (1852)  ;  Peters 
V.  San  ford,  I  Den.  (X.  Y.)  224  (1845)  ;  Pike  v.  McDonald,  32  Maine  418.  ^4 
Am.  Dec.  597  (1851)  ;  Mitchell  v.  Mayo,  16  111.  83  (1854) ;  Temple  v.  Scott,  3 
Minn  419  (1859)  ;  North  v.  Mudge,  13  Iowa  496,  81  Am.  Dec.  441  (1862)  ; 
Barnes  v.  Gibbs,  31  X.  J.  L.  317.  86  Am.  Dec.  210  (1865)  ;  Blxstone  v.  Bl\stone, 
51  Pa.  373  (l86s)  ;  Ober  v.  Gallagher,  93  U.  S.  199,  23  L.  ed.  829  ( 1876)  ;  Con- 
necticut }l.  lTCo.  v.  Jones.  8  Fed.  303  (1880)  ;  Cooksev  v.  Kansas  City  R. 
Co.,  74  Mo.  477  (1881)  ;  Grant  v.  Burgwyn,  88  X.  Car.  95  (1883) ;  BroTtn  v. 
West,  73  Maine  23  (1881")  ;  Davies  v.  AVtt-  York  Maxor,  Aldermen  and  Com- 
monalty of  X.  Y.,  93  X.  Y.  250  (1883)  ;  Bro-an  v.  Darrah,  95  Ind.  86  (1883)  ; 
Price  V.  Bank,  62  Kans.  735,  64  Pac.  637  (1901)  ;  Rossitcr  v.  Mcrriman,  80 
Kans.  739,  104  Pac.  858  (1909);  Scherl  v.  Flamm,  133  App.  Div.  (X.  Y.) 
274  (1909);  Roh.rbacher  v.  Walsh,  170  Mich.  59,  135  N.  W.  907  (1912); 
Harper  v.  Daniels,  211  Fed.  57  (1914). 


MEMMER   V.    CAREY  670 

PETER  MEMMER  AND  ANOTHER  v.  WILLIAM  N.  CAREY 
Supreme  Court  of  Minnesota,  1883 

30  Minn.  458. 

Appeal  by  defendant  from  a  judgment  of  the  municipal  court  of 
St.  Paul. 

By  the  Court:  There  was  a  running  account  between  plaintiffs 
and  defendant,  for  butcher's  meat  sold  by  the  former  to  latter  from 
time  to  time,  between  January  i  and  October  6,  1882 ;  the  balance 
remaining  unpaid  at  the  latter  date  being  something  over  $160.  On 
October  19th,  plaintiffs  recovered  judgment  in  a  justice's  court  for 
$100  of  this  balance,  having  commenced  suit  therefor  on  October 
nth.  There  being  no  evidence  in  the  case  at  bar  having  any  reason- 
able tendency  to  show  that  the  meat  was  furnished  upon  any  agree- 
ment for  credit,  the  price  of  it  was  due  upon  delivery,  and  hence 
plaintiffs  might  have  brought  suit  for  the  whole  balance  at  the  time 
when  they  sued  for  the  $100.  In  the  present  action  plaintiffs  seek 
to  recover  the  remainder  of  the  balance  mentioned.  But  the  judg- 
ment of  the  justice  is  well  pleaded  in  bar  as  a  former  recovery 
upon  the  same  cause  of  action ;  for  it  is  a  general  rule  (in  the  absence 
of  special  facts  to  create  an  exception)  that  an  indebtedness  of  his 
customer  to  a  retail  dealer,  upon  a  running  account,  furnishes  one 
entire  cause  of  action,  and  if  such  cause  of  action  is  split,  and  a 
recovery  had  upon  a  part  of  it,  the  judgment  is  a  bar  to  any  further 
recovery  thereupon.  Am.  Button  Hole,  etc.  Co.  v.  Thornton,  28 
Minn.  418;  Guernsey  v.  Carver,  8  Wend.  492:  Secor  v.  Sturqis,  16 
N.  Y.  548. 

Judgment  is  reversed.^^ 

^^"An  entire  claim,  arising  either  upon  a  contract  or  from  a  wrong,  can 
not  be  divided  and  made  the  subject  of  several  suits;  and  if  several  suits  be 
brought  for  different  parts  of  such  claim  the  pendency  of  the  first  mav  be 
pleaded  in  abatement  of  the  others  and  a  judgment  upon  the  merits  in  either 
will  be  available  as  a  bar  in  the  other  suits.  But  it  is  entire  claims  only 
which  can  not  be  divided  within  this  rule,  those  which  are  single  and  indi- 
visible in  their  nature.  The  rule  does  not  prevent,  nor  is  their  any  principle 
which  precludes  the  prosecution  of  several  actions  upon  several  causes  of 
action."  Per  Strong,  J.,  in  Secor  v.  Sturgis,  16  N.  Y.  548  (1858).  Accord: 
Girling  v.  Aldas,  2  Keb.  617,  I  Vent.  73  (1670);  Johnson  v.  Long,  i  Ld. 
Raym.  370  (1697)  ;  S^nifh  v.  Jones,  15  Johns.  (N.  Y.)  229  (1818)  ;  Bates  v. 
Quattlebom,  2  N.  &  McC.  (La.)  205  (1819)  ;  IVillard  v.  Spcrrv,  16  Johns. 
(N  Y.)  121  (1819)  ;  fnqrahmn  v  ^(7//,  tt  ^Prcr.  ^^  R .  rPn  ^  yR  (1824)  ;  Hite 
V.  Long,  6  Rand.  (Va.)  457,  18  Am.  Dec.  719  (1828)  ;  Bac/ot  v.  Williams,  3  B  & 
C.235  (1824)  ;  Miller  V.  Covert,  i  Wend.  (N.  Y.)  487  (1828)  ;  Goodrich  w.  Yale, 
97  Mass.  15  (1867)  ;  Mcintosh  v.  Lown,  49  Barb.  (N.  Y.)  550  (1867)  ;  Gihbs  v. 
Criiikshank,  L.  R.  8  C.  P.  454  (1873)  ;  Burritt  v.  Belfrcy,  47  Conn.  323,  36  Am. 
Rep.  79  (1879)  ;  Sykes  v.  Gcrher,  98  Pa.  St.  179  (18S1)  ;  Lazv  v.  McDonald,  62 
How.  Pr.  (N.  Y.)  340  (1881)  -.Buck  v.  Wilson,  tt^  Pa.  423.  6  Atl.  07  (1886)  ; 
Vanuxem  v.  Burr,  151  Mass.  386,  24  N.  E.  773,  32  Am.  St.  4^8  (1890)  ;  Hill 
V,  /or,  149  Pa.  24.^  24  Atl.  29^  ( iRnpA  •  WUlnunhhy  V.  Atkinson,  96  Maine  372752" 
Atl.  756  (1902)  ;  Welch  v.  Buchans  Soap  Corp.,  56  Misc.  689,  107  N.  Y.  S. 
616  (1907);  Johnson  v.  Herold,  i6i  Fed.  593  (1908);  Warren  v.  Shechan, 
156  Mich.  432,  120  N.  W.  810  (1909)  ;  Kennedy  v.  Neva  York  City,  196  N.  Y. 


580  JUDCMF.NT 

ERANNENBURG  r.  INDIANArOLIS,  PITTSBURGH  & 
CLEVELAND  RAILROAD  CO. 

Supreme  Court  of  Indiana,  1859 

13  I)td.  103°* 

Hanna,  J.:  This  was  an  action,  commenced  before  a  justice  of 
the  peace,  for  the  value  of  a  mare  killed  by  the  cars  of  the  company, 
at  a  place  where  the  road  was  not  fenced.  Answer  tiled.  Trial ; 
and  judgment  for  the  plaintiff  for  one  hundred  dollars.  Defendants 
appealed  to  the  circuit  court,  where  the  plaintiff  filed  a  demurrer  to 
the  first  paragraph  of  the  answer,  which  was  overruled,  and  judg- 
ment for  defendants. 


IQ,  89  N.  E.  360  (1909)  ;  Pomeroy  v.  Prescott,  156  Maine  401  (1910)  ;  Burt  v. 
Trust  Co.,  d'^  Pa.  Super.  Ct.  .■^20  ( 191 1 ) ;  Sl^icr  v.  Locust  Laundry.  s6  V:i. 
Super.  Ct.^323-Ci9M)  ;  Sharp  v.  McBridc,  134  La.  250  (1914);  J^^^  principle 

15  generally  applicable  to  actions  on   running  accounts.    Phillips  V.   Berick, 

16  Johns.  (N.  Y.)  136,  8  Am.  Dec.  299  (1819)  ;  Avery  v.  Fitch,  4  Conn.  362 
(1822)  ;  Guernsey  v.  Carver,  8  Wend.  (N.  Y.)  492,  24  Am.  Dec.  60  (1832)  ; 
Stevens  v.  Lockwood,  13  Wend.  644,  28  Am.  Dec.  492  (1835)  ;  Bendernagle 
V.  Cocks,  19  Wend.  (N.  Y.)  207  (1838)  ;  Oliver  v.  Holt,  11  Ala.  574,  46  Am. 
Dec.  228  (1847)  ;  Lpcjan  v.  Cgff rgy^^O-Pa., lod  XJ-8a81;  Lucas  v.  LeCompfe,  42 
111.  303  (1866)  ;  TIayward  v.  Clark,  50  Vt.  612  (1878)  ;  Corey  v.  Miller,  12  R.  I. 
237  (1879)  ;  Manle'y  v.  Tufts,  59  Kans.  660,  54  Tac.  683  (1898)  ;  De  Graff  v. 
Mayper,  63  Misc.  568,  118  N.  Y.  S.  571  (1909)-  Contra:  Badger  v.  Titcomb, 
32  Alass.  409,  26  Am.  Dec.  611  (1834)  ;  King  v.  Sheriff,  I  B.  &  Ad.  672 
(1831),  and  see  Pennebaker  v.  Parker,  ?,?,  Pa.  Super.  Ct.  4.S8  (1907)-  The  rule 
does  not  apply  to  items  accruing  or  becoming  due  after  suit  brought.  Mc- 
Laughlin V.  hi  ill,  6  Vt.  20  (1834)  ;  Sterner  v.  Grover,  3  W.  &  S.  136  (^1842)  ; 
Beck  V.  Devereaux,  9  Nebr.  109,  ~2^.  W.  365  (1879)  ;  Jacohy  v.  Peck, 
23  Cal.  App.  363  (1913).  On  breach  of  contract  of  employment  by  wrong- 
ful discharge  it  is  generally  held  that  but  a  single  cause  of  action  arises, 
a  recovery  in  which  is  a  bar  to  a  subsequent  suit  on  the  same  contract. 
Booge  v.  Pacific  Railroad,  22>  Mo.  212,  82  Am.  Dec.  160  (1862);  Col- 
burn  V.  IVoodzvorth,  31  Barb.  (N.  Y.)  381  (i860)  ;  Roscnmueller  v.  Lampc, 
89  111.  212  (1878)  ;  Richardson  v.  Eagle  M.  IV.,  78  Ind.  422,  41  Am.  Rep. 
584  (l88i);  Smith  v.  Gilbert  Lock  Co.,  4  N.  J.  L.  312  (1881)  ;  Kccdy  v. 
Long,  71  Md.  385,  395,  18  Atl.  704,  5  L.  R.  A.  759  (1889)  ;  Lichtenstein  v. 
Brooks,  73  Tex.  196,  12  S.  W.  975  (1889)  ;  Kalin  v.  Kahn,  24  Nebr.  709,  40 
N.  \\^  135  (1888)  ;  Omstead  v.  Bach,  78  Md.  132  (1893)  ;  Jaynes  v.  Allen  Co., 
44  Ohio  St.  226,  6  N.  E.  246,  58  Am.  Rep.  821  (1886)  ;  Monarch  Cycle  Mfg. 
Co.  V.  Mueller,  83  III.  App.  359  (1898);  Aiie  v.  Nadeau,  93  Maine  282,  44 
Atl.  891,  74  Am.  St.  346  (1S99)  ;  U'aldron  v.  Ilendrickson,  40  App.  Div.  7, 
57  N.  Y.  S.  561  (1899)  ;  Ilo-ii'ay  v.  Going-Northrup  Co.,  24  Wash.  88,  64  Pac. 
135,  6  L.  R.  A.  (N.  S.)  48,  49  (1901)  ;  Ornstcin  v.  Yahr,  &c..  Drug  Co.,  119 
Wis.  429,  96  N.  W.  826  (1903);  James  v.  Parsons,  70  Kans.  156,  78  Pac. 
438  (1904)  ;  Livingston  v.  Klaw,  137  App.  Div.  639,  122  N.  Y.  S.  264  (1900)  ; 
IVillingham  V.  Buckeye  C.  O.  Co.,  13  Ga.  App.  253,  79  S.  E.  496  (1913)  ; 
Menihan  v.  Hopkins,  129  Tenn.  24,  164  S.  W.  775  (1914).  Elsewhere,  where 
wages  are  payable  in  installments,  separate  suits  may  be  maintained  upon  each 
installment  as  it  falls  due,  but  all  installments  actually  due  must  be  included 
in  one  action.  Jenkins  v.  Scranton,  20^  Pa.  .sq8.  St  Atl.  788  (1903)  ;  Strauss 
V.  Mcertief,  64  Ala.  299,  3»  Am.  Kep.  8  (1^79)  \  Isaacs  v.  Davies,  68  Ga.  169 
(1881)  ;  McEvoy  v.  Buck,  27  Minn.  402  (1887)  ;  IVilliams  v.  Luckctt,  77  Miss. 
394,  26  So.  967  (1899);  Stradley  v.  Bath  P.^_Ql^  228^  Pa.  108,^7  Atl.  242 
(1903).  See  also  Bernard  v.  Hoboken,  27  N.  J.  L.  412  (1859);  Planders  v. 
Canada  A.  P.  S.  S.  Co.,  161  Fed.  378  (1908)  ;  Webb  v.  Depew.  152  Mich.  698, 
116  N.  W.  560  (1908). 

•'Part  of  the  opinion  is  omitted. 


BRANNENBURG  V.    INDIANAPOLIS,   P.    &    C.    R.    CO.  581 

The  said  paragraph  is,  in  substance,  that  if  the  animal,  etc.,  was 
injured,  etc.,  it  was  at  the  same  time  and  place  at  which  another 
horse  was  injured,  for  which  said  plaintiff  brought  suit  before  said 
justice  for  one  hundred  dollars,  upon  which  issue  was  joined,  and 
upon  the  trial  judgment  was  recovered  by  said  plaintiff  against  said 
defendants  for  one  hundred  dollars,  etc. 

The  question  argued  by  counsel,  is,  whether  the  pleadings  show 
but  one  trespass,  and  if  so,  whether  a  separate  suit  can  be  main- 
tained for  each  animal  killed. 

We  think  the  paragraph  of  the  answer  sufficiently  avers,  that 
at  the  same  time  and  place,  and  by  the  same  act,  two  horses  of  the 
plaintiff  were  killed  by  the  cars  of  the  defendants,  and  that  the 
plaintiff  had  sued  and  recovered  a  judgment  for  the  value  of  one  of 
said  animals. 

We  are  of  opinion  that,  under  the  circumstances  disclosed  in  this 
case,  the  plaintiff  could  not  bring  a  separate  suit  for  each  animal 
killed. 

It  is  not  necessary  for  us  to  decide  whether,  in  a  case  where 
animals  by  one  act  destroyed  are  of  a  greater  value  than  one  hundred 
dollars,  the  owner  can  abandon  any  attempt  to  recover  except  for  a 
part,  within  the  jurisdiction  of  a  justice,  or  not.  What  we  do 
decide,  is,  that  one  substantive  and  complete  cause  of  action,  arising 
out  of  the  same  tort,  can  not  be  divided  into  several  suits.  If  A 
should  shoot  into  a  flock  of  sheep  of  B,  and  kill  half  a  dozen,  we 
can  not  think  that  half  a  dozen  rights  of  action  would  thereby 
accrue  to  B ;  he  would  be  entitled  to  recovery  in  one  suit  for  the 
whole  damage  done,  and  if  he  failed  to  bring  his  action  for  the 
whole  injury  sustained,  it  would  be  his  own  fault. 

Judgment  affirmed.^^ 

"Accord:  Fetter  v.  Beale,  1  Salk.  11  (1700);  Farrington  v.  Payne,  15 
Johns.  432  (1818),  where  it  is  said  by  the  court:  "Suppose  a  trespass  or  a 
conversion  of  a  thousand  barrels  of  flour,  would  it  not  be  outrageous  to  allow 
a  separate  action  for  each  barrel?"  Cook  v.  Cook,  2  Brev.  (S.  C.)  349  (1810)  ; 
Thompson  v.  Rogers,  2  Brev.  (S.  C.)  410  (1810)  ;  Hodsoll  v.  Stallebrass,  11 
Ad.  &  El.  301  ( 1840)  ;  Whitney  v.  Clarendon,  18  Vt.  252  ( 1846)  ;  The  Kalamazoo, 
g  Eng.  L.  &  Eq.  557  (1851)  ;  Cunningham  v.  Morris,  19  Ga.  583,  65  Am. 
Dec.  6ll  (1856)  ;  Marble  v.  Keyes,  75  Mass.  221  (1857)  ;  Herriter  v.  Porter, 
23  Cal.  385  (1863);  McCaffrey  v.  Carter,  125  Mass.  330  (1878);  Foster  v. 
Napier,  73  Ala.  595  (1883)  ;  Tidwcll  v.  Witherspoon,  21  Fla.  359,  58  Am.  Rep. 
665  (1885);  Bethlehem  G.  Co.  v.  Yndcr.  112  Pa.  1^6,  4  Ail.  42  (1886); 
Knozvlton  v.  A'.  Y.  &  N.  E.  R.  Co.,  147  Mass.  606,  18  N.  E.  580,  i  L.  R.  A. 
625  (1888);  Beronio  v.  Southern  Pacific  R.  Co.,  86  Cal.  415,  24  Pac.  1093, 
21  Am.  St.  57  (1890)  ;  Skeen  v.  Springfield  E.  Co.,  42  Mo.  App.  158  (1890)  ; 
Thisler  v.  Miller,  53  Kans.  515,  36  Pac.  1060,  42  Am.  St.  302  (1894)  '•_gn^;»rn» 
V.  Penna  R.  Co..  6  Pa.  Suner.  Ct  383  (1808)  ;  Packham  v.  Fire  Ins.  Co.,  91  Md. 
515,  40  Atl.  1066,  50  L.  K.  A.  «28,  «o  Am.  St.  461  (1900)  ;  Stern  v.  Riches,  in 
Wis.  591,  87  N.  W.  555,  87  Am.  St.  892  (1901)  ;  Barnard  v.  Devine,  34  Misc. 
182,  68  N.  Y.  S.  859  (1901)  ;  Burage  v.  Kelchner,  66  Kans.  642,  72  Pac. 
232  (1903)  ;  Dills  V.  Justice,  137  Ky.  822,  127  S.  W.  472  (1910)  ;  Cordner  v. 
Hall,  84  Conn.  117,  79  Atl.  55  (1911).  Otherwise  where  the  claim  arises  from 
several  torts,  White  v.  Moseley,  25  Mass.  356  (1829);  Friend  v.  Dunks,  37 
Mich.  25  (1877)  ;  Rockwell  v.  Brown,  36  N.  Y.  207  (1867)  ;  4j]jj±£hi  v.  Dye 
Works  107  Pa.  2^3  ( 1800)  :  Pantell  v.  Coal  Co.,  204  Pa.  1^8.  .S3  Atl.  7.sr" 
(1902)  ;  Harp  v.  Southern  R.  Co.,  150  Ky.  564,  150  S.  W.  663  (1912)  ;  Mc- 
Knight  v.  Minneapolis  S.   R.   Co.,   149  N.   W.   131,   127   Minn.   207    (1914). 


5S2  JUDGMENT 

REILLY  V.  SICILIAN  ASPHALT  PAVING  CO. 

Court  or  Appeals  of  New  York,  1902 

170  A'.  Y.  40. 

CuLLEN,  J. :  The  appellant  claimed  tliat  while  driving  in  Central 
Park  in  the  city  of  New  York  both  his  person  and  his  vehicle  were 
injured  in  conse([uence  of  collision  with  a  gravel  heap  placed  on 
tlie  road  through  tlie  negligence  of  the  defendant.  Thereupon  he 
brought  an  action  against  the  defendant  in  the  court  of  common 
pleas  to  recover  damages  for  tlie  injury  to  his  person.  Subse- 
quently he  brought  another  actloti  in  one  of  the  district  courts  in 
the  city  of  New  York  to  recover  for  the  injury  to  his  vehicle.  In 
this  last  action  he  obtained  judgment,  which  was  paid  by  tlie 
defendant.  Thereafter  the  defendant  set  up  by  supplemental  answer 
the  judgment  in  the  district  court  suit  and  its  satisfaction  as  a  bar 
to  tlie  further  maintenance  of  the  action  in  the  common  pleas.  On 
the  trial  of  the  case  in  the  Supreme  Court  (to  which  under  the 
Constitution  the  action  was  transferred),  it  was  held  that  the  plain- 
tiff's right  of  action  was  merged  in  the  judgment  recovered  in  the 
district  court  and  his  complaint  was  dismissed.  The  judgment 
entered  upon  this  direction  was  affirmed  by  the  appellate  division 
and  an  appeal  has  been  taken  to  tliis  court  by  allowance. 

The  rule  is  that  a  single  or  entire  cause  of  action  can  not  be 
subdivided  into  several  claims  and  separate  actions  maintained 
thereon.  Secor  v.  Stiirgis,  16  N.  Y.  548;  Nathans  v.  Hope,  yy 
N.  Y.  420.  As  to  this  principle  there  is  no  dispute.  Therefore, 
the  question  presented  by  this  appeal  is  whether  from  the  defend- 
ant's negligence  and  the  injury  occasioned  thereby  to  the  plaintiflF 
in  his  person  and  his  property  there  arose  a  single  cause  of  action 
or  two  causes  of  action,  one  for  the  injury  to  his  person  and  the 
other  for  injury  to  his  property.-^    *    *    * 

The  question  now  before  us  has  been  the  subject  of  conflicting 
decisions  in  different  jurisdictions.  In  England  it  has  been  held  by 
the  Court  of  Appeals,  Lord  Coleridge,  Chief  Justice,  dissenting,^^  that 

Where  an  injury  is  of  such  a  nature  as  to  be  abatable,  the  law  will  not  pre- 
sume the  continuance  of  the  wronp.  Hence  a  recovery  is  for  damages  accru- 
ing before  action  brought,  and  successive  actions  may  be  brought  for  the 
continuance  of  the  wrong.  Ballantine  v.  Public  Service  Corp.,  86  N.  J.  L. 
331,  9  Atl.  95  (1914)  ;  Staple  v.  Spring,  10  Mass.  72  (1813)  ;  Chattanooga 
V.  Bowling,  loi  Tenn.  342,  47  S.  W.  700  (1898)  ;  Sanitary  District  v.  Ray, 
199  111.  63,  64  N.  E.  1048,  93  Am.  St.  102  (1902)  ;  Ganstcr  V.  Metro t>olitan 
E.  Cn..  2T4  Pa.  628,  64  Atl.  91  (1906)  ;  Knhn  v.  ///.  C.  R.  Co.,  in  Til.  App. 
323  (1903).  Otherwise  where  the  injury  is  permanent,  Mansfield  v.  Tcnny, 
202  Mass.  312,  88  N.  E.  892  (1909)  ;  Risher  v.  Ackcn  C.  Co.,  147  Iowa  459,  124 
N.  W.  764  C1910)  ;  Vandcrslice  v.  Irondale  E.  Co.,  232  Pa.  435^81  Atl.  445 
(1911)  ;  Phila.  B.  &  W.  R.  Co.  v.  Karr,  3»  App.  L).  C.  (1912)  ;  Chesapeake 
&  O.  R.  Co.  V.  Blankenship,  158  Ky.  270,  164  S.  W.  943  (1914). 

''Part  of  the  opinion  is  omitted. 

**Lord  Coleridge,  C.  J.,  dissenting:  "It  seems  to  me  a  subtlety  not  war- 
ranted by  law  to  hold  that  a  man  can  not  bring  two  actions,  if  he  is  injured 


REILLY  V.   SICILIAN  ASPHALT  PAV.    CO.  583 

damages  to  the  person  and  to  property  though  occasioned  by  the 
same  wrongful  act  give  rise  to  different  causes  of  action,  Brunsden 
V.  Humphrey,  L.  R.  14  Q,  B.  Div.  141 ;  while  in  Massachusetts, 
Minnesota  and  Missouri  the  contrary  doctrine  has  been  declared. 
Doran  v.  Cohen,  147  Mass.  342 ;  King  v.  Chicago,  M.  &  St.  P.  Ry. 
Co.,  82  N.  W.  Rep.  1113;  Von  Fragstein  v.  Windier,  2  Mo.  App. 
598.  The  argument  of  those  courts  which  maintain  that  an  injury 
to  person  and  property  creates  but  a  single  cause  of  action  is  that,  as 
the  defendant's  wrongful  act  was  single,  the  cause  of  action  must  be 
single  and  that  the  different  injuries  occasioned  by  it  are  merely 
items  of  damage  proceeding  from  the  same  wrong,  while  that  of  the 
English  court  is  that  the  negligent  act  of  the  defendant  in  itself 
constitutes  no  cause  of  action  and  becomes  an  actionable  wrong 
only  out  of  the  damage  which  it  causes.  "One  wrong  was  done 
as  soon  as  the  plaintiff's  enjoyment  of  his  property  was  substantially 
interfered  with.  A  further  wrong  arose  as  soon  as  the  driving  also 
caused  injury  to  the  plaintiff's  person."  Brunsden  v.  Humphrey, 
supra.  I  doubt  whether  either  argument  is  conclusive.  If,  where 
one  person  was  driving  the  vehicle  of  another,  both  the  driver  and 
the  vehicle  were  injured,  there  can  be  no  doubt  tliat  two  causes  of 
action  would  arise,  one  in  favor  of  the  person  injured  and  the 
other  in  favor  of  the  owner  of  the  injured  property.  On  the  other 
hand,  if  both  the  horse  and  the  vehicle,  being  the  property  of  the 
same  person,  were  injured,  there  would  be  but  a  single  cause  of 
action  for  the  damage  to  both.  If,  while  injury  to  the  horse  and 
vehicle  of  a  person  gives  rise  to  but  a  single  cause  of  action,  injury 
to  the  vehicle  and  its  owner  gives  rise  to  two  causes  of  action,  it 
must  be  because  there  is  an  essential  difference  between  an  injury 
to  the  person  and  an  injury  to  property  that  makes  it  impracticable, 
or,  at  least,  very  inconvenient  in  the  administration  of  justice  to 
blend  the  two.  We  think  there  is  such  a  distinction.  Different 
periods  of  limitation  apply.  The  plaintiff's  action  for  personal  in- 
juries is  barred  by  the  lapse  of  three  years;  that  for  injury  to  the 
property  not  till  the  lapse  of  six  years.  The  plaintiff  can  not  assign 
his  right  of  action  for  the  injury  to  his  person,  and  it  would  abate 
and  be  lost  by  his  death  before  a  recovery  of  a  verdict,  and  if  the 
defendant  were  a  natural  person,  also  by  his  death  before  that  time. 
On  the  other  hand,  the  right  of  action  for  injury  to  property  is 
assignable  and  would  survive  the  death  of  either  party.    *    *    * 

While  some  of  the  difficulties  in  the  joinder  of  a  claim  for 
injury  to  the  person  and  one  for  injury  to  the  property  in  one  cause 
of  action  are  created  by  our  statutory  enactments,  the  history  of 
the  common  law  shows  that  the  distinction  between  torts  to  the 
person  and  torts  to  property  has  always  obtained.  Lord  Justice 
Bowen  in  the  Brunsden  case  has  pointed  out  that  there  is  no  author- 
ity in  the  books  for  the  proposition  that  a  recovery  for  trespass 
to  the  person  is  a  bar  to  an  action  for  trespass  to  goods  or  vice  versa. 

in  his  arm  and  in  his  leg,  but  can  bring  two,  if  besides  his  arm  and  leg 
being  injured  his  trousers  which  contain  his  leg,  and  his  coat-sleeve  which 
contains  his  arm,  have  been  torn."  See  further,  MacDoiigall  v.  Knight,  L.  R. 
25  Q.  B.  Div.  I  (1890),  at  p.  8. 


5S.|  JUDGMENT 

It  is  true  that  at  ccmitiion  law  the  necessity  of  bringing  two  suits 
could  at  the  election  of  the  plaintiff  be  obviated  in  some  cases, 
as.  for  instance,  by  declaring  for  trespass  on  the  plaintiff's  close 
and  alleging  in  aggravation  thereof  an  assault  upon  his  person.'*" 
(See  Waterman  on  Trespass,  205,  406.)  Still,  in  such  a  case  there 
would  be  but  a  single  cause  of  action,  to  wit,  the  trespass  upon 
the  close,  and  if  the  defendant  justified  this  trespass  it  would  be 
a  complete  defense  to  the  action,  the  personal  assault  being  merely 
a  matter  of  aggravation.   Carpenter  v.  Barber,  44  Vt.  441. 

Therefore,  for  reason  of  the  great  difference  between  the  rules 
of  law  applicable  to  injuries  of  the  person  and  those  relating  to  in- 
juries to  property  we  conclude  that  an  injury  to  person  and  one  to 
property,  though  resulting  from  the  same  tortious  act,  constitute 
different  causes  of  action.^^ 

Judgment  reversed  and  new  trial  granted. 


BROWN  V.  FIRST  NATIONAL  BANK  OF  NEWTON,  KANS. 

United  States  Circuit  Court  of  Appeals,  Eighth  Circuit,  1904 

132  Fed.  450.'=' 

Saneorn,  J. :  This  is  an  action  brought  by  William  E.  Brown, 
the  plaintiff  in  error,  against  the  First  National  Bank  of  Newton, 
Kans.,  to  recover  $7,500  alleged  damages  for  the  wrongful 
release  of  a  judgment  which  Brown  had  pledged  to  the  bank 
as  collateral  security  for  the  payment  to  it  of  a  note  for  $3,366.75, 

*''Doyle  V.  American  W.  Co.,  60  App.  Div.  (N.  Y.)  525,  69  N.  Y.  S.  952 
(1901)  ;  Vock  V.  Antcrbourn,  67  N.  Y.  Misc.  168,  122  N.  Y.  S.  233  (1910). 

"A  cause  of  action  may  be  regarded  as  resulting  from  the  injury  inflicted 
rather  than  the  act  causing  the  injury.  Brnnsdcn  v.  Humphrey,  L.  R.  14  Q.  B. 
Div.  141  (1884)  (rev.  11  Q.  B.  Div.  7'^^,  51  L.  T.  (N.  S.)  529,  Z3  Am. 
L.  Reg.  369  and  note)  ;  Boerxnn  v.  Taylor,  19  Conn.  122  (1848)  ;  Peake  v. 
B.  &  O.  R.  Co.,  26  Fed.  495  ( 1886)  ;  Watson  v.  Texas  &  P.  R.  Co.,  8  Tex. 
Civ.  App.  144,  27  S.  W.  924  (1894)  ;  Lamb  v.  Harhaugh,  105  Cal.  680,  39  Pac. 
56  (1895)  ;  Ochs  V.  Public  Service  R.  Co.,  81  N.  J.  L.  661,  80  Atl.  495  (1911) 
(rev.  80  N.  J.  L.  148).  On  tlie  other  hand  the  majority  of  American  decisions 
regard  a  single  act  causing  injury  as  giving  rise  to  a  single  cause  of  action, 
although  the  result  is  injury  to  the  person  and  to  property.  Hoive  v.  Peckham, 
10  Barb.  (N.  Y.)  656  (1851);  Seger  v.  Barkhamstad,  22  Conn.  290  (1853); 
Baltimore  &  O.  R.  Co.  v.  Ritchie,  31  Md.  191  (1869)  ;  Hodge  v.  Bennington, 
43  Vt.  450  (1871);  Lamb  v.  St.  Louis,  C.  &  IV.  R.  Co.,  33  Mo.  App.  489 
C1888)  ;  Doran  v.  Cohen,  147  Mass.  342,  17  N.  E.  647  (1888)  ;  Bliss  v.  New 
York  C  &  H.  R.  Co.,  160  Mass.  447,  36  N.  E.  65,  39  Am.  St.  504  (1894)  ; 
Braithwaite  v.  Hall,  168  Mass.  38,  46  N.  E,  398  (1897)  ;  Oivensborough  & 
H.  G.  Co.  V.  Coons,  20  Ky.  L.  Rep.  1678,  49  S.  W.  966  (1899);  King  v. 
Chicago,  M.  &  S.  R.  Co.,  80  Minn.  83,  82  N.  W.  1113,  81  Am.  St.  238, 
50  L.  R.  A.  161  and  note  (1900)  ;  Birmingham  S.  R.  Co.  v.  Lintner,  141  Ala. 
420.  38  So.  363,  109  Am.  St.  40  C1904);  Kimball  v.  Louisville  &  N.  R.  Co., 
94  Miss.  396,  48  So.  230  (1908)  ;  Howell  v.  Fuller,  151  N.  Car.  315,  66  S.  E.  131 
(1909).  Compare  Underwriter's  A.  L.  /.  Co.  V.  Vicksburg  T.  Co.,  63  So.  453, 
106  Miss.  244  (1913).    See  also  Henry  v.  Lilley,  42  Pa.  Super.  Ct.  565  (1909)- 

'"Part  of  the  opinion  is  omitted. 


BROWN    V.    FIRST    NAT.    BANK   OF    NEWTON  585 

made  by  Brown  as  principal  and  Cora  E,  Brown  and  T.  J.  Norton  as 
sureties.  The  court  below  instructed  the  jury  to  return  a  verdict  for 
the  defendant  because  in  an  action,  on  the  note,  which  had  been 
brought  by  the  bank,  Brown  had  recouped  or  set  off  so  much  of  the 
damages  which  were  caused  by  the  release  as  were  necessary  to  pay 
and  defeat  the  claim  upon  the  note.  The  writ  of  error  challenges 
the  judgment  upon  the  verdict  rendered  pursuant  to  this  instruction. 

In  the  action  upon  the  note  for  $3,366.75,  Brown  and  his  sure- 
ties pleaded,  and  introduced  evidence  in  support  of,  other  defenses 
besides  that  based  upon  the  release  of  the  pledged  judgment,  so, 
that,  although  the  record  in  the  case  before  us  establishes  the  fact 
that  there  was  evidence  that  the  jury  applied  a  portion  of  Brown's 
claim  for  damages  on  account  of  that  release  in  payment  of  the  note, 
it  fails  to  disclose  what  portion  of  that  claim  was  thus  applied.  In 
this  state  of  the  record  the  charge  of  the  court  below  was  based  upon 
the  rule  of  law  that  one  may  not  split  his  cause  of  action ;  that  if, 
by  an  action  or  defense  he  avails  himself  of  a  part  of  a  single  claim 
or  obligation,  he  thereby  estops  himself  from  enforcing  the  re- 
mainder of  it ;  and  that,  as  Chief  Justice  Shaw  felicitously  expresses 
it,  "he  can  not  use  the  same  defense  first  as  a  shield  and  then  as  a 
sword."  O'Connor  v.  Varney,  10  Gray  231 ;  Britton  v.  Turner, 
6  N.  H.  481,  495,  26  Am.  Dec.  713 ;  Batterman  v.  Pierce,  3  Hill  171 ; 
Machine  Co.  v.  Farmer,  27  Minn.  428,  430,  8  N.  W.  141 ;  Bolen 
Coal  Co.  V.  Brick  Co.,  52  Kans.  747,  749,  35  Pac.  810;  Lucas  v.  Le 
Compte,  42  111.  303,  305 ;  Sutherland  on  Damages,  sections  186,  187, 
189;  Freeman  on  Judgments,  sections  2^/,  224;  2  Van  Fleet's 
Former  Adjudication,  p.  867;  Desha's  Exrs.  v.  Robinson,  17  Ark. 
245.^3 

The  plaintiflf  does  not  dispute  this  general  rule  of  practice,  but 
he  insists  that  his  case  is  not  governed  by  it,  because  the  release  of 
the  judgment  constitutes  a  payment  of  the  note,  and  he  v/as  com- 
pelled to  present  that  release  as  a  defense  to  the  action  upon  the  note, 
or  to  entirely  lose  all  benefit  of  it.  But  was  the  plaintiff  required 
to  set  up  his  claim  for  damages  from  the  release  of  the  judgment 
as  a  defense  to  the  action  upon  the  note  and  under  penalty  of  a  loss 
of  all  remedy  upon  it  ?  The  contract  of  the  bank,  the  pledgee,  was  to 
exercise  reasonable  diligence  to  collect  the  judgment  and  to  apply  the 
proceeds  of  it  to  the  payment  of  the  note  for  $3,366.75.  The  claim 
of  Brown  was  that,  without  his  consent,  and  in  violation  of  this 
agreement,  the  bank  released  the  judgment  which  was  collectible, 
without  collecting  it,  to  his  damage  in  the  sum  of  $7,500.  These 
facts  appear  to  present  an  affirmative  cause  of  action  for  breach  of 
the  contract  of  pledge,  which  was  perfectly  available  to  the  plaintiff 
in  an  independent  action,  regardless  of  the  proceedings  of  the  bank 
upon  the  note.  They  undoubtedly  constituted  a  tort  and  a  cause  of  ac- 
tion for  conversion  (Colebrook  on  Collateral  Securities,  section  131.) 
But  the  pledger  had  the  option  to  waive  the  tort,  and  to  sue  for  breach 
of  the  contract.    The  plaintiff  held  this  cause  of  action  against  the 

"Compare  Davis  v.  Hedges,  L.  R.  (1871)  6  Q.  B.  687,  and  see  also  2 
Black.  Judgments  (2d  ed.)  §  768. 


(^85  JUDGMENT 

bank  when  the  latter  l)rou.c:ht  its  action  against  him  and  his  sureties 
upon  his  note.  His  cause  of  action  for  breach  of  the  contract  of  the 
plcdj^e  exceeded  in  amount  the  sum  due  u])on  iiis  note.  His  claim 
for  damages  was  not  only  an  affirmative  cause  of  action  against  tlie 
bank,  but  it  also  constituted,  at  his  option,  a  good  reason  why  the 
bank'  was  not  entitled  to  recover  upon  the  note,  a  good  defense  of 
payment  of  the  note  to  the  action  upon  it.  Brozvn  v.  First  National 
Bank,  112  Fed.  901,  904,  50  C.  C.  A.  602,  605,  56  L.  R.  A.  876; 
Colebrook  on  Collateral  Securities  (2d  ed.),  section  114.  If  the 
facts  which  condition  this  claim  of  Brown  had  constituted  a  de- 
fense to  the  action  upon  the  note,  and  nothing  more,  he  would  have 
been  required  to  present  them  in  that  action  at  his  peril,  and,  if  he 
failed  to  do  so,  a  judgment  on  the  note  would  have  rendered  his 
claim  upon  them  res  adjudicata.  Inasmuch,  however,  as  they  pre- 
sented an  affirmative  cause  of  action  against  the  plaintiff  as  well  as  a 
good  defense  of  payment  to  the  action  of  the  bank  upon  the  note,  the 
choice  was  his  to  interpose  them  as  a  defense  or  to  reserve  tliem  and 
maintain  an  independent  action  upon  them  for  all  the  damages  which 
he  had  sustained.  A  failure  of  a  defendant  in  an  action  to  plead  or 
prove  facts  purely  defensive  renders  such  matters  res  adjudicata 
after  iudgment  and  conclusively  estops  him  from  again  presenting 
them.^*  'i  Van  Fleet  on  Former  Adjudication,  section  198.  But 
where  the  facts  which  establish  his  defense  also  constitute  an  affirm- 
ative cause  of  action  against  the  plaintiff,  he  has  the  option  to  inter- 
pose them  as  a  defense,  or  to  reserve  them  for  an  independent  or 
cross  action.  If  he  refrains  from  presenting  tliem  as  a  defense,  the 
judgment  in  the  action  against  him  does  not  bar  or  adjudicate  his 
affirmative  cause  of  action  upon  them,  and  he  is  free  to  subse- 
quently maintain  it.  i  Freeman  on  Judgments,  sections  277,  224; 
2  YanFleet  on  Former  Adjudication,  section  436;  Cook  v.  Moseley, 
13  Wend.  2yy;  i  Sutherland  on  Damages,  section  187;  Batterman 
V.  Pierce,  3  Hill  171,  174;  Britton  v.  Turner,  6  N.  H.  481,  495,  26 
Am.  Dec.  713;  Bartli  v.  Burt,  43  Barb.  628;  Mimnaugh  v.  Partlin, 
67  Mich.  391,  34  N.  W.  717.  The  reason  for  this  rule  is  that  the 
damages  resulting  from  the  plainintiff's  wrongful  act  may  be  indeter- 
minate, or  may  not  have  entirely  accrued,  when  he  brings  his  action, 
and  it  might  be  unjust  or  inequitable  to  permit  him  to  determine  the 
time  when  the  defendant  must  present  and  prove  his  claim  for  the 
damages  w^hich  he  has  suffered  from  the  breach  of  the  plaintiff's 
contract. 

The  application  of  this  rule  of  law  to  the  facts  of  the  case  in 
hand  seems  to  strongly  indicate  that  the  plaintiff  had  an  indivisible 
affirmative  cause  of  action  against  the  bank  for  the  wrongful  sur- 
render of  the  judgment,  that  he  elected  to  use  a  portion  of  it  in 
defense  to  the  bank's  action  upon  his  note,  and  that  he  thereby  con- 

"Loring  v.  Mansfield,  17  Mass.  394  (1821)  ;  Broughton  v.  Mcintosh,  i 
Ala.  103  (1840);  Binck  v.  IVood,  43  Barb.  (N.  Y.)  315  (1864);  Gilson  v. 
Bingham,  43  Vt.  410,  5  Am.  Rep.  289  (1871)  ;  j^lhT'^  /j;;s{pnrd  Estate.  169 
Paj6og^2  Atl.  621  (1895)  ;  Weiser  v.  Kling,  38'7^  Div.  266,  57  ^-  ^-  S. 
^nt^oo)  ;  Wcinvwn  v.  Salit,  85  Misc.  456,  147  N.  Y.  S.  758  (1914)- 


TAYLOR   V.    CLAYPOOL  587 

clusively   estopped   himself    from   maintaining   an   action   for   any 
part  of  it.^^ 

Judgment  affirmed. 


TAYLOR  V.  CLAYPOOL 

Supreme  Court  of  Indiana,  1841 

5  Black f.  (Ind.)  557 

Error  to  the  FrankHn  Circuit  Court. 

Blackford,  J. :  Taylor  brought  an  action  of  assumpsit  against 
William  H.  Aloseley  and  William  W.  Claypool,  on  a  joint  promis- 
sory note.  The  writ  was  returned  noti  est  inventus  as  to  Mose- 
ley.  Claypool  appeared  and  pleaded  as  follows:  That  the  plaintiff 
heretofore,  etc.,  impleaded  the  defendant  and  Moseley,  etc.,  for  not 
performing  the  same  promises,  etc. ;  and  that  the  plaintiff  in  that 
suit  (it  being  suggested  that  the  writ  had  been  served  on  Moseley 
and  not  on  Claypool)  obtained  a  judgment  against  Moseley  for  the 
amount  due,  etc.  General  demurrer  to  the  plea,  and  judgment  for 
the  defendant. 

This  is  a  joint  action  against  Moseley  and  Gaypool;  and,  to 
support  it,  the  plaintiff  must  have  joint  cause  of  action  against  the 

''Accord:  Eastmure  v.  Laws,  5  Bing.  (N.  Car.)  444  (1839);  Good  % 
Good,Q  Watts  (Pa.)  567  (1840)  ;  Sargent  v.  Fitspatrick,  70  Mass.  SnTiSSS)  ; 
Eaker  v.  Stinch field,  57  Maine  363  (1869);  Inslee  v.  Hmipton,  11  Hun  (N. 
Y.)  156  (1877)  ;  Jenninffs  v.  Hare.  104.  Pa.  St.  a8q  (,188-^ )  ;  Wright  v.  Ander- 
son, 117  Ind.  349,  20h.il..  247  (1888)  ;  Clement  v.  Field,  147  U.  S.  467,  13  Sup. 
Ct.  358,  37  L.  ed.  244  (1893)  ;  Greenwood  Drug  Co.  v.  Bromonia  Co.,  81  S. 
Car.  516,  62  S.  E.  840,  128  Am.  St.  929  (1908)  ;  Jones  v.  Charles  Warner  Co., 
25  Del.  566,  83  Atl.  131  (1912)  ;  Nernst  Lamb  Co.  v.  Hill  24^  Pa.  ^/[S,  90  Atl. 
137.(1914)-  So,  where  a  judgment  is  recovered  on  a  claim,  it  is  no  longer 
available  as  a  counterclaim  in  a  pending  action.  Rosenfeld  v.  Solomon,  61 
Misc.,  238,  113  N.  Y.  S.  72;^  (1908)  ;  Townsend  v.  Niles,  210  Mass.  524,  96 
N.  E.  1035  (1912).  Generally,  where  a  defendant  has  a  set-ofif  or  counterclaim 
he  may  use  it  or  not  at  his  option,  and  if  he  does  not  use  it  he  is  not  pre- 
cluded from  maintaining  a  separate  action.  Morton  v.  Bailey,  2  111.  213,  27 
Am.  Dec.  767  (1S35)  ;  Judah  v.  Brandon,  5  Blackf.  (Ind.)  506  (1841); 
Gilmore  v.  Reed,  j6  Pa.  St.  462  (1874)  ;  Tomlinson  v.  Onigley,  5  Houst. 
(Del.)  168  (iS76);'Longstreet  v.  I^hile,  39  N.  J.  L.  63  (1876)  ;  'Dewsnap  v. 
Davidson,  18  R.  I.  98,  26  Atl.  902  (1892)  ;  New  England  Mortgage  Security 
Co.  V.  Fry,  143  Ala.  637,  42  So.  57,  in  Am.  St.  62  (1904)  ;  Virginia-Carolina 
Chemical  Co.  v.  Kirven,  215  U.  S.  252,  54  L.  ed.  179  (1909),  affirming  Kirven 
V.  Virginia-Carolina  Chemical  Co.,  77  S.  Car.  493,  58  S.  E.  424;  Kaufman  v. 
Cooper,  39  Mont.  146,  loi  Pac.  969  (1909)  ;  Steel  v.  Holtzer,  144  N.  Y.  S.  643 
(1913);  Secor  V.  Siver,  165  Iowa  673,  146  N.  W.  845  (1914).  A  fortiori 
where  the  claim  was  unavailable  as  a  defense  in  the  former  action.  De  Graef 
V.  Wyckoff,  118  N.  Y.  I,  22  N.  E.  11 18  (1889)  ;  ThroM.  V-  Susquehanna  Mut. 
Fire  {ns   Cn  .  t^i^  Pa    St.  427.  17  Atl.  473.  II  Am. 'Rep.  909  (1889). 

_  By  statute,  a  counterclaini  is  sometimes  barred  unless  set  up  in  the 
action  brought  against  the  party  in  whose  favor  it  exists.  Brosnan  v.  Kramer, 
13s  Cal.  36,  66  Pac.  979  (1901)  ;  Douglas  v.  First  Nat.  Bank  of  Hastings, 
17  Minn.  35  (1871).  So,  in  actions  before  justices  of  the  peace.  Henry  v. 
Mil  ham,  13  N.  J.  L.  266  (1832)  ;  Herring  v  Adams.  K  Watts  &  S.  (Pa)  459 
(1843)  ;  Lathrop  V.  Hayes,  57  111.  279  (1870).  ^~^ 


5SS  JUDGMENT 

defendants.  The  pica  sliows  that  the  plaintiff  has  no  such  cause  of 
action;  because  it  shows  tliat  he  had  previously  obtained  judgment 
against  Moseley  on  the  note  now  sued  on.  The  note,  at  least  so 
far  as  Moseley  is  concerned,  was  merged  in  the  judgment;  and  any 
suit  in  which  he  is  defendant,  founded  on  the  note,  must  be  barred 
by  tliat  judgment.  It  is  true  that,  by  our  statute,  if  a  suit  on  a  joint 
contract  be  brought  against  two,  and  one  only  can  be  found,  judg- 
ment can  be  taken  against  him  alone  on  whom  process  has  been 
served.  R.  S.  1838,  p.  446.  But  still  as  the  action  is  against  both, 
a  judgment  against  the  one  served  with  process  can  not  be  obtained, 
unless  the  plaintiff  can  show  that  he  has  then  subsisting  a  good  cause 
of  action  against  both.  The  case  of  Sheehy  v.  Mandevill  et  al,  6 
Cranch  253,  seems  to  be  opposed  to  the  plea,  before  us ;  but  that  case, 
as  shown'in  Robertson  v.  Smith,  18  Johns.  459,  can  not  be  supported. 
Judgment  affirmed."'^ 


SESSIONS  V.  JOHNSON 

Supreme  Court  of  the  United  States,  1877 

95  U.  S.  347 

Error  to  the  Circuit  Court  of  the  United  States  for  the  District 
of  ^Massachusetts. 

Kane,  Sprague  &  Co.,  on  April  5,  1870,  mortgaged  their  stock, 
tools  and  fixtures  to  W.  W.  Sprague,  to  secure  him  as  their  in- 
dorser,  and  he  assigned  the  mortgage  to  the  defendant  below  as 
security  for  a  debt.  On  October  12th,  the  same  mortgagors  gave 
a  second  mortgage  on  the  same  and  other  property  to  E.  A.  Good- 
now  for  $4,000,  which  sum  he  paid  to  W.  W.  Sprague,  who  used  it 


"Accord:  Phxlson  v.  Bamp field,  I  Brev.  (S.  Car.)  202  (1S03) -JVard  v. 
Johnson,  13  Mass.  148  (1816)  ;  Williams  y.  Mc Fall,  2  Serg  &  R.  (Pa.)  280 
(1816)  ;  Robertson  v.  Smith,  18  Johns.  (i\.  Y.)  459,  9  Am.  Dec.  227  (1821)  ; 
Smith  V.  Black.  9  Serg.  &  R  (Pa.)  142,  11  Am.  Dec.  686  (1822)  ;  Wann  v. 
McMiilty,  7  111.  355,  43  Am.  Dec.  58  (1845)  ;  Henderson  v.  Reeves,  6  Blackf. 
(Ind.)  loi  (184O;  Moale  v.  Hollins,  11  Md.  11,  33  Am.  Dec.  684  (1839); 
Peters  v.  San  ford,  i  Den.  (N.  Y.)  224  (1845)  ;  King  v.  Hoare,  13  M.  &  W. 
494  (1844)  ;  Fcrrall  v.  Bradford,  2  Fla.  508,  50  Am.  Dec.  293  (1849)  ;  Sloo 
V.  Lea,  18  Ohio,  279  (1849)  ;  Candee  v.  Clark,  2  Mich.  255  (1851)  ;  Thompson 
v.  Emmert,  15  111.  415  (1854)  ;  Siiydam  v.  Barber,  18  N.  Y.  468,  75  Am.  Dec.  254 
(1858);  Brady  v.  Reynolds,  13  Cal.  31  (1859);  Mason  v.  Eldred,  6  Wall. 
(U.  S.)  231,  18  L.  ed.  783  (1867),  overruling  Sheehy  v.  Mandeville,  6  Cranch 
(\J.  S.)  254  (1810);  Kingslev  v.  Daz'is,  104  Mass.  178  (1870);  Reynolds  v. 
Pittsburgh  6-c.  R.  Co.,  29  Ohio  St.  602  (1876)  ;  Kendall  v.  Hamilton,  L.  R.  4 
App.  Cas.  504  (1879)  ;  Latter  v.  BandoiiJ,  48 Wis.  638,  4  N.  W.  774  (1879)  ; 
Robinson  v.  Snyder,  74  Ind.  no  (1881)  ;  Janscn  v.  Grimshaw,  125  III.  468, 
17  N.  E.  850  (1888)  ;  Wilson  v.  Bncll,  117  Ind.  315,  20  N.  E.  231  (1888)  ; 
Hammond  v.  Scho field,  L.  R.  (1891),  i  Q.  B.  453;  Heckmann  v.  Young,  134 
N.  Y.  170,  31  N.  E.  513,  30  Am.  St.  655  (1892)  ;  O'H anion  v.  Scott,  89  Hun  44, 
35  N.  Y.  S.  31  (1895);  Davison  v.  Harmon,  65  Minn.  402,  67  N.  W.  1015 
(1896)  ;  Beshears  v.  Vandalia  Banking  Assn.,  73  Mo.  App.  293  (1897)  Capital 
City  Dairy  Co.  V.  Plummer,  20  Ind.  App.  408,  49  N.  E.  963  (1898)  ;  Coles  v. 
McKenna,  80  N.  J.  L.  48,  76  Atl.  344  (1910)  ;  Almand  v.  Hatticock,  140  Ga. 


SESSIONS   V.    JOHNSON  589 

in  part  to  pay  notes  given  by  the  mortgagors  upon  which  both  mort- 
gagees were  Hable.  On  October  12th,  the  whole  property  covered 
by  the  mortgages  was  sold,  the  purchaser  giving  $6,000  in  notes,  of 
which  $3,555.60  were  delivered  to  Goodnow  and  $2,444.40  to  the 
defendant,  and  both  mortgages  were  released.  Bankruptcy  proceed- 
ings were  commenced  against  Kane,  Sprague  &  Co.  on  November 
2d  in  the  same  year,  and  the  plaintiffs  below  were  appointed  as- 
signees of  the  bankrupt  estate.  The  assignees  sued  Goodnow  to 
recover  the  value  of  the  property  covered  by  his  mortgage  and  ob- 
tained judgment,  by  agreement,  for  $4,000.  They  also  brought 
another  suit  against  Goodnow  to  recover  the  preference  he  ob- 
tained through  the  payment  of  the  notes  upon  which  he  was  an 
indorser.  This  suit  was  settled  for  $2,000  and  a  release  given  him 
of  all  claims  against  him.  The  assignees  then  brought  suit  against 
the  defendant  to  recover  back  the  proceeds  of  the  $2,444.40  in  notes, 
given  to  the  defendant  on  the  release  of  the  first  mortgage,  on  the 
ground  that  they  had  been  obtained  in  fraud  of  the  bankruptcy  act. 

On  the  trial  in  the  district  court  a  verdict  was  rendered  for  the 
plaintiff  for  $2,786.56  and  judgment  thereon  affirmed  by  the  circuit 
court.  On  error  the  defendant  contended  that  the  plaintiffs  were 
estopped  by  their  previous  suit.^'' 

Clifford,  J. :  Even  without  satisfaction,  a  judgment  against  one 
of  two  joint  contractors  is  a  bar  to  an  action  against  the  other, 
within  the  maxim  transit  in  rem  judicatum;  the  cause  of  action 
being  changed  into  matter  of  record,  which  has  the  effect  to  merge 
the  inferior  remedy  in  the  higher.  King  v.  Hoare,  i^  Mees.  &  W. 
504.^* 

26,  78  S.  E.  345  (1913)  ;  Rycman  v.  Manerud,  68  Ore.  350,  136  Pac.  826  (1913)  ; 
Otherwise  where  the  defendant  in  the  second  suit  was  beyond  the  jurisdiction 
of  the  court  at  the  time  of  the  first  suit.  Olcott  v.  Little,  9  N.  H.  259,  32  Am. 
Dec.  357  (1838)  ;Yolio  v.  McGovern,  42  Ohio  St.  11  (1884)  ;  Cox  v.  Maddux, 
72  Ind.  206  (1880);  Finch  v.  Galigher,  181  111.  625,  54  N.  E.  611  (1899); 
Bradley  Engineering  &c.  Co.  v.  Heyburn,  56  Wash.  628,  106  Pac.  170  (1910), 
but  as  to  partnerships  in  Illinois  see  Fleming  v.  Ross,  225  111.  149,  80  N.  E.  92 
(1907),  and  see  Blessing  v.  Mc Linden,  81  N.  J.  L.  379,  79  Atl.  347  (1911). 

In  a  number  of  states  the  common-law  rule  is  no  longer  in  full  force, 
statutes  having  either  declared  joint  contracts  to  be  joint  and  several,  or 
provided  for  further  proceedings  against  co-obligors  joined  but  not  served 
in  the  first  action.  See  N.  Y.  Code  Civ.  Proc,  §§  1278,  19^2,  1937;  Hoffer- 
herth  v.  Nash,  191  N.  Y.  446,  84  N.  E.  400  (1908)  ;  Mass.  Rev.  L.  (1902),  ch.  170, 
§  14;  Odom  v.  Denny,  82  Mass.  114  (18&0)  ;  Penna.  Act  April  6,  1830^  P.  L. 
277,  ^i\  Lczvis  V.  Williams.  6  Whart.  (Pa.)  264.  (1840);  ct.  CouMfenorjf. 
Siihre,  71  Pa.  St.  462  (1872)  :  N.  T.  "Prac.  Act  of  1912,  March  28,  P.  L.  377, 
§  20 ;  Bonesteel  v.  Todd,  9  Mich.  371,  80  Am.  Dec.  90  (1861)  ;  Dill  v.  White, 
52  Wis.  456,  9  N.  W.  404  (1881)  ;  Westheimer  v.  Craig,  76  Md.  399,  25  Atl. 
419  (1892);  Cahoon  v.  McCidlock,  92  Va.  177,  23  S.  E.  225  (1895)  ;  Bute  v. 
Brainerd,  93  Tex.  137,  53  S.  W.  1017  (1899)  ;  Sherburne  v.  Hyde,  185  111.  580, 
57  N.  E.  776  (1900)  ;  Ingwaldson  v.  Olson,  79  Minn.  252,  82  N.  W.  579  (1900)  ; 
Middleton  v.  Nibling  (Tex.),  142  S.  W.  968  (1912). 

'The  facts  are  summarized  from  the  opinion  of  the  court,  part  of  which 
is  omitted. 

''Todd  V.  Stewart,  9  Ad.  &  El.  (N.  S.)  759  (1846)  ;  Stewart  v.  Todd,  9 
Ad.  &  EL  (N.  S.)  767  (1846)  ;  Ex  parte  Fewings,  L.  R.  25  Ch.  Div.  338  (1883). 
But  the  judgment  does  not  extinguish  any  remedy  except  the  particular  cause 
of  action  in  respect  of  which  it  was  recovered,  and  the  creditor  is  not  pre- 
cluded from  enforcing  any  collateral  security  he  may  have  taken.   Drake  v. 


590  JUDGMENT 

Judcnnont  in  such  case  is  a  bar  to  a  subsequent  action  against 
the  "other  contractor,  because,  the  contract  being  merely  joint,  there 
can  be  but  one  recovery;  and  consctiucntly  the  plaintiff,  if  he  pro- 
ceeds ag^ainst  one  only  of  two  joint  promisors,  loses  his  security 
against  the  other,  the  rule  being  that  by  the  recovery  of  the  judg- 
ment the  contract  is  merged  and  higher  security  substituted  for  the 
debt.  Robertson  v.  Smith,  i8  Johns.  (N.  Y.)  477;  Ward  v.  Johnson, 
13  INIass.  149;  Cozvlcy  v.  Patch,  120  Mass.  138;  Mason  v.  Eldred, 
6  Wall.  (U.  S.)  231. 

But  the  rule  is  otherwise  where  the  contract  or  obligation  is 
joint  and  several,  to  the  extent  that  the  promisee  or  obligee  may 
elect  to  sue  the  promisors  or  obligorf>  jointly  or  severally  ;^°  but  even 
in  that  case  the  rule  is  subject  to  the  limitation,  that,  if  the  plaintiff 
obtains  a  joint  judgrnent,  he  can  not  afterward  sue  them  separately, 
for  tlie  reason  that  the  contract  or  bond  is  merged  in  the  judgment; 
nor  can  he  maintain  a  joint  action  after  he  has  recovered  judgment 
against  one  of  the  parties  in  a  separate  action,  as  the  prior  judgment 
is  a  waiver  of  his  right  to  pursue  r.  joint  remedy.^" 

Different  modifications  of  the  rule  also  arise  where  the  contro- 
versy grows  out  of  the  tortious  acts  of  the  defendants.  Where  a 
trespass  is  committed  by  several  persons,  the  party  injured  may  sue 
any  or  all  of  the  wrongdoers,  but  he  can  have  but  one  satisfaction 
for  the  same  iniury,  any  more  tlian  in  an  action  of  assumpsit  for  a 
breach  of  contract. 

Courts  everywhere  in  this  country  agree  that  the  injured  party 
in  such  a  case  may  proceed  against  all  the  w-rongdoers  jointly,  or 
he  may  sue  them  all  or  any  of  them  separately ;  but  if  he  sues  them 
all  jointly,  and  has  judgment,  he  can  not  afterward  sue  any  one  of 
them  separately;  or,  if  he  sues  any  one  of  them  separately,  and  has 
judgment,  he  can  not  afterward  seek  his  remedy  in  a  joint  action, 
because  tlie  prior  judgment  against  one  is,  in  contemplation  of  law, 
an  election  on  his  part  to  pursue  his  several  remedy.*^ 


Mitchell,  3  East  251  (1803)  ;  Wcgg  Prosser  v.  Evans,  L.  R.  (1895),  i  Q.  B. 
108;  Economic  Life  Assur.  Soc.  v.  Usborne,  L.  R.  (1902),  A.  C.  147;  IVJiitev. 
j'mt//;  3^  Pa.  St.  186,  7=;  Am.  Dec.  589  (1859)  I  Steele  v.  Lord,  28  Hun  (N.  YT) 
27(1882).  So  also,  a  judgment  on  the  collateral  does  not  merge  the  principal 
debt.  Ackley  v.  Westervelt,  86  N.  Y.  448  (1881)  ;  Vannxcm  v.  Burr,  151  Mass. 
386,  24  N.  E.  773,  21  Am.  St.  458  (1890).  See  also,  note  to  preceding  case  as 
to  statutor>'  modifications  of  common-law  rule. 

^"Simonds  v.  Center,  6  Mass.  18  (1809)  ;  Townsend  v.  Riddle,  2  N.  H.  448 
C1822)  ;  Clinton  Bank  v.  Hart,  5  Ohio  St.  34  (1855)  ;  People  v.  Harrison,  82 
111.  84  (1876)  ;  Davis  v.  Schmidt,  126  Wis.  461,  106  N.  W.  119,  no  Am.  St. 
938  (1906)  ;  Taylor  v.  Sartorious,  130  Mo.  App.  23,  108  S.  W.  1089  (1907)- 

*''Ex  parte  Rowlandson,  3  P.  Wms.  405  (i735)  ;  Bangor  Bank  v.  Treat, 
6  Greenl.  (Maine)  207,  19  Am.  Dec.  210  (1829)  ;  McDil'itt  v.  McDivitt.  4  Watts. 
(Pa.)  384  (1835)  ;  United  States  v.  Price,  50  U.  S.  83,  13  L.  ed.  56  (1850)  ;  Fay 
V.  Jenks,  78  Mich.  312,  44  N.  W.  380  (1889)  ;  Scanlon  v.  People,  95  111.  App.  348 
(1900).  Contra:  Kirkpatrick  v.  Stinglcy,  2  Ind.  269  (1850);  but  compare 
United  Oil  &c.  Co.  v.  Alberson,  43  Ind.  App.  626,  88  N.  E.  359  (1908). 

^^Livingston  v.  Bishop,  l  Johns.  (N.  Y.)  290,  3  Am.  Dec.  330  (1806)  ; 
Ammonett  v.  Harris,  I  H.  Sc  Vi.  (Yn.)  488  (1807)  ;  SwitJi  v,  Rines,  Fed.  Cas. 
No.  13100,  2  S>imn.  338  (1836)  ;  Cameron  v.  Kanrich,  201  Mass.  451,  87  N.  E. 
60s   (1909).    Compare  Davis  v.  Caswell,  50  Maine  294  (1862);  Gilbreath  v. 


SESSIONS   V.    JOHNSON  59I 

Where  the  injury  is  tortious,  the  remedy  may  be  joint  or  sev- 
eral ;  but  the  rule  in  this  country  is  that  a  judgment  against  one  with- 
out satisfaction  is  no  bar  to  an  action  against  any  one  of  the  other 
wrongdoers.  Lovejoy  v.  Murray,  3  Wall.  (U.  S.)  i,  2  Cliff.  (U.  S.) 
196;  Livingston  v.  Bishop,  i  Johns.  (N.  Y.)  290;  Drake  v.  Mitchell, 
3  East.  258.^2 

Separate  mortgages  were  held  by  the  defendant  and  the  other 
mortgagee,  of  different  dates,  and  it  appears  that  they  were  given 
for  entirely  different  considerations.  Of  course,  the  respective  mort- 
gagees held  the  property  subject  to  an  equity  of  redemption  in  the 
mortgagors;  and  the  case  shows  that  the  mortgagors  sold  the  re- 
spective equities  of  redemption,  and  distributed  the  proceeds  of  the 
sale  between  the  respective  mortgagees.  Throughout,  the  relations 
of  the  mortgagees  to  the  insolvent  debtors  were  entirely  separate. 
They  never  held  any  joint  claim  against  the  insolvent  mortgagors, 
nor  did  the  mortgagees  ever  receive  any  joint  security  from  the 
insolvent  debtors  for  their  respective  claims.  Instead  of  that,  the 
respective  equities  of  redemption  remained  in  the  mortgagors,  and 
the  conceded  facts  show  that  they  sold  the  equities  and  distributed 
the  proceeds  between  the  respective  mortgagees,  showing  to  a  dem- 
onstration that  there  never  was  any  joint  contract  relation  between 
the  mortgagees  and  the  insolvent  debtors. 

Even  the  proceeds  of  the  sale  of  the  equities  of  redemption,  as 
distributed  between  the  respective  mortgagees,  were  entirely  sepa- 

Jones,  66  Ala.  129  (1880)  ;  Moore  v.  Chattanooga  Electric  R.  Co.,  119  Tenn 
710,  109  S.  W.  497,  16  L.  R.  A.  (N.  S.)  978  (1907).  In  Allen  v.  Liggett.  81 
Pa.  St.  486  ( 1876  )^^  the  summons  was  in  trespass  q.  c.  f.  against  two,  onT~of 
whom  was  not  served.  A  judgment  against  the  one  served  remaining  unsatis- 
fied, it  was  held  a  second  action  could  be  maintained  against  the  tort  feasor 
not  served. 

*^Accord:  Wright  v.  Lathrop,  2  Ohio  33,  15  Am.  Dec.  529  (1825)  ;  Sprague 
V.  Waite,  36  Mass.  455  (1837)  :  Fox  v.  Northern  Lihrrtir.^.  %  Watts  &  S.  (Pa.) 
103  (1841)  ;  Kennedj^jf^Mlijiy,_l2jPa^St.  408  (1850)  ;  Brooks  v.  Ashhurn,  9 
Ga.  297  (i85iy7~^/c«M  v.  Crocheron,  19  Ala.  647,  54  Am.  Dec.  203  (1851)  ; 
Savage  v.  Stevens,  128  Mass.  254  (1880)  ;  Albright  v.  McTighe,  49  Fed.  817 
(1892)  ;  Russell  v.  McCall,  141  N.  Y.  437,  36  N.  E.  40S,  38  Am.  St.  807  (1894)  ; 
Cleveland  v.  Bangor,  87  Maine  259,  32  Atl.  892,  47  Am.  St.  326  (1895); 
Roodhouse  v.  Christian,  158  111.  137,  41  N.  E.  748  (1895);  Vincent  v.  Mc- 
Namara,  70  Conn.  332,  39  Atl.  444  (1S9S);  Cashing  v.  Hederman,  117  Iowa 
637,  91  N.  W.  940,  94  Am.  St.  320  (1902)  ;  Johnston  v.  McKenna,  73  N.  J  Eq. 
I,  67  Atl.  395  (1907)  (and.  74  N.  J.  Eq.  448,  70  Atl.  312)  ;  Tandnip  v.  Samp- 
sell,  234  111.  526,  8s  N.  E.  331,  17  L.  R.  A.  (N.  S.)  852  (1008)  ;  Sqnire  v. 
Ordemann,  194  N.  Y.  394,  87  N.  E.  435  (1909)  ;  Cole  v.  Roebling  Const.  Co., 
156  Cal.  443,  105  Pac.  255  (1909)  ;  Nelson  v.  Illinois  Cent.  R.  Co.,  98  Miss. 
295,  53  So.  619,  31  L.  R.  A.  (N.  S.)  689  (1910);  Berg  v.  Bates,  153 
App.  Div.  12,  137  N.  Y.  S.  1032  (1912)  ;  Lovimis  v.  Loomis,  148  Wis. 
C53,  135  N-  W.  125  (1912);  Charles  E.  Johnson  Co.  v  Philnriplphln^  -y^f. 
Pa.  sio.  84  Atl.  1014  (1912);  Renfrow  v.  Condor,  isyi^TTOiTisasrw. 
385  (1913)-  In  England  a  judgment  without  more  against  one  torfeasor  is  a 
bar  to  any  further  proceedings  against  his  co-trespassers.  Buckland  V.  John- 
son, IS  C.  B.  145  (1854)  ;  Brown  v.  Wooiton,  Cro.  Jac.  y^  (1605)  ;  Brinsmcad 
\.  Harrison,  L.  R.  6  C.  P.  584  (1871)  (affd.  L.  R.  7  C.  P.  547)  (1872^  and 
this  rule  is  followed  in  a  few  American  decisions,  Hunt  v.  Bates,  7  R  I  217 
82  Am.  Dec.  592  (1862)  ;  Pctticolas  v.  Richmond,  95  Va.  456  (1897)  ;  Staunton 
Tel.  Co.  V.  Buchanan,  108  Va.  810,  62  S.  E.  928  (1908)  ;  and  in  Canada  Long- 
more  V.  Mc Arthur,  43  Can.  Sup.  Ct.  640  (1910)  (affg.  19  Manitoba  641). 


592  JUDGMENT 

rate:  nor  would  it  make  any  dilTorcncc  if  the  mortgagees,  in  re- 
ceiving their  respective  jiortions  of  those  j-iroceeds,  had  acted  jointly, 
as  it  is  well-settled  law  that  where  the  tort  is  joint  the  injured  party 
niav  liave  a  joint  or  several  remedy,  the  rule  being  that  a  judgment 
against  one  wrongdoer  without  satisfaction  is  no  bar  to  action 
against  any  one  of  the  other  joint  tort-feasors.  Lovejoy  v.  Murray, 
supra. 

Joint  wrongdoers  may  be  sued  separately ;  and  the  plaintiff  may 
prosecute  the  same  until  the  amount  of  the  damages  is  ascertained 
by  verdict,  but  the  injured  party  can  have  only  one  satisfaction,  the 
rule  being  that  he  may  make  his  election  de  mclioribus  damnis, 
which,  when  made,  is  conclusive  in  all  subsequent  proceedings. 
Heydon's  Case,  ii  Colo.  50;  White  v.  Philbrick,  5  Greenl.  (Maine) 
147;  Knickerbocker  v.  Colver,  8  Cow.  (N.  Y.)  in;  O'Shea  v. 
Kirkcr,  4  Bosw.  (N.  Y.)  120." 

Without  more,  these  remarks  are  sufficient  to  show  that  tlie 
theory  of  estoppel  can  not  be  maintained,  and  that  the  first  two 
errors  assigned  must  be  overruled,  for  two  reasons:  i.  Because  the 
relation  of  joint  contractors  never  subsisted  between  the  insolvent 
debtors  and  the  mortgagees,  to  whom  the  proceeds  of  the  equities 
of  redemption  were  distributed  by  the  insolvent  mortgagors.  2.  Be- 
cause the  mortgagees  acted  separately  in  accepting  certain  portions 
of  the  proceeds  of  that  sale;  nor  would  it  have  made  any  difference 
if  they  had  acted  jointly,  as  it  is  settled  by  all  the  authorities  that 
when  several  persons  have  been  jointly  concerned  in  the  commission 
of  a  wrongful  act  they  may  all  be  charged  jointly  as  principals,  or 
the  plaintiff  may  sue  any  one  of  the  parties  separately,  torts  being 
in  their  nature  several,  even  v/hen  the  wrongful  act  was  jointly  com- 
mitted. Ad.  Torts  (3d  cd.),  939. 

Suppose  tliat  is  so,  still  it  is  insisted  by  the  defendant  tliat  the 


"Duane  v.  Mtercken,  4  Yeates  (PaJ  437  (1870)  ;  Thomas  v.  Runisey,  6 
Tohnsr(NrY.r26  O810')  ;  Dexter  v.  Broat,  16  Barb.  (N.  Y.)  337  (1853); 
Karr  V.  Barstozv,  24  111.  580  (1S60)  ;  Wright  v.  London  General  Omnibus  Co., 
L.  R.  2  Q.  B.  Div.  271  (1877)  ;  Putney  v.  O'Brien,  53  Iowa  117,  4  N.  W.  891 
(1880)  ;  Luce  v.  Dexter,  135  Mass.  23  (1883)  ;  S cither  v.  Philadehhia  Tr.  Qo.. 
i^sPa/Stsg^,  17  Atl.  338,  4  L.  R.  A.  54,  n  Am.  St.  905  (1889)  ;  Spurr  v. 
iXortTi  Hudson  &c.  R.  Co.,  56  N.  J.  L.  346,  28  Atl.  582  (1894)  ;  Dicken^v. 
Balbach,  9  Pa.  Dist.  449  (1900)  ;  Fitzgerald  v.  Union  Stock  Yards  Co.,  89 
IS,ebr.  393,  131  N.  W.  6i2r3TX.  R.  A.  (N.  S.)  98311  (1911)-  See  also,  Taylor 
V.  Hollard,  L.  R.  (1902),  i  K.  B.  676.  A  few  American  cases  hold  that  the 
mere  issuing  of  an  execution  will  be  regarded  as  an  election  to  consider  the 
execution  defendant  alone  responsible.  White  v.  Philbrick,  5  Greenl. 
(Maine)  147,  17  Am.  Dec.  214  (1827)  ;  Smith  v.  Singleton,  2  McMuU  (S.  Car.) 
184,  39  Am.  Dec.  122  (1842)  ;  Boardman  v.  Acer,  13  Mich,  jj,  87  Am.  Dec. 
736  (1S65);  Fleming  v.  McDonald,  50  Ind.  278,  19  Am.  Rep.  711  (1875); 
Kendall  v.  School  Dist.,  75  Maine  358  (1883).  But  the  majority  hold  that 
actual  satisfaction  is  required  to  constitute  a  bar.  Sheldon  v.  Kibbc,  3  Conn. 
214,  8  Am.  Dec.  176  (1819)  ;  Osterhout  v.  Roberts,  8  Cow.  (N.  Y.)  43  (1827)  ; 
Flo\d  V.  Bro'ii'ne.  1  Rawlc  (Pa.)  121.  18  Am.  Dec.  602  (1829);  Blann  v. 
Crocheron,  20  Ala.  320  (1852)  ;  Page  v.  Freeman,  19  Mo.  421  (1854)  ;  Lovejoy 
V.  Murray,  3  Wall.  (U.  S.)  I,  18  L.  ed.  129  (1865)  ;  Griffie  v.  McClung,  5  W. 
Va.  131  '(1S72);  Gittleman  v.  Feltman,  122  App.  Div.  385,  106  N.  Y.  S.  839 
(1907)  ;  McVey  v.  Manatt,  80  Iowa  132,  45  N.  W.  548  (1890)  ;  Norfolk  Lum- 
ber Co.  V.  Simmons,  2  Marv.  (Del.)  317,  2  Hurl.  &  Colt.  717,  43  Atl.  163 
(1897)  ;  Squire  v.  Ordemann,  194  N.  Y.  394,  87  N.  E.  435  (1900). 


SESSIONS  V.    JOHNSON  593 

plaintiff  can  not,  in  any  proper  view  of  the  facts,  recover  more  than 
the  difference  between  the  amount  paid  by  the  other  mortgagee  and 
the  value  of  the  property  distributed.  What  the  plaintiffs  claim  is 
the  amount  the  defendant  received  from  the  insolvent  debtors  as 
part  of  the  proceeds  of  the  sale  of  the  equities  of  redemption.  Abun- 
dant proof  is  exliibited  that  he  received  $2,444.40,  and  it  is  conceded 
that  the  whole  of  that  amount  remains  in  the  hands  of  the  defendant. 

Two  sums,  amounting  in  the  whole  to  $6,000,  were  received  by 
the  plaintiffs  of  the  second  mortgagee  before  the  present  suit  was 
instituted.  Four  thousand  dollars  of  the  amount  was  recovered  by 
the  judgment  in  favor  of  the  plaintiffs.  They  also  instituted  a  second 
suit  against  the  same  party,  to  recover  the  amount  received  by  him  in 
payment  of  the  notes  upon  which  he  was  liable  as  indorser,  which 
action  was  compromised  by  the  payment  to  the  assignees  of  $2,000, 
as  appears  by  the  agreed  statement  of  facts.  Such  payment  being 
made,  the  assignees  executed  a  release  to  tlie  defendant  in  that  suit 
of  all  claims  and  demands  which  they,  as  such  assignees,  has  against 
him  on  that  account. 

Judgments  bind  parties  and  privies,  but  they  do  not  bind  stran- 
gers ;  and  it  is  clear  that  the  present  defendant  was  neither  a  party 
nor  a  privy  to  the  action  in  the  first  suit,  nor  had  he  anything  to 
do  with  the  compromise  of  the  second  suit  between  those  parties. 

Enough  appears  in  the  evidence  to  establish  that  theory;  but  if 
any  possible  doubt  could  otherwise  arise  in  respect  to  the  conclu- 
sion, the  matter  is  set  entirely  at  rest  by  the  verdict  of  the  jury. 
They  were  told  by  the  court  that  if  the  plaintiffs  had  once  received 
full  satisfaction  for  tlie  proceeds  of  the  sale  from  the  other  mort- 
gagee, "then  they  can  recover  nothing  from  the  defendant" ;  and  it 
follows  from  the  verdict  that  they  did  not  recover  in  the  suits  against 
the  other  mortgagee  anything  for  the  portion  of  notes  taken  for  tlie 
sale  of  the  equities  which  was  distributed  to  the  defendant  in  the 
present  suit.  All  that  he  received  remains  in  his  hands;  and  in  as 
much  as  the  assignees  are  not  estopped  by  the  proceedings  against  the 
second  mortgagee  from  prosecuting  their  claim  against  the  defendant 
for  the  portion  of  the  proceeds  of  the  equities  of  redemption  which 
was  distributed  to  him  by  the  insolvent  debtors.  It  follows  that  the 
assignee  may  recover  the  whole  amount  of  that  portion  without 
regard  to  the  antecedent  proceedings  against  the  second  mortgagee, 
which  is  all  that  need  be  said  in  response  to  tlie  third  assignment  of 
error. 

Judgment  affirmed.^* 

*^A_cause  of  action  whether  ex'  contractu  or  ex  delicto  is  not  merged  or 
extinguished  by  the  recovery  and  satisfaction  of  a  judgment  against  a  stranger 
not  in  privity  with  or  joined  in  liabiHty  with  the  defendant.  Mathews  V. 
Lawrence,  1  Dcnio  (N.  Y.)  212,  43  Am.  Dec.  665  (1845)  ;  Ellis  v.  State,  2 
Ind.  262  (1850);  Atlantic  Dock  Co.  v.  Nczv  York,  53  N.  Y.  64  (1873); 
Bennett  V.  Field,  13  R.  I.  139,  43  Am.  Rep.  17  (1880)  ;  Hawley  v.  Dawson,  16 
Ore.  344,  18  Pac.  592  (1888).  See  also,  Bertrand  V.  Bingham,  13  Tex.  266 
(1855)  ;  Grafton  v.  Hinkley,  ill  Wis.  46,  86  N.  W.  859  (1901).  So  also,  where 
the  judgment  is  in  favor  of  the  stranger.  Scott  v.  Hartog,  75  Misc.  126,  132 
N.  Y.  S.  846  (1912)  ;  McGillvray  v.  Employers'  Liability  Assur.  Corp.,  214 
Mass.  484,  102  N.  E.  77  (1913). 
38 — Civ.  Proc. 


59-}.  JUDGMENT 

(b)    Estoppel 

PHILLIPS  V.  WARD 

Court  or  Exciikquer,  1863 

2  //.  &  C.  7^7 

Declaration. — For  money  payal)lc  by  tlic  defendants  to  the  plain- 
tiff, for  work,  etc.,  done  by  the  iilainliff  as  attorney  and  solicitor  of 
and  otherwise  for  the  defendants,  upon  their  retainer,  and  for  fees 
due  in  respect  thereof,  and  for  materials,  etc.,  provided,  and  for 
money  lent,  money  paid,  and  on  accounts  stated. 

Pica. — That  the  plaintiff  ouj;:ht  not  to  be  admitted  to  say  that 
any  money  is  payable  by  the  defendants  to  the  plaintiff  for  the 
causes  of  action  in  the  declaration  mentioned ;  because  they  say  tliat 
the  said  retainer  was  a  joint  retainer  by  the  defendants  in  this  ac- 
tion and  one  John  Bazali^ette;  .  .  .  and  that  before  this  suit 
the  plaintiff  brought  action  against  the  said  John  Bazalgette  in  the 
court  of  common  pleas  for  the  same  causes  of  action  as  in  the  decla- 
ration mentioned;  and  such  proceedings  were  thereupon  had  in 
an  action  that  afterward  and  before  this  suit  it  was  considered  by 
the  judgment  of  the  said  court  in  the  said  action  that  the  plaintiff 
should  take  nothing  by  his  writ  for  or  in  respect  of  the  said  causes 
of  action ;  and  the  said  judgment  still  remains  in  force;  and  this  the 
defendants  are  ready  to  verify.  Wherefore  they  pray  judgment  if 
the  plaintiff  ought  to  be  admitted  to  say  that  any  money  is  payable 
by  the  defendants  to  tlie  plaintiff  for  the  causes  in  the  action  in  the 
declaration  mentioned. 

Demurrer,  and  joinder  therein. 

Hayes,  Serjt.,  in  support  of  the  demurrer.  A  plaintiff  who 
has  failed  in  an  action  against  one  of  several  joint  contractors  is 
not  thereby  estopped  from  suing  the  others.  An  estoppel  would 
arise  in  another  action  between  the  same  parties  for  the  same  cause, 
but  it  is  a  novel  plea  that,  because  the  plaintiff  has  sued  the  wrong 
party,  he  is  estopped  from  suing  the  right  one.  King  v.  Hoare,  13 
Mees.  &  W.  494,  is  the  converse  of  this  case.  There  it  was  held  that 
a  judgment  (without  satisfaction)  recovered  against  one  of  two 
joint  debtors  was  a  bar  to  an  action  against  the  other.  But  that 
decision  proceeded  on  the  ground  that  a  judgment  changes  the  cause 
of  action  into  matter  of  record,  and  the  inferior  remedy  is  merged 
in  the  higher.  It  is  like  the  case  of  a  judgment  against  one  of  sev- 
eral joint  tort-feasors,  which,  of  itself,  without  execution,  is  a  bar 
to  an  action  against  the  others  for  the  same  cause.  In  an  action 
of  contract  against  A,  he  can  not  plead  in  abatement  the  pendency 
of  another  action  for  the  same  cause  against  B,  Henry  v.  Goldney, 
15  Mees.  &  W.  494;  but  the  proper  course  is  to  plead  the  non-joinder 
of  the  contractor  in  abatement.  This  plea  merely  says  that  the 
judgment  in  the  former  action  was  that  the  plaintiff  should  take 
nothing  by  his  writ;  but  that  may  have  been  on  the  ground  of  a 


PHILLIPS   V.    WARD  595 

personal  discharge,  as  by  bankruptcy  or  insolvency,  or  upon  some 
ground  which  would  not  affect  the  merits  of  this  case.  Bramwell, 
B. :  It  may  have  been  on  the  ground  that  the  plaintiff  had  not  de- 
livered a  signed  bill  as  required  by  the  6  &  7  Vict.  ch.  73,  section  37. 
PiGOTT,  B. :  Or  on  tlie  ground  of  infancy.  Channell,  B.,  referred 
to  Buckland  v.  Johnson,  15  C.  B.  145  (E.  C.  L.  R.,  vol.  80), 

Bompas,  in  support  of  the  plea.  The  plea  discloses  good  matter 
of  estoppel,  for  it  shows  that  the  plaintiff's  claim  has  been  adjudi- 
cated upon  in  an  action  against  a  co-contractor.  That  is  the  dis- 
tinction between  King  v.  Hoare  and  Henry  v.  Goldney.  In  the 
former  case  judgment  had  been  recovered,  and  the  matter  had 
passed  in  rem  judicatam;  but  in  the  latter  there  was  merely  the 
pendency  of  another  action  for  the  same  cause  against  another  party. 
The  court,  having  already  pronounced  judgment  as  to  the  validity 
of  the  plaintiff's  claim,  will  not  again  adjudicate  upon  it  in  succes- 
sive actions  against  each  co-contractor.^^ 

Pollock,  C.  B.  :  We  are  all  of  opinion  that  the  plea  can  not  be 
sustained.  This  is  an  action  against  persons  who  are  joint  debtors 
with  another  person  not  now  sued;  and  because  he  was  fortunate 
enough  to  succeed  by  some  plea  or  other  in  an  action  brought  by 
the  plaintiff  against  him  for  the  same  cause,  the  defendants  seek  to 
avail  themselves  of  his  immunity.  Now,  for  anything  which  appears 
on  the  face  of  this  plea,  he  may  have  succeeded  on  matter  of  de- 
fense, which,  though  good  with  respect  to  him,  is  not  open  to  his 
co-debtors.  The  consequence  is  that  the  plea  is  bad,  and  the  plain- 
tiff entitled  to  judgment. 

Bramwell,  B.  :  I  am  also  of  opinion  that  the  plea  is  bad.  No 
doubt  if  a  person  jointly  liable  with  others  succeeds  in  an  action 
against  him  alone  by  pleading  a  release  or  payment,  that  would 
afford  a  good  defense  to  an  action  against  the  other  joint  debtors — 
whether  pleaded  in  bar  or  by  way  of  estoppel  seems  unimportant — 
for  a  release  to  one  is  a  release  to  all,  and  payment  by  one  is  a 
discharge  of  all.  Therefore,  in  some  cases,  a  judgment  recovered 
by  one  of  several  joint  debtors  may  be  pleaded  in  an  action  against 
the  others.  But  this  plea  does  not  shov/  that  the  former  action  was 
successfully  resisted  on  some  ground  common  to  all  the  joint  debt- 
ors ;  but  only  that  the  court  gave  judgment  for  the  defendant,  which 
may  have  been  on  some  ground  purely  personal,  as  infancy,  bank- 
ruptcy, or  insolvency.  Then  it  is  said  that  the  plaintiff  should  have 
replied  specially  showing  how  it  was  that  he  could  maintain  this 
action  though  he  had  failed  in  the  other.  But  in  my  opinion  that 
is  not  so.  The  plea  ought  to  state  a  complete  defense,  and  not  call 
upon  the  plaintiff  to  answer  matter  imperfectly  pleaded. 

Channell,  B.  :  I  am  of  the  same  opinion.  The  defendants 
plead  a  judgment  recovered  by  a  joint  debtor  in  a  former  action 
for  tlie  same  cause;  and  I  think  it  incumbent  on  the  defendants  to 
show  by  their  plea  that  the  judgment  in  that  action  is  inconsistent 
with  their  liability  in  this  action.  But,  so  far  as  this  plea  states,  the 
judgment  for  the  defendant  in  the  former  action  may  have  pro- 

^'Part  of  the  argument  of  counsel  is  omitted. 


596  JUDGMENT 

cccdcJ  on  a  ground  whlcli,  tlioii.c:h  alTordlnjT  a  perfect  defense  as 
regards  him,  does  not  affect  the  liability  of  the  present  defendants. 

PicoTT,  B. :  I  am  of  tlie  same  opinion.  This  plea  is  in  form  a 
plea  in  estoppel;  but,  whether  it  be  considered  in  substance  as  a 
plea  in  estoppel  or  a  pica  in  bar,  I  think  it  bad,  for  it  is  perfectly 
consistent  with  every  allegation  in  it  that,  though  the  defendant  in 
the  other  action  recovered  judgment  against  the  plaintiff,  the  de- 
fendants in  this  action  are  still  liable.  It  is  said  that  the  plaintiff 
ought  to  have  replied  specially,  but  I  am  of  opinion  that  the  defend- 
ants ought  by  their  plea  to  show  that  the  judgment  in  the  former 
action  proceeded  on  a  ground  which  operated  as  a  discharge  of  all 
the  joint  debtors. 

judgment  for  the  plaintiff.*® 


OLD  DOMININON  COPPER  MIN.,  ETC.,  CO.  v.  BIGELOW 

Supreme  Judicial  Court  of  Massachusetts,  1909 

203  Mass.  159 

Two  bills  in  equity  were  filed  by  the  plaintiff  against  the  defend- 
ant, who  was  one  of  the  two  promoters  who  planned  and  affected 
the  organization  of  the  plaintiff  company,  to  compel,  after  rescission 
by  the  plaintiff,  the  restitution  of  the  consideration  received  by 
the  promoters  for  property  alleged  to  have  been  sold  at  a  large 
profit  without  a  full  disclosure  of  material  facts,  or  to  compel  an 
accounting  for  the  secret  profits,  and  for  damages  for  breach  of 
trust.  After  demurrers  to  the  bill  had  been  overruled,  the  defendant 
was  permitted  to  file  supplemental  answers  setting  up,  as  a  bar 
to  the  plaintiff's  claim,  a  judgment  of  the  Circuit  Court  of  the  United 
States  for  the  Southern  District  of  New  York  in  a  suit  like  one 
of  the  present  suits  in  all  particulars  except  that  it  was  prosecuted 
against  the  executors  of  the  will  of  Lewisohn,  the  defendant's  fellew 
promoter,  in  which  the  defendant's  demurrer  to  the  bill  had  been 
sustained  and  a  decree  entered  dismissing  the  bill,  which  had  been 

'"Accord:  Hunt  v.  Terrill,  7  J.  J.  Marsh.  (Ky.)  67  (1831)  ;  McLelland  v. 
RidgeiK'ay,  12  Ala.  482  (1847)  ;  Ferguson  v.  State  Bank,  11  Ark.  512  (1851)  ; 
Nevill  V.  Hancock,  15  Ark.  511  (1855)  ;  Brozvn  v.  Johnson,  13  Grat.  (Va.)  644 
(1857)  ;  Cowley  v.  Patch,  120  Mass.  137  (1876).  A  judgment  for  one  is  no 
bar  in  an  action  against  a  co-contractor  not  within  the  jurisdiction  at  time  of 
first  suit.  Larison  v.  Hager,  44  Fed.  49  (1890).  A  judgment  in  favor  of  joint 
defendants  will  not  per  se  bar  a  several  action,  vice  versa.  Detroit  v.  Hoiigh- 
ton,  42  Mich.  459,  4  N.  W.  171,  287  (1880)  ;  McLean  v.  Hansen,  37  111.  App.  48 
(1890)  ;  McCormack  v.  Barton,  19  Misc.  625,  44  N.  Y.  S.  393  (1897)  ;  Roby 
V.  Rainsherger,  27  Ohio  St.  674  (1875)  ;  Reynolds  v.  Pittsburgh  C.  &  St.  L.  R. 
Co.,  29  Ohio  St.  602  (1876).  So  also,  a  judgment  in  favor  of  one  joint  and 
several  promisor  is  no  bar  to  an  action  against  another  unless  it  is  shown  that 
the  first  judgment  was  rendered  upon  a  defense  which  would  be  an  extin- 
guishment of  the  cause  of  action.  Townsend  v.  Riddle,  2  N.  H.  448  (1822)  ; 
Hill  v.  Morse,  61  Maine  541  (1873)  ;  Spencer  v.  Dearth,  43  Vt.  98  (1870). 
Sec  also  Mann  v.  Edwards,  34  111.  App.  473  (1889). 


OLD   DOillNIOX    COPPER    MIN.    &C.    CO.    V.    BIGELOW  59/ 

affirmed  by  the  circuit  court  of  appeals  and  the  Supreme  Court  of 
the  United  States.*^  It  was  contended  that  the  matter  was  res  judi- 
cata as  to  Bigelow.  On  the  supplemental  answers  a  hearing  was  had 
before  a  single  justice,  who  reserved  this  among  other  questions 
arising  thereon  for  the  consideration  of  this  court.*^ 

RuGG,  J. :  The  liability  of  the  defendant,  as  has  been  pointed  out, 
according  to  the  law  of  this  commonwealth,  is  one  arising  ex  delicto. 
The  wrong  committed  was  a  tort,  in  which  the  defendant  and 
Levv'Isohn  acted  in  concert.  The  finding  of  the  single  justice,  sup- 
ported by  the  evidence,  is  in  substance  that  they  were  joint  tort- 
feasors. The  inquiry  then  is,  whether  one  of  several  joint  tort- 
feasors can  plead  a  judgment  in  favor  of  his  joint  tort-feasor  against 
a  plaintiff  claiming  to  have  been  injured  by  their  joint  act  as  an 
estoppel  in  suit  by  the  same  plaintiff  against  himself. 

This  can  hardly  be  regarded  as  an  open  question  in  this  com- 
monwealth. In  Sprague  v.  Oakes,  19  Pick.  (Mass.)  455,  which  was 
an  action  for  trespass  quare  clausum  fregit,  it  was  said,  respecting 
such  a  defense,  "The  defendant  v/as  neither  a  party  nor  privy  to 
that  judgment,  was  not  bound  by  it,  nor  could  he  take  advantage  of 
it."  This  case  has  never  been  overruled  or  questioned,  and  must  be 
regarded  as  stating  the  law  of  this  commonwealth.  There  are  other 
authorities  to  the  same  point.  Lansing  v.  Montgomery,  2  Johns.  (N. 
Y.)  382;  Marsh  v.  Berry,  7  Covv^  (N.  Y.)  344;  Moore  v.  Tracy,  7 
Wend.  (N.  Y.)  229;  Gittleman  v.  Feltman,  122  App.  Div.  (N.  Y.) 
385 ;  Atlantic  Dock  Co.  v.  Mayor  and  Aldermen  of  New  York,  53 
N.  Y.  64;  Tyng  v.  Clarke,  9  Hun  (N.  Y.)  269;  Calkins  v.  Allerton, 
3  Barb.  (N.  Y.)  171,  174;  Gohle  v.  Dillon,  86  Ind.  327;  Thompson 
V.  Chicago,  St.  Paul,  etc.,  R.  Co.,  71  Minn.  89;  Three  States  Lumber 
Co.  V.  Blanks,  118  Tenn.  627. 

The  reason  upon  which  these  decisions  rest  is  that  there  can  be 
no  estoppel  arising  out  of  a  judgment,  unless  the  same  parties  have 
had  their  day  in  court  touching  the  matter  litigated,  and  unless  the 
judgment  is  equally  available  to  both  parties.  It  requires  no  discus- 
sion to  demonstrate  that  a  judgment  in  the  Lewisohn  suit  against 
the  defendants  would  not  have  fixed  liability  upon  tlie  present  de- 
fendant. Hence  there  can  be  no  estoppel  under  our  law  or  under 
the  general  principles  of  jurisprudence,  because  it  is  not  mutual. 
Brigham  v.  Fayerweather,  140  Mass.  141,  415  ;  Dallinger  v.  Richard- 
son, 176  Mass.  yy,  83;  Worcester  v.  Green,  2  Pick.  (Mass.)  425, 
429;  Biddle  &  Smart  Co.  v.  Burnham,  91  Maine  578;  Moore  v. 
Albany,  98  N.  Y.  396.  "Estoppels  to  be  good  must  be  mutual." 
Litchfield  v.  Goodnow,  123  U.  S.  549,  552;  Nelson  v.  Brown,  144 
N.  Y.  384,  390.  Bigelow  could  not  have  appeared  as  of  right  and 
made  a  defense  in  that  suit.    No  judgment  can  be  regarded  as  res 


*''Old  Dominion  Copper  Min.  &c.  Cd.  v.  Lewisohn,  210  U.  S.  206,  52  L.  ed. 

1025^(1907). 

^'The  facts,  as  summarized,  relate  to  but  one  of  the  questions  considered, 
and  only  so  much  of  the  opinion  of  the  court  as  refers  to  this  question  is 
printed.  Hammond,  J.,  dissenting  on  the  merits,  concurred  on  this  point  with 
the  majority  of  the  court.  Knowlton,  C.  J.,  and  Morton,  J.,  dissenting  on  the 
merits  expressed  no  opinion  on  this  brancli  of  the  defense. 


598  JUDGMENT 

judicata  as  to  any  matter  Avhcrc  the  ri^^hts  in  the  subject  matter  arise 
out  of  mutuality,  and  not  by  succession,  unless  the  ]iarty  could,  as 
matter  of  right,  appear  and  defend,  even  though  he  may  have  knowl- 
edge of  the  suit.  Otherwise,  he  might  be  bound  by  a  judgment  as 
to  which  he  had  never  had  the  oi)portunity  to  be  heard,  which  is 
opposed  to  the  first  principles  of  justice,  Brahrook  v.  Boston  Five 
Cents  Sav.  Bank,  104  ]\Iass.  228,  2.^3.  There  is  no  privity  between 
joint  wrongdoers,  because  all  are  jointly  and  severally  liable.  Corey 
V.  Havener,  182  ]\Iass.  250;  Fcne'jf  v.  Boston  &  Maine  R.  Co.,  196 
JMass.  575,  581 ;  Pinkerton  v.  Randolph,  200  Mass.  24,  28.  There  is 
no  right  of  contribution  between  joint  w^rongdoers,  where  they  are 
in  pari  delicto  with  each  other.  ChurcJiill  v.  Holt,  127  Mass.  165. 
They  are  equally  culpable,  and  the  wrong  complained  of  results 
from  their  joint  effort.  The  right  of  recovery  over  by  a  municipality 
against  a  person  whose  WTong  created  a  defect  in  the  highway, 
Holyokc  V.  Hadley  Co.,  174  Mass.  424,  is  no  exception  to  this  rule, 
because  the  tort  committed  by  each  of  the  wrongdoers  is  diverse  in 
character,  and  rests  upon  a  different  basis  of  liability,  and  there  is  a 
right  of  indemnity  in  favor  of  the  municipality.  Lowell  v.  Glidden, 
159  ]\Iass.  317,  319.  We  are  aware  of  no  instance  of  joint  partici- 
pation in  a  common  tortious  enterprise  where  there  is  any  right  of 
contribution.  One  comprehensive  definition  of  privies  is  such  per- 
sons as  are  "privies  in  estate — as  donor  and  donee,  lessor  and  lessee 
and  joint  tenants;  or  privies  in  blood — as  heir  and  ancestor;  or 
privies  in  representation — as  executor  and  testator  or  administrator 
and  intestate ;  or  privies  in  law — where  the  law  without  privity  in 
blood  or  estate  casts  land  upon  another,  as  by  escheat."  Buckingham 
V.  Ludlum,  2)7  N.  J.  Eq.  137;  Douglass  v.  Howland,  24  Wend.  (N. 
Y.)  35,  53.  Joint  tort-feasors  come  within  none  of  the  classes  thus 
described.  The  definition  in  Greenl.  Ev.,  section  535,  adopted  by 
the  Supreme  Court  of  the  United  States,  in  Litchfield  v.  Goodnow, 
123  U.  S.  549,  551,  namely,  "Alutual  or  successive  relationship  to 
the  same  rights  of  property"  equally  fails  to  include  joint  tort- 
feasors. If  we  turn  to  the  law  of  privity  as  illustrated  in  actions 
against  partnerships  and  joint  debtors,  the  soundness  of  this  con- 
clusion is  confirmed.  It  has  been  repeatedly  decided  that  an  admin- 
istrator of  a  decedent  in  one  jurisdiction  is  not  in  privity  with  an  ad- 
ministrator of  the  same  estate  appointed  in  another  jurisdiction,  and 
that  a  judgment  against  one  such  administrator  is  not  res  judicata 
to  the  other.  Ingersoll  v.  Coram,  211  U.  S.  335,  and  cases  cited; 
Johnson  v.  Powers,  139  U.  S.  156.  In  Chase  v.  Henry,  166  Mass. 
577,  it  was  held  that  discharge  in  insolvency  in  this  commonwealth 
did  not  bar  the  debt  of  a  copartnership,  one  member  of  which  was  a 
nonresident,  although  two  were  residents  and  the  copartnership 
had  a  regular  place  of  business  here.  It  has  been  several  times  held 
that  judgment  against  one  surviving  partner  upon  a  claim  against 
the  partnership  was  not  admissible  in  evidence  against  the  executors 
of  a  deceased  partner,  although  the  existence  of  the  partnership  was 
not  disputed.  Buckingham  v.  Ludlum,  37  N.  J.  Eq.  137;  Moores'^ 
/[ppeals,  34  Pa.  St.  411 ;  Sturgess  v.  Beach,  i  Conn.  507;  Larison 
V.  Hager,  44  I'cd.  49.  The  converse,  which  is  exactly  parallel  to  the 


OLD  DOAIIXION    COPPER   IIIN.    &C.    CO.    V.    BIGELOW  599 

present  case,  namely,  that  a  jttdgment  in  favor  of  one  partner  or 
joint  and  several  debtor  will  not  avail  his  associate  in  liability,  has 
often  been  decided.  Townsend  v.  Riddle,  2  N.  H.  448 ;  McLelland 
V.  Ridgezvay,  12  Ala.  482 ;  State  Bank  v.  Robinson,  13  Ark.  214,  221 ; 
Detroit  V.  Houghton,  42  IMich.  459,  560.  It  is  difficult  to  conceive 
of  persons  more  closely  identified  with  their  common  business  than 
joint  debtors  and  partners,  and  if  judgments  against  one  do  not 
bind  his  associate,  we  do  not  see  how  persons  occupying  the  less 
intimate  relation  to  each  other,  which  Bigelow  and  Lewisohn  did, 
can  be  bound  as  privies.    See  also  Williams  v.  Bankhead,  19  Wall. 

563,  570. 

Apart  from  authority  and  on  principle  the  same  result  seems 
necessary.  Joint  tort-feasors  act  in  unison  respecting  a  common 
wrongful  enterprise.  It  is  one  of  the  penalties,  which  the  common 
law  (differing  in  this  respect  from  the  civil  law)  inflicts  upon  those 
who  jointly  engage  in  intentional  violation  of  the  rights  of  others, 
that  each  shall  be  left  to  bear  the  natural  results  of  his  conduct. 
Courts  will  not  lend  their  aid  in  adjusting  the  conflicting  claims  of 
wrongdoers  touching  their  own  turpitude. 

An  injured  party  is  given  the  right  to  pursue  his  remedy,  either 
singly  or  together,  against  those  who  thus  cause  injury,  and  may 
proceed  to  judgment  against  all  in  separate  actions.  He  is  barred 
only  by  a  satisfaction.  An  inevitable  corollary  of  these  generally 
undisputed  propositions  and  one  consonant  with  a  fundamental  sense 
of  justice  is  that  a  party  has  a  right  to  try  his  case  against  every- 
body who  has  done  him  a  wrong  by  immediate  and  direct  culpable 
action.  He  is  not  precluded  by  a  failure  against  one  alleged  joint 
wrongdoer  from  attempting  to  pursue  another.  He  is  entitled  to  his 
day  in  court  against  a  particular  adversary.  We  believe  there  are 
no  exceptions  to  this  rule  stated  in  this  form.  The  cases  where 
judgment  in  favor  of  an  active  agent  or  servant  avails  a  passive  prin- 
cipal or  master,  Portland  Gold  Min.  Co.  v.  Stratton's  Independence, 
158  Fed.  63  and  cases  cited,  or  where  the  relation  of  indemnitor  and 
indemnitee  exists.  Port  Jervis  v.  First  Nat.  Bank  of  Port  Jervis,  96 
N.  Y.  550,  do  not  constitute  exceptions  to  tliis  rule,  but  stand  on  a 
different  ground. 

For  another  reason  the  New  York  judgment  in  favor  of  Lew- 
isohn seems  not  to  be  a  bar.  The  joint  actor  with  the  defendant  was 
not  the  defendant  in  the  New  York  suit,  but  it  was  prosecuted 
against  his  executors.  If  it  be  assumed  that  there  was  a  kind  of 
privity  between  the  two  who  acted  in  concert,  that  privity  was 
broken  by  the  death  of  one.  There  is  no  privity  between  Lewisohn's 
executors  and  Bigelow.  Elva  v.  Edwards,  13  Allen  (Mass.)  48; 
Merrill  v.  New  England  Ins.  Co.,  103  Mass.  245,  249 ;  Thompson  v. 
American  Surety  Co.,  170  N.  Y.  109.  It  can  not  be  said  that  the 
plaintiff  has  elected  to  pursue  his  remedy  against  the  estate  of  Lew- 
isohn to  the  exclusion  of  his  rights  against  Bigelow.  As  between 
joint  tort-feasors  the  doctrine  of  election  has  no  application,  and 
moreover  the  plaintiff  sought  the  New  York  forum  voluntarily  only 
in  the  sense  of  being  compelled  to  go  there  that  a  court  might  acquire 
jurisdiction  of  those  defendants. 


boo  JUDGMEXT 

The  cletcriniii.ition  that  the  rchitiou  between  Lewisohn  and  Bigc- 
]o\v  was  that  of  joint  tort-feasors  respecting  a  cause  of  action 
arising  ex  deUcto  disposes  also  of  the  argument  pressed  by  the  de- 
fendant, that  Lewisohn  was  trustee,  agent  or  representative  of  Bige- 
low  to  such  an  extent  that  he  was  in  iirivity  with  him.  See  Bigelow 
V.  Old  nonunion  Copper  Mm.,  etc,  Co.,  74'N.  J.  Eq.  457.^ 

The  conclusion  is,  therefore,  that  the  matters  set  up  in  the  sup- 
plemental answers  do  not  preclude  the  plaintiff  from  continuing  tlie 
prosecution  of  the  present  suits.*'' 


CROMWELL  V.  COUNTY  OF  SAC. 

Supreme  Court  of  the  United  States,  1876 

94  U.  S.  351^ 

Field,  J.:  This  was  an  action  on  four  bonds  of  the  county  of 
Sac,  in  the  state  of  Iowa,  each  for  $1,000,  and  four  coupons  for  in- 
terest, attached  to  them,  each  for  $100.  The  bonds  were  issued  in 
i860,  and  were  made  payable  to  bearer,  in  the  city  of  New  York,  in 

*°The  prevailing  rule  is  that  a  judgment  in  favor  of  one  of  the  joint  tort 
feasors  will  not  bar  a  separate  action  against  another.  Lansing  v.  Montgom- 
ery, 2  Johns.  (N.  Y.)  382  (1807)  ;  Sprague  v.  Waitc,  36  Mass.  455  (1837); 
Atlantic  Dock  Co.  v.  New  York,  53  N.  Y.  64  (1873),  semble;  Coble  v.  Dillon, 
86  Ind.  327,  44  Am.  Rep.  308  (1882)  ;  Thotnp.wn  v.  Chicago,  St.  P.  &c.  R.  Co., 
71  Minn.  89,  73  N.  \V.  707  (1898)  ;  Three  States  Lumber  Co.  v.  Blanks,  118 
Tenn.  627,  102  S.  W.  79  (1907)  ;  Staunton  Mut.  Tel.  Co.  v.  Buchanan,  108  Va. 
810,  62  S.  E.  928  (1908),  semble;  Sutter  v.  Kansas  City,  138  Mo.  App.  105, 
119  S.  W.  1084  (1909)  ;  Louisville,  H.  &  St.  L.  R.  Co.  v.  Linton,  43  Ind.  App. 
709,  88  N.  E.  532  (1909)  ;  Nelson  v.  Illinois  Cent.  R.  Co.,  98  Miss.  295,  53  So. 
619  (1910).  Contra:  People  v.  Stephens,  51  How.  Pr.  (N.  Y.)  235  (affd.  71 
N.  Y.  527)  (1S76)  ;  Jenkins  v.  Atlantic  Coast  Line  R.  Co.,  89  S.  Car.  408, 
71  S.  E.  loio  (1911). 

"The  general  rule  that  one  many  not  have  the  benefit  of  a  judgment  as 
an  estoppel  unless  he  would  have  been  boimd  by  it  had  it  been  the  other  way, 
is  subject  to  recognized  exceptions,  one  of  which  is  that  in  actions  of  tort, 
such  as  trespass,  if  the  defendant's  responsibility  is  necessarily  dependent 
upon  the  culpability  of  another,  who  was  the  immediate  actor,  and  who,  in 
an  action  against  him  by  the  same  plaintiff  for  the  same  act,  has  been  ad- 
judged not  culpable,  the  defendant  may  have  the  benefit  of  that  judgment 
as  an  estoppel  even  though  he  would  not  have  been  bound  by  it  had  it  been 
the  other  way."  Portland  Cold  Min.  Co.  v.  Stratton's  Independence,  158  Fed. 
63  (1907)  ;  Ferrers  v.  Arden,  Cro.  Eliz.  668  (1598)  ;  Biggs  v.  Benger,  2  Ld. 
Raym.  1372  (1724);  King  v.  Chase,  15  N.  H.  9,  41  Am.  Dec.  675  (1844); 
Emery  v.  Foii-ler,  39  Maine  326,  63  Am.  Dec.  627  (1855);  IVilliams  v.  Mc- 
Grade,  13  Minn.  (Gil.  39)  46  (1868)  ;  Hill  v.  Bain,  15  R.  I.  75,  23  Atl.  44 
(1885);  Feathcrston  v.  Newburgh  &  C  Turnpike,  71  Hun  109,  24  N.  Y.  S. 
603,  54  X.  Y.  St.  71  (1893)  ;  Doremus  v.  Root,  23  Wash,  710,  63  Pac.  572,  54 
L.  R.  A.  649  ('1901)  ;  Anderson  v.  Fleming,  160  Ind.  597,  67  N.  E.  443,  66  L. 
R.  A.  119  f  1002)  ;  Anderson  v.  West  Chicago  St.  R.  Co.,  200  111.  329,  65  N.  E. 
717  0902)  ;  McCinnis  v.  Chicago  R.  I.  &  P.  R.  Co.,  200  Mo.  347,  98  S.  W.  S90 
C1906)  ;  Munt::  v.  Algiers  &  G.  S.  R.  Co.,  116  La.  235,  40  So.  688  (i9o6)  ;  Willi- 
ford  V.  Kansas  City  M.  &c.  Co.,  154  Fed.  514  (1907)  :  Logan  v.  Atlanta  &  C 
A.  Co.,  82  S.  Car.  518,  64  S.  E.  515  (1909).  Contra:  ///.  Cent.  R.  Co.  v.  Clarke, 
85  >ti';s.  691,  38  So.  97   ('1904). 

"Part  of  the  opinion  of  the  court  and  the  dissenting  opinion  are  omitted. 


CROMWELL  V.    COUNTY   OF    SAC  6oi 

the  years  1868,  1869,  1870  and  1871,  respectively,  with  annual  inter- 
est at  the  rate  of  ten  per  cent,  a  year. 

To  defeat  this  action,  the  defendant  relied  upon  the  estoppel  of 
a  judgment  rendered  in  favor  of  the  county  in  a  prior  action  brought 
by  one  Samuel  C.  Smith  upon  certain  earlier  maturing  coupons  on 
the  same  bonds,  accompanied  with  proof  that  the  plaintiff  Cromwell 
was  at  the  time  the  owner  of  the  coupons  in  that  action,  and  that 
the  action  was  prosecuted  for  his  sole  use  and  benefit. 

The  questions  presented  for  our  determination  relate  to  the  opera- 
tion of  this  judgment  as  an  estoppel  against  the  prosecution  of  the 
present  action,  and  the  admissibility  of  the  evidence  to  connect  the 
present  plaintiff  with  the  former  action  as  a  real  party  in  interest. 

In  considering  the  operation  of  this  judgment,  it  should  be  borne 
in  mind,  as  stated  by  counsel,  that  there  is  a  difference  between  the 
effect  of  a  judgment  as  a  bar  or  estoppel  against  the  prosecution  of 
a  second  action  upon  the  same  claim  or  demand,  and  its  effect  as  an 
estoppel  in  another  action  between  the  same  parties  upon  a  dif- 
ferent claim  or  cause  of  action.  In  the  former  case,  the  judgment, 
if  rendered  upon  the  merits,  constitutes  an  absolute  bar  to  a  subse- 
quent action.  It  is  a  finality  as  to  the  claim  or  demand  in  contro- 
versy, concluding  parties  and  tliose  in  privity  with  them,  not  only 
as  to  every  matter  which  was  offered  and  received  to  sustain  or 
defeat  the  claim  or  demiand,  but  as  to  any  other  admissible  matter 
which  might  have  been  offered  for  that  purpose.  Thus  for  ex- 
ample, a  judgment  rendered  upon  a  promissory  note  is  conclusive 
as  to  the  validity  of  the  instrument  and  the  amount  due  upon  it, 
although  it  be  subsecjuently  alleged  that  perfect  defenses  actually 
existed,  of  which  no  proof  was  offered,  such  as  forger}^  want  of 
consideration,  or  payment.  If  such  defenses  were  not  presented  in 
the  action,  and  established  by  competent  evidence^^,  the  subsequent 
allegation  of  their  existence  is  of  no  legal  consequence.  The  judg- 
ment is  as  conclusive,  so  far  as  future  proceedings  at  law  are  con- 
cerned, as  though  the  defenses  never  existed.  The  language,  there- 
fore, which  is  so  often  used,  that  a  judgment  estops  not  only  as  to 
every  ground  of  recovery  or  defense  actually  presented  in  the  action, 
but  also  as  to  every  ground  which  might  have  been  presented,  is 
strictly  accurate,  when  applied  to  the  demand  or  claim  in  contro- 
versy. Such  demand  or  claim,  having  passed  into  judgment,  can  not 
again  be  brought  into  litigation  between  the  parties  in  proceedings 
at  law  upon  any  ground  whatever.^- 


^*As  to  evidence  compare  Smith  v.  IVhiting,  11  Mass.  445  (1814)  ;  Estate  of 
Harrington,  147  Cal.  124,  86  Pac.  546,  109  Am.  St.  Rep.  118  (1905)  ;  Raneyjy^ 
Westlake.  216  Pa.  ■^74.  65  Atl.  807  (1907),  with  Cole  v.  Nashville,  6  Cold. 
(Tenn.)  639  (1868);  Lewis  v.  Davis,  8  Daly  (N.  Y.)  185  (1878)  ;  Alabama 
G.  S.  R.  Co.  V.  B livens,  92  Ga.  522,  17  S.  E.  836  (1893) ;  Damren  v.  American 
Light  &  Power  Co.,  95  Maine  278,  49  Atl.  1092  (1906). 

^'Ferrer's  Case,  6  Coke  7,  Cro.  Eliz.  668  (1598)  ;  Anderson  v.  Campbell,  3 
Wils.  C.  P.  304  (1772)  ;  Diichcss  of  Kingston's  Case,  20  How.  St.  Tr.  355 
(1776)  ;  Outram  v.  Morewood,  3  East  346  (1803)  ;  Stafford  v.  Clark,  2  Bingli. 
377  (1824)  ;  Wood  v.  Jackson,  8  Wend.  (N.  Y.)  9,  22  Am.  Dec.  603  (1831)  ; 
Doty  V.  Brown,  4  N.  Y.  71,  53  Am.  Dec.  350  (1850)  ;  Mervine  v.  Parker,  18 
Ala.  241  (1850);  Sawyer  v.  Woodbury,  yz  (7  Gray)  Mass.  499,  66  Am.  Dec. 


602  JUDGMENT 

r.ut  \vhcrc  the  sccmul  nclioii  botwccii  Ihc  same  parties  is  upon 
a  ditrcrciit  claim  or  dcmaiul,  tlie  jiiclj^mcnt  in  the  prior  action  oper- 
ates as  an  estoppel  only  as  to  those  matters  in  issue  or  points  contro- 
verted, upon  the  determination  of  which  the  finding  or  verdict  was 
rendered.  In  all  cases,  therefore,  where  it  is  sought  to  ai^ply  tlie 
estoppel  of  a  judgment  rendered  upon  one  cause  of  action  to  matters 
arising  in  a  suit  upon  a  ditl'erent  cause  of  action,  the  inquiry  must 
always  be  as  to  the  point  or  cjucstion  actually  litigated  and  deter- 
mined in  the  original  action,  not  what  might  have  been  thus  litigated 
and  determined.  Only  upon  such  matters  is  the  judgment  conclu- 
sive in  another  action.''-"' 

The  difference  in  the  operation  of  a  judgment  in  the  two  classes 
of  cases  mentioned  is  seen  through  all  the  leading  adjudications 
upon  tlie  doctrine  of  estoppel.  Thus  in  the  case  of  Outraiii  v.  More- 
zvood,  3  East  346,  the  defendants  were  held  estopped  from  averring 
title  to  a  mine  in  an  action  of  trespass  for  digging  out  coal  from 
it,  because  in  a  previous  action  for  a  similar  trespass,  they  had  set 
up  the  same  title,  and  it  had  been  determined  against  them.  In 
commenting  upon  a  decision  cited  in  tliat  case,  Lord  Ellenborough, 
in  his  elaborate  opmion,  said:  "It  is  not  recovery,  but  the  matter 
alleged  by  the  party,  upon  which  the  recovery  proceeds,  which  cre- 
ates the  estoppel.  The  recovery  of  itself  in  an  action  of  trespass 
is  only  a  bar  to  the  future  recovery  of  damages  for  the  same  injury ; 
but  the  estoppel  precludes  parties  and  privies  from  contending  to 
the  contrary  of  that  point  or  matter  of  fact,  which,  having  been 
once  distinctly  put  in  issue  by  them,  or  by  those  to  whom  they 


518  (1856)  ;  Hargus  v.  Goodman,  12  Ind.  629  (1859)  ;  Gray  v.  GillUan,  15  111. 
453,  60  Am.  Dec.  761  (1854)  ;  Walker  v.  Chase,  53  Maine  258  (1865)  ;  Jamaica 
Pond  Aqueduct  Corp.  v.  Chandler,  121  Mass.  I  (1876)  ;  _Sclru!an  v.  Kelly,  I23 
Pa.  St.  65,  33  Atl.  1 107  (1896)  ;  Crunert  v.  Spalding,  104  Wis!  193,  80  N.  W. 
589  (1899)  ;  IVooster  v.  Cooper,  59  N.  J.  Eq.  204,  45  Atl.  381  (1899)  ;  King  v. 
Ross,  21  R.  I.  413,  45  Atl.  146  (1899)  ;  Bacon  v.  Hunt,  72  Vt.  98,  47  Atl.  394 
(1900)  ;  Mershon  v.  Williams,  63  N.  J.  L.  398,  44  Atl.  211  (1899)  ;  Lockyer  v. 
Ferryman,  L.  R.  (1S77)  2  App.  Cas.  519;  Sly  v.  Hunt,  159  Mass.  151,  34  N.  E. 
187  (1S93)  ;  Penny  v.  British  &  American  Mortgage  Co.,  132  Ala.  357,  31  So. 
96  (1901)  ;  Allcnjf^Jjil'-ynnfinnnl  Tprt  R  Cn.,  2r>T  Pa.  579,  K\  Atl.  2>22,  88 
Am.  St.  834" (1902)  ;  Ilavjkshurst  v.  Ashury  Park,  65  N.  J.  Eq.  496,  56  Atl. 
697  (1903J  ;  McKinnon  v.  Johnson,  59  Fla.  332,  52  So.  288  (1910)  ;  Gould  y. 
Randal,  232. Pa.  612,  Ri  AtLEoo  (1911);  Mound  City  v.  Castlcman,  187  Fed. 
92  (1911)  ;  Pratt  \.  Griffin,  223  111.  349,  79  N.  E.  102  ( 1906)  ;  Blcaklcy  v. 
Barclay,  75  Kans.  462,  89  Pac.  906  (1907)  ;  Corbett  v.  Craven,  196  Mass.  319, 
82  N.  E.  Z7  (1907)  ;  People's  Trust  Co.  v-  L/iWtflr/.  ^6  Pa.  Super.  ClJlqi 
(1914).  The  principle  applies  whether  the  first  adjudication  is  in  a  court  of 
law  or  equity.  Mutual  Life  Ins.  Co.  v.  Nezvton,  50  N.  J.  L.  571,  14  Atl.  756 
(18S8)  ;  United  Oil  &  Gas  Co.  v.  Ellsworth,  43  Ind.  App.  670,  88  N.  E.  362 
(1908)  ;  Spink  v.  Philadelphia  Hydro-Electric  Co.,  24S  Pa.  143.  Oi  Atl.  609 
(1914).   But  see  Vicksbnrg  v.  tlenson,  231  U.  S.  259,  58  L.  ed.  209  (1913). 

'■•^Hibshman  v  Didlrhnn,  4  \Vattj;  rPa.^  t8^  (  i8^0  ;  Christian  v.  Penn, 
7  Ga.  434  (1849)  ;  Lentzv.  WoUnrpW'?  Pn  s;t  ^12,  i;^  Am  Dec.  569  (1851) ; 
Duncan  v.  Holcomb,  26  Ind.  378  (1866)  ;  Lindsey  v.  Danville,  46  Vt.  144 
(1873)  ;  Spurlock  v.  Missouri  Pac.  R.  Co.,  76  Wis.  67  (1882)  ;  Wiggins  Ferry 
Co.  V.  Ohio  &  M.  R.  Co.,  142  U.  S.  396,  35  L.  ed.  105S  (1892)  ;  Stokes  v. 
Foote,  172  X.  Y.  327,  65  N.  E.  176  (1902)  ;  Stroup  v.  I^epper,  69  Kans.  241,  76 
Pac.  825  (1904)  ;  Lim  Jew  v.  United  States,  196  Fed.  736  (1912)  ;  Grider  v. 
Groff,  202  Fed.  685  (1912)  ;  Chapman  v.  F'ropp,  125  Minn.  447,  147  N.  W.  442 
(1914) ;  Wliitaker  v.  Garren,  167  N.  Car.  658,  83  S.  E.  759  (1914). 


CROMWELL   V.    COUNTY   OF   SAC  603 

are  privy  in  estate  or  law,  has  been,  on  such  issue  joined,  solemnly 
found  against  them."  And  in  the  case  of  Gardner  v.  Biickhee,  3 
Cow.  (N.  Y.)  120,  it  was  held  by  the  Supreme  Court  of  New  York 
that  a  verdict  and  judgment  in  the  marine  court  of  the  city  of  New 
York,  upon  one  of  two  notes  given  upon  a  sale  of  a  vessel,  that  the 
sale  was  fraudulent,  the  vessel  being  at  the  time  unseaworthy,  were 
conclusive  upon  the  question  of  the  character  of  the  sale  in  an  action 
upon  the  other  note  between  the  same  parties  in  the  court  of  com- 
mon pleas.  The  rule  laid  down  in  the  celebrated  opinion  in  the  case 
of  the  Duchess  of  Kingston  was  cited,  and  followed:  "That  the 
judgment  of  a  court  of  concurrent  jurisdiction  directly  upon  the 
point  is  as  a  plea  at  bar,  or  as  evidence  conclusive  between  the  same 
parties  upon  the  same  matter  directly  in  question  in  another  court." 
These  cases  usually  cited  in  support  of  the  doctrine  tliat  the 
determination  of  a  question  directly  involved  in  one  action  is  con- 
clusive as  to  that  question  in  a  second  suit  between  the  same  parties 
upon  a  different  cause  of  action,  negative  the  proposition  that  the 
estoppel  can  extend  beyond  the  point  actually  litigated  and  deter- 
mined. The  argument  in  these  cases,  that  a  particular  point  was 
necessarily  involved  in  the  finding  in  the  original  action,  proceeded 
upon  the  theory  that,  if  not  thus  Involved,  the  judgment  would  be 
inoperative  as  an  estoppel. 

It  is  not  believed  that  there  are  any  cases  going  to  the  extent 
that  because  in  the  prior  action  a  different  question  from  that  actu- 
ally determined  might  have  arisen  and  been  htigated,  therefore  such 
possible  question  Is  to  be  considered  as  excluded  from  consideration 
in  a  second  action  between  the  same  parties  on  a  different  demand, 
although  loose  remarks  looking  in  that  direction  may  be  found  In 
some  opinions.  On  principle,  a  point  not  in  litigation  in  one  action 
can  not  be  received  as  conclusively  settled  In  any  subsequent  action 
upon  a  different  cause,  because  it  might  have  been  determined  in 
the  first  action. 

Various  considerations  other  than  the  actual  merits  may  govern 
a  party  in  bringing  forward  grounds  of  recovery  or  defense  In  one 
action,  which  may  not  exist  In  another  action  upon  a  different  de- 
mand, such  as  the  smallness  of  the  amount  or  the  value  of  the  prop- 
erty In  controversy,  the  difficulty  of  obtaining  the  necessary  evidence, 
the  expense  of  the  litigation  and  his  own  situation  at  the  time.  A 
party  acting  upon  considerations  like  these  ought  not  to  be  precluded 
from  contesting  in  a  subsequent  action  other  demands  arising  out 
of  the  same  transaction.  A  judgment  by  default  only  admits  for 
the  purpose  of  the  action  the  legality  of  the  demand  or  claim  In 
suit ;  It  does  not  make  the  allegations  of  the  declaration  or  complaint 
evidence  in  an  action  upon  a  different  claim.^^  The  declaration  may 
contain  different  statements  of  the  cause  of  action  in  different  counts. 


_""That  a  judgment  by  default  has  an  operation  by  estoppel  can  not  be 
denied ;  but  the  ground  and  extent  of  that  estoppel  must,  in  my  opinion,  be 
found  on  the  face  of  the  judgment  itself,  and  can  not  be  inferred  or  deduced 
from  the  pleading  of  the  party  who  has  obtained  the  judgment,  when  the  de- 


()04  JUDGMENT 

Tt  could  hartlly  be  prctcmlcd  that  a  jiKl.c;:nicnt  by  default  in  such 
a  case  would  make  the  several  statements  evidence  in  any  otlier  pro- 
cecdinjj.  Boylcau  v.  Kittrnt,  2  I'^xch.  665,  681 ;  Hughes  v.  Alexander, 
5  Ducr  493. 

If.  now,  \vc  consider  the  main  question  presented  for  our  deter- 
mination by  the  ligh.t  of  the  views  thus  expressed  and  the  authorities 
cited,  its  solution  will  not  be  difficult.  It  appears  from  the  findings 
in  the  original  action  of  Smith,  that  the  county  of  Sac,  by  a  vote 
of  its  people,  authorized  the  issue  of  bonds  to  the  amount  of  ,$io,ooo, 
for  the  erection  of  a  court  house ;  and  bonds  to  that  amount  were 
issued  by  tlie  county  judge,  and  delivered  to  one  Meserey,  with 
whom  he  had  made  a  contract  for  the  erection  of  the  court  house ; 
that  immediately  upon  receipt  of  the  bonds  the  contractor  gave  one 
of  them  as  a  gratuity  to  the  county  judge;  and  that  the  court  house 
was  never  constructed  by  the  contractor,  or  by  any  other  person 
pursuant  to  the  contract.  It  also  appears  that  the  plaintiff  had  be- 
come, before  their  maturity,  the  holder  of  twenty-five  coupons, 
which  had  been  attached  to  the  bonds ;  but  there  was  no  finding  that 
he  had  ever  given  any  value  for  them.  The  court  below  held,  upon 
these  findings,  that  the  bonds  were  void  as  against  the  county,  and 
gave  judgment  accordingly.  The  case  coming  here  on  writ  of  error, 
this  court  held  that  the  facts  disclosed  by  the  findings  were  sufficient 
evidence  of  fraud  and  illegality  in  the  inception  of  the  bonds  to  call 
upon  tlie  holder  to  show  that  he  had  given  value  for  the  coupons ; 
and,  not  having  done  so,  the  judgment  was  affirmed.  Reading  the 
record  of  tlie  lower  court,  it  must  be  considered  that  the  matters 
adjudged  in  that  case  were  these :  that  the  bonds  w^ere  void  as  against 
the  county  in  the  hands  of  parties  who  did  not  acquire  them  before 
maturity  and  give  value  for  them,  and  that  the  plaintiff,  not  having 
proved  that  he  gave  such  value,  was  not  entitled  to  recover  upon 
the  coupons.  \Miatever  the  illegality  or  fraud  there  was  in  the  issue 
and  delivery  to  the  contractor  of  the  bonds  affected  equally  the  cou- 
pons for  interest  attached  to  them.  The  finding  and  judgment  upon 
the  invalidity  of  the  bonds,  as  against  the  county,  must  be  held  to 
estop  the  plaintiff  here  from  averring  to  the  contrary.  But  as  the 
bonds  were  negotiable  instruments,  and  their  issue  was  authorized 
by  a  vote  of  the  county,  and  they  recite  on  their  face  a  compliance 
with  the  law  providing  for  their  issue,  they  would  be  held  as  valid 
obligations  against  the  county  in  the  hands  of  a  bona  fide  holder 
taking  them  for  value  before  maturity,  according  to  repeated  de- 
cisions of  this  court  upon  the  character  of  such  obligations.  If, 
therefore,  tlie  plaintiff  received  the  bond  and  coupons  in  suit  before 
maturity  for  value,  as  he  offered  to  prove,  he  should  have  been 
permitted  to  show  that  fact.  There  was  nothing  adjudged  in  the 
former  action  in  the  finding  that  the  plaintiff  had  not  made  such 
proof  in  that  case  which  can  preclude  the  present  plaintiff  from 

fendant  has  said  nothing,  and  done  nothing:  and  has  merely  allowed  the  judg- 
ment to  go  by  default."  Per  Fitz.  Gibbon,  L.  J.,  in  Irish  Land  Commission  v. 
Ryan,  L.  R.  (1900),  2  Ir.  565;  Frost  v.  Koon,  30  N.  Y.  428  (1864)  ;  Hanliam  v. 
Sherman,  114  Mass.  19  (1873)  ;  Lazvson  v.  Conaway,  37  W.  Va.  159,  16  S.  E. 
564,  18  L.  R.  A.  627,  38  Am.  St.  17  (1892). 


'  CROMWELL  V.    COUNTY   OF   SAC  605 

making  such  proof  here.  The  fact  that  a  party  may  not  have  shown 
that  he  gave  value  for  one  bond  or  coupon  is  not  even  presumptive, 
much  less  conclusive,  evidence  that  he  may  not  have  given  value  for 
another  and  different  bond  or  coupon.  The  exclusion  of  the  evi- 
dence offered  by  the  plaintiff  was  erroneous,  and  for  the  ruling  of 
the  court  in  that  respect  the  judgment  must  be  reversed  and  a  new 
trial  had.^* 

Judgment  reversed. 

Clifford,  J.,  dissented. 


^^Accord:  Neshit  v.  Riverside  Independent  Dist.,  144  U.  S.  610,  12  Sup.  Ct. 
746,  36  L.  ed.  562  (1892)  ;  Crandall  v.  Gallup,  12  Conn.  365  (1837)  ;  Russell 
V.  Place,  94  U.  S.  606,  24  L.  ed.  214  (1876)  ;  Watts  v.  JVatts,  160  Mass.  464, 
36  N.  E.  479  (1894) ;  Kapp  y.  Shields,  17  Pa.  Super.  Ct.  ^2^(1901)  ;  Callan  v. 
Anderson,  131  Ala.  22S,  31  So.  427  (1901);  Stokes  v.' Poole,  172  N.  Y.  327, 
65  N.  E.  176  (1902)  ;  Hartman  v.  Pittsburgh  Inclined  Plane  Co.,  23  Pa.  Super. 
Ct.  360  (1903)  ;  Flarrison  v.  Remington  Paper  Co.,  140  I'ed.  385,  72^.  C.  A. 
405,  3  L.  R.  A.  (N.  S.)  954  (1905)  -^Northern  P.  R.  Co.  v.  Slaight,  20S  U.  S. 
122,  51  L.  ed.  738  (1907)  ;  Virginia-Carolina  Chemical  Co.  v.  Kirven,  215 
U.  S.  252,  54  L.  ed.  179  (1909);  United  States  v.  Naldrett,  214  Fed.  895 
(1914).  "Only  material,  relevant  and  necessary  facts  decided  in  a  former 
action  are  conclusively  determined  thereby.  The  judgment  does  not  operate 
as  an  estoppel  as  to  immaterial  or  imessential  facts,  even  though  put  in  issue 
by  the  pleadings  and  directly  decided."  Stannard  v.  Hiihhell,  122,  N.  Y.  520, 
25  N.  E.  1084  (1890);  Geneva  N.  Bk.  v.  Independent  School  Dist.,  25  Fed. 
629  (18S5)  ;  Unglish  v.  Marvin,  128  N.  Y.  380,  28  N.  E.  634  (1891) ;  Taylor  v. 
Hutchinson,  61  N.  J.  L.  440,  39  Atl.  664  (1898)  ;  Burlcn  v.  Shannon,  99  Mass. 
200,  96  Am.  Dec.  733  (1868).  Where  a  judgment  in  a  former  suit  is  relied  on 
as  conclusive,  it  may  be  shown  by  evidence  aliunde  not  inconsistent  with  the 
record  that  the  particular  point  was  not  adjudicated,  if  in  law  the  judgment 
could  have  been  rendered  on  any  other  point.  Seddon  V.  Tiitop,  6  T.  R.  607 
(1796)  ;  Packet  Co.  v.  Sickles,  72  U.  S.  580  (1866)  ;  Colemqn\s  Appeal.  62 
Pa.  St.  252  (1869)  ;  Follansbee  v.  JValker.  7 A  Pa.  St.  jo6  7i87.^')  ;  Lewis  v. 
Ocean  N.  P.  Co.,  125  N.  Y.  341,  26  N.  E.  301  (1891)  ;  SnsQuehanna  Miit.  Eire 
Co.  v.  Mardorf.  1^2  Pa.  22^^25  Atl.  234  (1892);  Nashua  &  L.  R.  Corp.  v 
Boston  &  L.  R.  Corp.,  i^Mass.  222,  41  N.  E.  268,  49  Am.  St.  454  (1895)  ', 
Er.ibdcn  v.  Lisherncss,  89  Maine  578,  36  Atl.  iioi,  56  Am.  St.  442  (1897); 
Pctmrhnkpy  v  Pnrkcr,  33  Pa.  Super.  Ct.  4S8  (1Q07):  Clark  v.  Scovill,  19S 
N._Y.  279,  91  N.  E.  800  (1910).  In  Bigelow  V.  Windsor,  67  Mass.  299  (1854), 
it  is  said  by  Shaw,  C.  J.:  "To  ascertain  whether  a  past  judgment  is  a  bar  to 
another  suit,  we  are  to  consider,  first,  whether  the  subject-matter  of  legal 
controversy,  which  is  proposed  to  be  brought  before  any  court  for  adjudica- 
tion, has  been  drav/n  in  question,  and  within  the  issue  of  a  former  judicial 
proceeding  which  has  terminated  in  a  regular  judgment  on  the  merits,  so  that 
the  whole  question  may  have  been  detennined  by  that  adjudication;  secondly, 
whether  the  former  litigation  was  between  the  same  parties,  in  the  same  right 
or  capacity  litigating  in  the  subsequent  suit,  or  their  privies  respectively, 
claiming  through  or  under  them,  and  bound  and  estopped  by  that  which  would 
bind  and  estop  those  parties,  and  thirdly,  whether  the  former  adjudication 
was  had  before  a  court  of  competent  jurisdiction  to  hear  and  decide  on  the 
whole  matter  of  controversy,  embraced  in  the  subsequent  suit." 

In  Mershon  v.  Williams,  63  N.  J.  L.  401,  44  Atl.  211  (1899),  it  is  said: 
"A  matter  is  not  res  judicata  unless  there  be  (i)  identity  of  the  thing  sued 
for,  (2)  of  the  cause  of  action,  (3)  of  the  persons  and  parties,  (4)  and  of  the 
quality  of  the  persons  for  and  against  whom  the  claim  is  made."  Bouv.  Law 
Die.  tit.  res  judicata;  Bens  v.  Hines,  3  Kans.  390  (1866).  As  to  the  last  two, 
they  may  be  admitted.  But  as  to  the  first  two,  it  has  been  pointed  out  the 
decisions  frequently  fail  to  observe  the  difference  between  a  judgment  set  up 
as  a  bar,  when  there  must  be  identity  in  the  cause  of  action,  and  a  judgment 
offered  as  evidence  of  a  particular  question  when  all  that  is  necessary  is  that 
the  issue  raised  in  the  second  suit  must  be  identical  with  the  issue  in  the 


6o6  JUDGMENT 

ROBINSON  V.  ROBINSON 
Court  of  King's  Bench,  1603 

Cro.  Joe.  15'° 

Debt,  as  executor  of  J.  S.  The  defendant  pleaded  quod  auter- 
foit  he  brought  an  action  as  administrator  of  J.  S.  for  this  debt, 
and  was  therein  barred;  and  prayed  judgment,  whether  the  present 
action  was  maintainable.  The  truth  was,  that  the  plaintiff  and 
another  were  made  executors,  and  he,  not  knowing  thereof,  took 
out  administration,  and  brought  debt  as  administrator;  to  which 
action  it  was  pleaded  in  abatement,  that  another  was  made  executor 
who  had  proved  the  will  and  administered;  and  upon  this  plea  he 
was  barred.  Having  now  proved  the  will,  and  the  other  executor 
being  dead,  he  brought  the  present  action  as  executor ;  and  the  de- 
fendant pleaded  against  him  the  former  bar. 

The  Court  adjudged  tliat  it  was  no  bar;  for  although  once  a 
bar  in  a  personal  action  is  a  bar  perpetual,  that  is  to  be  understood 
when  it  is  a  bar  to  the  right,  but  here  it  was  not  any  bar;  but  by 
tlie  misconceiving  of  his  action,  the  action  abated,  wherefore  it  is 
not  any  bar  in  a  new  action.  And  it  was  adjudged  accordingly .^^ 


WILBUR  V.  GILMORE 
Supreme  Judicial  Court  of  Massachusetts,  1838 

38  Mass.  250 

Trespass  quare  clausum.  The  action  was  submitted  to  referees 
under  a  rule  of  court.  They  awarded  to  the  plaintiff  the  sum  of  $5, 
as  the  actual  value  of  wood  and  timber  cut  and  carried  away  by  the 
defendant,  and  submitted  to  the  determination  of  the  court  the  legal 
questions  arising  in  the  case. 

first.  Freeman  on  Judgments  (4th  edj,  §§  252-256;  Black  on  Judgments  (2d 
ed.),  §§  610,  611,  23  Cyc.  1298.  Ferhinger  v.  F.  H.  Martin  Drug  Co.,  56  Colo. 
445,  138  Pac.  1107  (1914)  ;  Chicago  Terminal  R.  Co.  v.  U'itisloiv,  216  111.  166,  74 
N.  E.  815  (1905) ;  Robinson  &  Co.  v.  Marr,  181  111.  App.  605  (1913)  ;  Coyle 
V.  Due,  149  N.  W.  122,  28  N.  Dak.  400  (1914)- 

"S.  C.  Robinson's  Case,  5  Coke  33,  where  the  earlier  cases  are  referred  to. 

"Accord:  ^"'!»'y  v  Tii<:j<r_a)ice  Co.  of  Pcnnsylvq}iiaj_i2  Pa.  St.  391 
(1849)  ;  Jordan  V.  Sci'fcrt,  126  Mass.  25  (1878)  ;  777// v.  Huckabce,  70  Ala.  183 
(l88i)  ;  Atkins  v.  Anderson,  63  Iowa  739,  I9  N-  W.  323  (1884)  ;  Garrett  v. 
Greenu-cll,  92  Mo.  120,  4  S.  W.  441  (18S7)  ;  Jerico  V.  Underhill,  67  Vt.  85, 
30  All.  690,  48  Am.  St.  804  (1894)  ;  In  re  IVrislcy,  126  Mich.  109,  85  N.  W. 
456  (1901);  Succession  of  Jones,  120  La.  986,  45  So.  965  (1908);  Lyons  v. 
Hammond  Elevator  Co.,  139  111.  App.  495  (1908).  Hence,  where  a  foreign 
corporation  fails  in  an  action  because  it  has  not  registered  in  compliance 
with  a  state  law,  it  is  not  debarred  from  bringing  a  second  action  after  com- 
plying with  the  law.  Pittshurgh  Construction  Co.  V.  Westside  Belt  R.,  227 
Pa.  90,  75  Atl.  1029  (1910).  And  a  judgment  given  because  of  misjoinder  or 


WILBUR   V.    GILMORE  607 

The  trespass  was  committed  in  the  Ufetime  of  the  plaintiff's 
testator.  In  the  year  1835,  the  plaintiff  commenced  a  suit  against 
tlie  defendant  for  the  same  cause  of  action.  To  that  suit  there  was 
a  general  demurrer  and  joinder  in  the  court  of  common  pleas,  and 
judgment  was  there  rendered  that  the  declaration  was  bad  and  that 
the  defendant  recover  his  costs.  The  defendant  insisted  that  those 
proceedings  were  a  bar  to  tlie  present  action.^^ 

Morton,  J. :  The  general  rule  undoubtedly  is,  that  the  judgment 
in  one  action  shall  bar  all  other  suits  between  the  same 'parties  and 
for  the  same  cause  of  action.  Interest  republicae  ut  sit  finis  litium. 
But  this  rule  is  limited  to  judgments  rendered  on  the  merits.  If 
the  plaintiff  be  nonsuit  for  want  of  proof,  or  because  his  allegata 
and  probata  do  not  agree,  or  for  any  other  cause,  he  may  commence 
another  action,  i  Chitty  PI.  (5th  ed.)  227;  Gould  PI.  478.  Even 
a  judgment  of  nonsuit  on  the  merits,  or  on  an  agreed  statement 
of  facts,  has  been  holden  to  be  no  bar  to  another  action.  Knox  v. 
Waldoborongh,  5  Greenl.  (Maine)  185;  Bridge  v.  Sumner,  i  Pick. 
(Mass.)  371.^^  So  if  the  plaintiff  mistake  the  form  of  his  action,  as 
if  he  bring  trespass  instead  of  trover,  and  his  writ  be  adjudged  bad 
on  demurrer,  the  judgment  will  not  bar  an  action  of  trover,  i 
Chitty  Pl._  (5th  ed.)  227;  Gould  PI.  478,  section  6.  So  if  the  plaintiff 
mistake  his  cause  of  action  and  the  defendant  demur  and  have  judg- 
ment, this  will  not  preclude  the  plaintiff  from  commencing  a  fresh 
action  correctly  setting  forth  the  right  cause.  So  also  if  the  declara- 
tion be  demurred  to,  or  a  bad  plea  be  pleaded  and  demurred  to,  and 
a  judgment  be  rendered  against  the  plaintiff  for  the  insufficiency  of 
his  declaration,  it  will  not  estop  the  plaintiff  from  bringing  another 
action  to  enforce  the  same  right;  because  the  case  as  stated  in  the 
last  declaration  was  not  tried  in  the  first.    In  all  these  cases,  if 


nonjoinder  of  parties  or  because  of  want  of  capacity  in  a  party  to  sue  or  be 
sued  establishes  nothing  but  such  defect  or  incapacity  and  will  not  debar  a 
subsequent  suit  where  such  objection  does  not  exist.  Harris  v.  Columbia 
Water  &  Light  Co.,  114  Tenn.  328,  85  S.  W.  897  (1904). 

_  ^'The  arguments  of  counsel  and  part  of  the  opinion  of  the  court  are 
omitted. 

^^"A  nonsuit  is  but  like  blowing  out  a  candle,  which  a  man  at  his 
own  pleasure  lights  again."  Clapp  v.  Thomas,  87  Mass.  158  (1862),  citing 
March  on  Arbitrements,  215.  Such  a  judgment  is  not  final  upon  the  merits. 
Daggett  v.  Robins,  2  Blackf.  (Ind.)  415,  21  Am.  Dec.  7S2  (1831)  ;  Brintnall 
V.  Foster,  7  Wend.  (N.  Y.)  104  (1831)  ;  Bond  v.  McNider,  3  Ired.  (25  N. 
Car.)  440  (1843)  ;  Foster  v.  Wells,  4  Tex.  loi  (1849)  ;  Fisk  v.  Parker,  14  La. 
Ann.  491  (1859)  ;  Blair  v.  McLean.  2^  Pa.  77  (18^!  Holland  v.  Hatch,  15 
Ohio  St.  464  (1864);  Beckett  v.  Stone,  60  N.  ].~C7~23,  36  Atl.  880  (1897); 
Honsinger  v.  Union  Carriage  &c.  Co.,  175  N.  Y.  229,  67  N.  E.  436  (1903)  ; 
Deneen  v.  Houghton  County  St.  R.  Co.,  150  Mich.  235,  113  N.  W.  1126  (1907)  ; 
Grats  V.  Parker,  137  Wis.  104,  118  N.  W.  637  (1908)  ;  Zeller  v.  Ranson,  140 
Mo.  App.  220,  123  S.  W.  1016  (1909);  Buchanan  v.  James,  134  Ga.  475  68 
S.  E.  72  (1910).  Contra:  Ordway  v.  Boston  &  M.  R.  Co.,  69  N.  H.  429  43 
Atl.  243  (1899)  ;  Clow  V.  West,  2,7  Nev.  267,  L.  R.  A.  1916A,  696n,  142  Pac. 
226  (1914)  ;  McGiiire  v.  Bryant  Lumber  and  Shingle  Mill  Co.,  53  Wash.  425, 
102  Pac.  237  (1909)  ;  Lezvis  v.  Superior  Court  of  Butte  County,  11  Cal.  App! 
483,  105  Pac.  763  (1909).  The  same  rule  applies  where  the  dismissal  of  an 
action  is  equivalent  to  a  nonsuit.  Woods  v.  Lindwall,  48  Fed.  62  (1891)  •  Mc- 
pherson V.  Sivift,  27  S.  Dak.  296,  130  N.  W.  768  (1911)  ;  County  of  Morrison 
V.  Lyonburg,  124  Minn.  495,  145  N.  W.  380  (1914). 


6oS  JUDGMENT 

the  defendant  plead  tlic  former  judgment  in  bar,  the  plauitiff  may 
reply  tliat  it  was  not  obtained  on  the  merits,  i  Chitty  PI.  (5th  ed.) 
2J7;  Gould  n.  478,  section  45;  Vin.  Abr.  Judgment  (Q.  4) ;  Lam- 
/>(•«  V.  Kcilgc^'-''",  I  IMod.  207.  In  this  last  case,  North,  C.  J.,  says: 
"There  is  no  question  but  that  if  a  man  mistakes  his  declaration  and 
the  defendant  demurs,  the  plaintiff  may  set  it  right  in  a  second 
action." 

It  is  apparent  from  the  record  that  the  former  judgment  between 
these  parties  was  rendered  ui)on  the  insufficiency  of  the  declaration 
and  not  upon  the  merits  of  tlie  case,  and  therefore  can  be  no  bar  to 
the  present  action."* 


'■'A  judcrment  on  demurrer,  if  upon  the  merits,  is,  in  effect,  as  conclusive 
as  if  established  bv  evidence  submitted  to  a  court  or  jury.  Lampcn  v.  Kcdge- 
1CW.  I  Mod.  207  (167=;);  Bonchand  v.  Bias,  3  Denio  (N.  Y.)  239  (1846); 
Rohnison  V.  Ilon'ard,  5  Cal.  428  (iSs-^)  ;  Vanlandingham  V.  Ryan,  17  HI-  25 
(iS^O  ;  Aurora  v.  West,  7  Wall.  (U.  S.)  82,  19  L.  ed.  42  (1868)  ;  Woolley  v. 
LouisviUc  BankUiq  Co..  81  Ky.  527,  5  Kv.  L.  562  (1883)  ;  Coney  v.  Harney, 
SZ  N.  J.  L.  53,  20  Atl.  736  (1891) ;  Lutterell  v.  Reynolds,  63  Ark.  254,  37  S.  W. 
lo;i  (1896^;  Trahior  v.  Maverick  T.  Co.,  92  Nebr.  821,  139  N.  W.  C66  (1913)- 
But  a  demurrer  based  on  fonnal  and  technical  defects,  or,  Avhich  goes  to  the 
sufficiency  of  tlie  complaint  in  point  of  form,_  while  conclusive  upon  the 
point  determined  is  not  conclusive  upon  the  merits.  Gilman  v.  Rives,  10  Pet. 
(U.  S.)  298,  9  L.  ed.  432  (1836);  Gerrish  v.  Praff,  6  Minn.  (Gil.  14)  53 
(1861);  Birch  V.  Funk,  2  Met.  (Kv.)  544  (18.-9)  ;  StozvcH  V.  Chamberlain,  60 
N.  Y.  272  (1875)  ;  Detrick  v.  Sharrar,  95  ^^  ^t.\2i  (1880)  ;  Kirsch  v.  Kirsch, 
in  Cal.  56,  46'Pac".  164  '(i'i()6)-rrerre' Haufe  &■  I.  R.  Co.  v.  State,  159  Ind. 
45S,  65  N.  E.  401  (1902)  ;  Duke  v.  Postal  Tel.  Cable  Co.,  71  S.  Car.  95,  50 
S.  E.  675  (1904).  A  judgment  is  not  available  as  an  estoppel  unless  upon  the 
merits,  that  is,  "When  it  amounts  to  a  declaration  of  the  law  as  to  the 
respective  rights  and  duties  of  the  parties,  based  upon  the  ultimate  fact  or 
state  of  facts  disclosed  by  the  pleadings  and  evidence  and  upon  which  the 
right  of  recovery  depends,  irrespective  of  formal,  technical  or  dilatory  objec- 
tions or  contentions."  Black  on  Judgments,  §  694-  Compare  (on  the  merits) 
Livennore  V.  Herschell,  3  Pick.  (Mass.)  33  (1825)  ;  Stafford  v.  Clark,  i  Car. 
&  P.  403  (1824)  ;  Hamilton  B.  Assn.  V.  Reynolds,  5  Duer  671,  12  N.  Y.  Super. 
Ct.  671  (1856)  ;  FollansbrP  v.  Walker  lA  Pn  St  -^oo  (1873)  ;  Davie  v.  Davis, 
108  N.  Car.  501,  13  S.  E.  240,  23  Am.  St.  71  (1891) ;  BcsecJier  Y.  .Ehyya  176 
Pa.  St.  23,  34  Atl.  926  (1896)  ;  Lusk  v.  Chicago,  211  111.  183,  71  N.  E.  878 
(T904Tr7»  re  Ward's  Estate,  152  Mich.  218,  116  N.  W.  23  (1908)  ;  Everett 
V.  Williams,  152  N.  Car.  117,  67  S.  E.  265  (1910),  with  (not  on  the  merits) 
Hitchin  V.  Campbell,  2  Wm.  Bl.  827  (1771)  ;  Leonard  v.  LcoaflrdUl-JWattsjS: 
S  (Pa,)  342  (1841)  ;  Carmonv  v.  Hoobeji^S,  Pa,  St.  3a5-Ci847)  ;  Brackett  v. 
fTmfiT^o  N.  H.  257  (1850);  Hurst  v.  Means,  2  Sneed  (Tenn.)  546  (1855)  ; 
Correia  V.  Supreme  Lodge,  218  :Mass.  305,  105  N.  E.  977  (1914)  ;  Witcher  v. 
Oldham,  4  Sneed  (Tenn.)  220  (1856)  ;  Gage  v.  Holmes,  78  Mass.  (12  Gray) 
428  (1859)  ;  Reynolds  v.  Lincoln,  71  Cal.  183,  9  Pac.  176,  12  Pac.  449  (1886)  ; 
IJAruilryvJ^oJjjuan,  T44  Pa.  St.  489,  22  Atl.  919  (1891)  ;  Meredith  Mechanic 
Assn7v7~^ierican  Twist  Drill  Co.,  67  N.  H.  450,  39  Atl.  330  (1893)  ;  Huffman 
V.  Knight,  36  Ore.  581,  60  Pac.  207  (1900);  Reid  v.  Caldwell,  114  Ga.  676, 
40  S.  E.  712  (1901)  ;  Johnson  v.  Amberson,  140  Ala.  342,  37  So.  273  (1903)  ; 
Chicago  Traction  Co.  v.  Winslow,  216  III.  166,  74  N.  E.  815  (1905)  :  Mulcahy 
V.  Dicudoune,  103  Minn.  352,  115  N.  W.  636  (1908) ;  Conant  v.  Boston  Cham- 
ber of  Commerce,  201  Afass.  479,  87  N.  E.  906  (1909)  ;  Clark  v.  Scovill,  198  N. 
Y.  279,  91  X.  E.  800  (1910)  ;  McDonald  v.  Hygcnic  Ice  Co.,  148  App.  Div. 
(N.  Y.)  539  132  N.  Y.  S.  857  ;  Barrentine  v.  Henry  Wrape  Co.,  II3  Ark.  196,  167 
S.  W.  1115  (1914);  Bax)er  v.  Buchhoh-Hill  E.  Transp.  Co.,  227  U.  S.  637 
57  L.  ed.  681  (1913);  Means  v.  Hoar,  no  Maine  409,  86  Atl.  772  (1913)  ; 
Smith  V.  ArjHsirong,  125  :Minn.  59,  145  N.  W.  617  (1914)  ;  Epstein  v.  Soskin, 
85  Misc.  194,  14S  N.  Y.  S.  323  C1914).  An  infant,  prevailing  on  the  plea  of 
infanc\',  in  an  action  on  a  promissory  note,  given  by  him  for  a  chattel  which 


LITCHFIELD   V.    GOODNOW  609 

LITCHFIELD  v.  GOODNOW 

Supreme  Court  of  the  United  States,  1887 

123  U.  S.  549 

This  suit  was  brought  by  Edward  K.  Goodnow,  assignee  of  the 
Iowa  Homestead  Company,  in  his  hfetime,  against  Grace  H.  Litch- 
field, in  her  Hfetime,  to  recover  the  amount  of  taxes  for  the  years 
1864  to  1 87 1,  both  inclusive,  paid  by  the  Homestead  Company  on 
certain  tracts  of  Des  Moines  river  lands  held  and  owned  by  her,  by 
and  through  conveyances  from  the  Des  Moines  Navigation  and 
Railroad  Company.  For  a  general  statement  of  the  facts  reference 
is  made  to  Stryker  v.  Crane,  123  U.  S.  527.  The  taxes  were  paid  be- 
fore the  decree  in  Homestead  Co.  v.  Valley  R.  Co.,  17  Wall,  (U.  S.) 
153,  and  the  assignment  was  made  to  Goodnow  afterwards.  As  de- 
fenses to  the  action,  the  prior  adjudication  in  that  case  was  pleaded 
in  bar,  and  also  the  statute  of  limitations  based  on  the  decision  as 
to  title  in  Wolcott  v.  Des  Moines  Co.,  5  Wall.  (U.  S.)  681,  the  same 
as  in  Stryker  v.  Crane. 

Both  these  defenses  were  overruled  by  the  Supreme  Court  of  the 
state,  and  judgment  was  entered  in  that  court  for  the  amount  of 
taxes  paid  and  interest.  Goodnozv  v.  Litchfield,  63  Iowa  275.  The 
defendant  brought  error.^° 

Waite,  C.  J. :  The  defense  of  prior  adjudication  is  disposed  of 
by  the  fact  that  Mrs.  Litchfield  was  not  a  party  to  the  suit  in  which 
the  adjudication  relied  on  was  had.  At  the  time  of  the  commence- 
ment of  the  suit  she  was  the  owner  of  her  lands,  and  they  were  de- 
scribed in  the  bill,  but  neither  she  or  any  one  who  represented  her 
title  was  named  as  a  defendant.  She  interested  herself  in  securing 
a  favorable  decision  of  the  question  involved  as  far  as  they  were 
applicable  to  her  own  interests,  and  paid  part  of  the  expenses ;  but 
there  was  nothing  to  bind  her  by  the  decision.^^  If  it  had  been  ad- 
he  had  obtained  by  fraud  and  refused  to  deliver  on  demand,  was  held  liable 
in  an  action  of  tort  for  the  conversion  of  the  chattel.  Walker  v.  Davis,  67 
Mass.  (i  Gray)  506  (1854).  But  where  a  plaintiff  has  an  election  either  to 
sue  on  an  express  contract  or  to  treat  that  contract  as  rescinded  and  to  sue  on 
an  implied  contract,  then,  when  the  election  has  been  made  and  the  suit  pro- 
ceeds to  judgment  on  the  merits,  such  judgment  is  a  bar  to  an  action  upon 
the  other  theory.  Macder  v.  Wexler,  98  N.  Y.  App.  Div.  68  (1904).  So  also, 
where  there  is  an  election  between  tort  and  contract,  Burnett  v.  Smith,  70 
Mass.  C1855)  ;  Roberts  v.  Moss,  32  Ky.  L.  R.  525  (1907). 

*"The  statement  of  facts  is  from  the  opinion  of  the  court. 

*^But  compare:  Weld  v.  Clarke,  209  Mass.  9,  95  N.  E.  651  (1911)  ;  Hos- 
_tctt_er  V.  Pittsburgh,  I07  Pa.  St.  410.  (1884)  ;  Burns  v.  Gavin,  118  Ind.  320,  20 
N.  E.  799  ( !»«»;•  Koby  V.  hggers,' 130  Ind.  415,  29  N.  E.  365  (1891)  ; 
Lightcap  v.  Bradley,  186  III.  510,  58  N.  E.  221  (1900)  ;  Confectioners 
Mach.  &c.  Co.  V.  Racine  Engine  &c.  Co.,  163  Fed.  914  (1908)  ;  Ramsey  v. 
Wilson,  52  Wash,  in,  100  Pac.  177  (1909)  ;  Lambcrton  v.  Dinsmore,  75  N.  H. 
574,  78  Atl.  620  (1910)  ;  Ward  v.  Clendenning,  245  111.  206,  91  N.  fe.  1028 
(1910)  ;  Bemis  Car  Box  Co.  v.  /.  G.  Brill  Co.,  200  Fed.  749  (1912)  ;  Heavrin 
V.  Lack  Malleable  Iron  Co.,  153  Ky.  329,  155  S.  W.  729  (1913)  ;  Singer  Mfg. 
Co.  V.  Cramer,  109  Fed.  652  (1901). 

39 — Civ.  Prog. 


6lO  JUDGMENT 

verse  to  her  interest,  no  decree  could  have  been  entered  agahist  her 
personally  cither  for  the  lands  or  the  taxes.  Her  lands  were  entirely 
separate  and  distinct  from  those  of  the  actual  parties.  A  decree  in 
favor  of  or  ajj^ainst  them  and  their  title  was  in  no  legal  sense  a  decree 
in  favor  of  or  against  her.  She  was  indirectly  interested  in  the  re- 
sult, but  not  directly.  As  the  questions  alTecting  her  own  title  and 
her  own  liability  for  taxes  were  similar  to  those  involved  in  the  suit, 
the  decision  could  be  used  as  a  judicial  precedent  in  a  proceeding 
against  her,  but  not  as  a  judgment  binding  on  her  and  conclusive  as 
to  her  rights.  Her  rights  were  similar  to,  but  not  identical  with, 
those  of  the  persons  who  were  actually  parties  to  the  litigation. 

Greenleaf,  in  his  Treatise  on  the  Law  of  Evidence,  vol.  i,  section 
523,  states  the  rule  applicable  to  this  class  of  cases  tints:  "Under 
the  term  parties  in  this  connection,  the  law  includes  all  who  are 
directly  interested  in  the  subject  xnatter,  and  had  a  right  to  make  a 
defense,  or  to  control  the  proceedings,  and  to  appeal  from  the  judg- 
ment. This  right  involves  also  the  right  to  adduce  testimony,  and 
to  cross-examine  the  witnesses  adduced  on  the  other  side.  Persons 
not  having  these  rights  are  regarded  as  strangers  to  the  cause.  But 
to  give  full  effect  to  the  principle  by  which  parties  are  held  bound 
by  a  judgment,  all  persons  who  are  represented  by  the  parties  and 
claim  imder  them,  or  in  privity  with  them,  are  equally  concluded  by 
the  same  proceedings.  We  have  already  seen  that  the  term  privity 
denotes  mutual  or  successive  relationship  to  the  same  rights  of  prop- 
erty. The  ground  therefore,  upon  which  persons  standing  in  this 
relation  to  the  litigating  party  are  bound  by  the  proceedings  to  which 
he  was  a  party  is,  that  they  are  identified  with  him  in  interest ;  and 
whenever  this  identity  is  found  to  exist,  all  are  alike  concluded. 
Hence,  all  privies,  whether  in  estate,  in  blood,  or  in  law,  are  estopped 
from  litigating  that  which  is  conclusive  on  him  with  whom  they  are 
in  privity."  The  correctness  of  this  statement  has  been  often  affirmed 
by  this  court;  Lovejoy  v.  Murray,  3  Wall.  (U.  S.)  i,  19;  Robbins  v. 
Chicago  City,  4  Wall.  (U.  S.)  657,  673;  and  the  principle  has  JDcen 
recognized  in  many  cases.  Indeed,  it  is  elementary.  Hale  v.  Finch, 
10  U.  S.  261,  265  ;  Brooklyn  City,  etc.,  R.  Co.  v.  Nat.  Bank,  102  U.  S. 
14,  22;  Bntterfield  v.  Smith,  loi  U.  S.  570.^- 

In  the  condition  of  parties  to  the  record  during  the  whole  course 
of  the  litigation  between  the  Homestead  Company  and  those  who 
were  nam.ed  as  defendants,  Mrs.  Litchfield  had  no  right  to  make  a 
defense  in  her  own  name,  neither  could  she  control  the  proceedings, 
nor  appeal  from  the  decree.  She  could  not  in  her  own  right  adduce 


•^Accord:  Hunt  v.  Haven,  52  N.  H.  162  (1872)  ;  Buchingham  v.  Ludlunt, 
37  X.  J.  Eq.  137  (1883)  ;  McDonald  &  Co.  v.  Gregory,  41  Iowa  513  (1875)  ; 
Hart  V.  Moulton,  104  Wis.  349,  80  N.  W.  599,  76  Am.  St.  881  (1899)  ;  Smith 
V.  Kessler,  22  Idaho  589,  127  Pac.  172  (1912)  ;  Foster  v.  Earl  of  Derby,  i  Ad. 
&  El.  783.(1834)  ;  Co.  Litt.  352b.  "It  is  well  understood,  though  not  usually 
stated  in  express  terms  in  works  upon  the  subject,  that  no  one  is  privy  to  a 
judgment  whose  succession  to  the  rights  of  property  thereby  affected  occurred 
previously  to  the  institution  of  suit."  Freeman  on  Judgments,  §  162;  Sampson 
V.  Oldever,  22  Cal.  200  (1863)  ;  Moreland  v.  H  C.  Prick  Coke_£.o.^  170  Pa.  St. 
33,  32  Atl.  634  O895)  ;  Gage  v^Parker,  178  III.  455,  53  N7  E.  317  (1899)  ; 
Riescliick  v.  Klingclhoefcr,  cji  Mo.  App.  430  (igoi). 


LITCHFIELD  V.    GOODNOW  6ll 

testimony  or  cross-examine  witnesses.  Neither  was  she  identified  in 
interest  with  any  one  who  was  a  party.  She  owned  her  lands;  the 
parties  to  the  suit  owned  theirs ;  her  rights  were  all  separate  and  dis- 
tinct from  the  rest,  and  there  was  no  mutvial  or  successive  relation- 
ship between  her  and  the  other  owners.  She  was  neither  a  party  to 
the  suit,  nor  in  privity  with  those  who  were  parties;  consequently 
she  was  in  law  a  stranger  to  the  proceedings  and  in  no  way  bound 
thereby.  As  she  was  not  bound,  the  Homestead  Company  and  its 
assigns  were  not.  Estoppels  to  be  good  must  be  mutual.®^  This  was 
in  effect  the  decision  of  the  court  below,  and  it  was  right. 

It  follows  that  there  is  no  error  in  the  record,  and 

The  judgment  is  affirmed.®* 


*'Per  Alderson,  B.,  in  Petrle  v.  Nuitall,  ii  Exch.  569  (1856)  :  "It  is 
essential  to  an  estoppel  that  it  be  mutual,  so  that  the  same  parties  or  privies 
may  both  be  bound  and  take  advantage  of  it."  Brereton  v.  Evans,  Cro.  Eliz. 
700  (1598)  ;  Bradford  v.  Bradford,  5  Conn.  127  (1823)  ;  Wenman  v.  Macken- 
zie, 5  El.  &  Bl.  447  (1855)  ;  Simpson  v.  Pearson,  31  Ind.  i,  99  Am.  Dec.  577 
(1869)  ;  Parker  v.  Moore,  59  N.  H.  454  (1879);  Chandler's  Appeal,  100  Pa. 
St.  262  (1882)  ;  Coney  v.  Harney,  53  N.  J.  L.  53,  20  Atl.  736  (1890)  ;  Buford 
V.  Adair,  43  W.  Va.  211,  27  S.  E.  260,  64  Am.  St.  854  (1897)  ;  Shipman  v. 
Rollins,  98  N.  Y.  311,  IS  Abb.  N.  Cas.  288  (1885)  ;  Walker  v.  Philadelphia, 
iq;  Pa.  St  1 68.  45  Atl.  657,  78  Am.  St.  801  (1900)  ;  Pfeffer  v.  Kling,  58  App. 
Div.  179,  68  N.  Y.  S.  641  (1901)  ;  Robinson  &  Co.  v.  Marr,  181  111.  App.  605 
(1913)  ;  Jones  v.  Adler,  183  Ala.  435,  62  So.  Tj-j  (1913)  Hudkins  v.  Crim,  72 
W.  Va.  418,  78  S.  E.  1043  (1913). 

"Accord:  Lo-wher  v.  Bcaiichamp,  2  Harr.  (Del.)  139  (1836)  ;  Burhans  v. 
Van  Zandt,  7  N.  Y.  523  (1852)  ;  Hale  v.  Chandler,  3  Mich.  531  (1855)  ;  Queen 
V.  Hartington,  4  El.  &  Bl.  780  (1855)  ;  Chase  v.  Szvain,  9  Cal.  130  (1858)  ; 
Spencer  v.  Williams,  L.  R.  2  P.  &  D.  230  (1871)  ;  Hill  v.  Stevenson,  63 
Maine  364    (1873);   Day  v.   Combination  Rubber  Co.,  2   Fed.  570    (1880); 

Rittist>aiiah    v. Lev.%s,     10?,    Pa.     SL I CJ883)  ;    De    Mora    v.     Concha, 

LT  R.  29  Ch.  Div.  268  (1885)  ;  Stnrbridge  v.  Franklin,  160  Mass  149,  35 
N.  E.  669    (1893)  ;  Ransom  v.  Brinkerhoff,  56  N.  J.  Eq.   149,  38  Atl.  919 

(1897)  ;  Louisville   &  N.  R.   Co.  v.  Brinkerhoff,   119  Ala.  606,  24   So.  892 

(1898)  ;  Owingsville  &c.  T.  Co.  v.  Hamilton,  53  S.  W.  5,  21  Ky.  L.  815,  5  S.  W. 
175,  21  Ky.  L.  1150  (1899)  ;  Reynolds  v.  Aetna  L.  I.  Co.,  160  N.  Y.  635,  55 
N.  E.  305  (1899)  ;  Harris  v.  Columbia  Water  &  L.  Co.,  114  Tenn.  328,  85 
S.  W.  897  (1904) ;  Fowler  v.  Stebbins,  136  Fed.  365  (1905)  ;  Ingersoll  v.  Coram, 
211  U.  S.  335,  52  L.  ed.  208  (1908)  ;  International  Forwarding  Co.  v.  Rosati, 
156  111.  App.  339  (1910)  ;  Kowal  v.  Lehrman,  144  App.  Div.  219,  128  N.  Y.  S. 
968  (1911)  ;  Mcrriam  v.  Saal field,  190  Fed.  927  (1911)  ;  Fkrhgrt  v  Ftpnr,  gi^ 
Pa.  Super.  Ct.  39  (T9T2)  ;  Feldkamp  v.  Ernst,  177  Mich.  550,  143  N.  W.  887 
(1913)  ;  Helm  v.  Zarecor,  213  Fed.  648  (1913).  The  judgment  is  conclusive 
upon  the  real  party  in  interest  and  not  upon  a  merely  nominal  or  formal  party 
having  no  interest  or  duty  in  the  subject-matter  of  the  litigation.  Rogers  v. 
Haines,  3  Greenl.  (Maine)  362  (1825);  Peterson  v.  Lothrop,  34  Pa.  St.  223 
(1859);  Fatist  v.  Baiimgartncr,  113  Ind.T39,  15  JM.  E.  zZJ'X'^^VrCUizenf 
Bank  V.  Miller,  45  La.  Ann.  493,  12  So.  516  (1893)  ;  Cheney  v.  Patton,  144  111. 
373.  34  N.  E.  416  (1893)  ;  Curtis  v.  Bradley,  65  Conn.  99,  31  Atl.  591,  28  L.  R. 
A.  143,  48  Am.  St.  177  (1894)  ;  United  States  v.  Des  Moines  Valley  R.  Co., 
84  Fed.  40  (1897)  ;  Malay  v.  Duden,  86  Fed.  402  (1898)  ;  Keller  v.  Mount 
Vernon,  23  App.  Div.  46,  48  N.  Y.  S.  370  (1897)  ;  Ransom  v.  Pierre,  loi  Fed. 
665  (1900).  One  not  a  party  may  be  bound  if  he  actually  submits  to  the  con- 
sideration of  the  court  his  claim  or  interest  in  the  subject  of  the  action. 
Sevey  v.  Chick,  13  Maine  141  (1836)  ;  Conant  v.  Jones,  50  App.  Div.  336  64 
N.  Y.  S.  189  (1900)  ;  Nash  v.  D'Arcy,  183  Mass.  30,  66  N.  E.  606  (1903)  ; 
Lake  v.  Weaver,  80  N.  J.  Eq.  395,  86  Atl.  817  (1912). 


6l2  JUIX.MKNT 

Kir  :•.    BRIGHAM 

Supreme  Court  of  Nfav  York,  iSio 
6  Joints.  (N.  Y.)  158 

This  was  an  action  brought  by  the  plaintiff,  as  sheriff  of  the 
county  of  Oneida,  against  the  defendants,  on  a  bond  given  as  se- 
curity for  the  gaol  liberties,  granted  to  the  defendant,  Abel  Brig- 
ham,\vho  had  been  arrested  and  imprisoned  on  a  ca.  sa.  in  favor  of 
John  Bissell. 

At  the  trial,  the  plaintiff  gave  in  evidence,  the  record  of  a  re- 
covery against  him,  in  favor  of  Bissell,  for  tlie  escape  of  the  defend- 
ant Brigham ;  that  immediately  after  suit  was  commenced  against 
the  plaintiff,  he  gave  notice  thereof  to  the  defendants,  and  the  suit 
was  regularly  defended  by  the  plaintiff,  aided  by  the  active  co- 
operation of  the  defendant's  counsel.  The  judge  ruled,  that  the  rec- 
ord of  the  recovery  in  that  suit  was  conclusive  against  the  defendants 
in  this  suit,  unless  they  could  show  fraud  or  collusion  between  the 
plaintiff  and  Bissell ;  and  he  rejected  evidence  offered  by  the  defend- 
ants, to  controvert  the  fact  of  the  escape.  A  verdict  was  accordingly 
found  for  tlie  plaintiff. 

A  motion  was  made  to  set  aside  the  verdict;  and  the  question 
submitted  to  the  court  was,  whether  the  opinion  of  the  judge  was 
correct. 

Per  Curiam  :  There  was  no  misdirection  on  this  point.  The 
case  of  Blasdale  v.  Bahcock,  i  Johns.  (N.  Y.)  517  shows  that  the 
record  was  evidence,  in  this  case,  for  the  plaintiff;  and  as  the  bond, 
on  which  the  suit  was  brought,  was,  in  effect,  a  bond  of  indemnity, 
the  recovery,  after  notice  to  the  defendants,  and  their  assuming  the 
defense,  was  conclusive,  that  the  plaintiff  had  been  damnified  to 
that  extent.  The  case  of  Diiffield  v.  Scott,  3  Term  Rep.  374,  is  to 
this  point;  and  the  present  is  a  stronger  case,  because  here  the  de- 
fendants assumed  upon  themselves  the  defense  of  the  suit,  and 
became  essentially  parties.  The  case  of  principal  and  surety  is  said 
Pothier,  Traite  des  Obligations,  part  4,  ch.  3,  section  61,  not  to  come 
within  the  rule  of  res  inter  alios  acta.  The  case  of  Bander  v.  Frem- 
berper,  4'Da.\\.  (Pa.)  436,  is  also  a  strong  authority  in  support  of  the 
opinion  given  upon  thel;rial.  The  suit  there  was  on  the  covenant 
of  warranty  in  a  deed;  and  to  show  a  breach,  the  plaintiff  gave  in 
evidence  a  recovery  against  him  in  ejectment,  by  a  third  person, 
and  tliat  the  defendants  had  notice  of  this  ejectment,  and  took  part 
in  the  defense.  The  defendant  then  offered  to  controvert  the  title 
of  that  third  person,  and  that  he  conveyed  good  title  to  the  plaintiffs ; 
but  the  court  held  the  evidence  inadmissible.  The  same  rule  was  laid 
down  in  the  case  of  Hamilton  v.  Oitts.  4  Tyng  (Mass.)  349.  The] 
motion  to  set  aside  the  verdict  is  therefore  denied. 

Motion  denied.^^ 


"The  general  rule  is  that  one  responsible  over  to  another,  who  has  been 
notified  of  a  suit  against  the  person  he  is  bound  by  law,  or  by  agreement,  to 


KIP   V.    BRIGHAM  613 

indemnify,  and  who  has  had  an  opportunity  to  appear  and  defend,  is  con- 
ckided  by  the  judgment.  Freeman  on  Judgments,  §  181 ;  Hamilton  v.  Cutis, 
4  Mass.  349,  3  Am.  Dec.  222  (1808)  ;  Kip  v.  Bingham,  7  Johns.  (N.  Y.)  168 
(1810);  Clarke  v.  Carrington,  7  Cranch  (U.  S.)  308,  3  L.  ed.  354  (1813)  ; 
Barney  V.  Dczvcy,  13  Johns.  (N.  Y.)  224,  7  Am.  Dec.  372  (1816)  ;  Brown  Co. 
V.  Butt,  2  Ohio  348  (1826)  ;  Pope  v.  Nance,  I  Stew.  (Ala.)  354.  18  Am.  Dec. 
60  (1828)  ;   Mpl,nffv_v_J.ytle,  T  Watts  CPaJ)_2i4(i833)  ;  Walker  v.  Ferrin, 


4  Vt.  523  (iSJiytlloydv.  Barr,  1 1  Pa.  St.  41  (j849) ;  Bullock  v.  Winter,  10 
Ga.  214  (1851)  ;  CKicago  &  NTW.l^To.  v.  Northern  Line  Packet  Co.,  70  111. 
217  (1873)  •  Washington  Gaslight  Co.  v.  District  of  Coliimhia,  161  U.  S.  316, 
40  L.  ed.  712,  16  Sup.  Ct.  564  (1895)  ;  Dcmpsey  v.  Schawacker,  140  Mo.  680,  38 
S.  W.  954,  41  S.  W.  iioo  (1897)  \JPo]£lcrv^JST.^^y  ^jl'^^i^  ^^^F^:.  ^"pgr-  Ct.  366 
(1901);  Prescott  V.  LeConte,  ^:i  AppT TJrvT^fe,  82  N.  Y.  S."4il  O903I  ; 
Rowell  V.  Smith,  123  Wis.  510,  102  N.  W.  I  (1905)  ;jKoch  v.  Hinkle,  35  Pa. 
SuEer.JX42j  (1908)  ;  May  v.  Poluhoff,  65  Misc.  546,  i2bTnrrSrS27Crgio)l 
American  Surety  Co.  of  Nezv  York  v.  Sandberg,  225  Fed.  150  (1915)-  The 
decisions  of  different  courts  are  not  uniform  upon  the  requirements  o£  the 
notice  to  be  given  to  the  indemnitor.  It  need  not  be  in  writing.  Ferrea  V. 
Chabot,  63  Cal.  564  (1883)  ;  Miner  v.  Clark,  13  Wend.  (N.  Y.)  425  (1836)  ; 
Somers  v.  Schmidt,  24  Wis.  417,  i  Am.  Rep.  191  (1869).  The  party  against 
whom  ultimate,  liability  is  claimed  must  be  fully  and  fairly  informed  that  the 
action  is  pending,  with  full  opportunity  to  defend  or  participate  in  the  defense. 
If  he  then  neglects,  or  refuses  to  make  any  defense  he  may  have,  the  judg- 
ment will  conclude  him.  Oceanic  Steam  Nav.  Co.  v.  Campania  T.  E.,  144 
N.  Y.  663,  39  N.  E.  360  (1895)  ;  Consolidated  Hand-Method  Lasting  Mack. 
Co.  V.  Bradley,  171  Mass.  127,  50  N.  E.  464,  68  Am.  St.  409  (1898)  ;  Shrews- 
bury V.  Boylston,.!  Pick.  (Mass.)  103  (1822)  ;  Jacob  v.  Pierce,  2  Rawle  (Pa.) 
204  (1828)  ;  Stephens  v.  Jack,  3  Yerg.  (Tenn.)  403,  24  Am. 'Dec.  583  (1832)  ; 
Bramble  v.  Poultney,  li  Vt.  208  (1839)  ;  Brown  v.  Chancy,  I  Ga.  410  (1846)  ; 
Hardy  V.  Nelson,  27  Maine  525  (1847)  ;  Piftshnrnh,  C  fi-  St  T.  R  Co.  v. 
Mnr<;J,n]J^  ^c^  P^  ,9t,  T'^7  (^^7?^  ',  Lamar  Ins.  Co.  v.  Pennell,  19  111.  App.  2I2^ 
(^885)  ;  Richmond  v.  Ames,  164  Mass.  467,  41  N.  E.  671  (1895) ;  The  Chesa- 
peake L.  &  T.  Co.  V.  Western  Assur.  Co.,  99  Md.  433,  58  Atl.  16  (1904)- 
The  appearance  of  the  indemnitor  in  defense  of  the  suit  is  evidence  that  he 
had  notice.  Harding  v.  Larkin,  41  111.  413  (1866)  ;  In  re  Alexander's  Estate, 
214  Pa.  369,  63  Atl.  799  (1906).  But  one  is  not  bound  if  it  appears  that  the 
deiendant  m  the  first  action  refused  to  permit  him  to  become  a  party  on  the 
record,  or  to  participate  in  the  trial  or  to  perfect  an  appeal  from  the  judgment. 
Fifth  Muf    Rldrr  Society  V  Holt,  184  Pa.  St.  572,  39  Atl.  293  (1898). 

One  who,  to  protect  himself  from  liability  on  the  covenants  in  a  lease, 
actively  conducts  the  defense  in  an  action  against  his  tenant  to  recover  pos- 
session and  for  use  and  occupation,  employing  counsel  and  paying  costs,  is 
estopped  from  questioning  the  validity  of  a  judgment  obtained  in  such  action 
against  his  tenant.  But  he  can  not  be  compelled  to  pay  the  plaintiff  in  such 
action  the  damages  awarded.  His  liability  is  to  his  tenant  and  covenantee  only. 
Hendricks  v.  Dean,  103  Minn.  162,  117  N.  W,  426  (1908). 


6i4  jrix;Mi:NT 

GIBSON  r.   LICDWTTCII 
Supreme  Court  of  Kansas.  191  i 

84  Kiins.  505 

Johnson,  C.  J.:  This  was  an  action  to  foreclose  a  mortgage 
executed  by  Thomas  F.  Ledwitch  to  F..  Hehker,  as  trustee  for  A.  C. 
Wilcox,  who  assigned  it  to  Charles  E.  Gibson.  It  recited  that  "the 
said  Thomas  F.  Ledwitch  is  indebted  to  A.  C.  Wilcox,  five  hundred 
dollars,  evidenced  by  one  promissory  note  of  even  date  herewith, 
executed  by  said  Thomas  F.  Ledwitch,  payable  to  the  order  of  A.  C. 
Wilcox."  It  also  stipulated  that  if  default  should  he  made  in 
payment  of  either  the  note  or  the  interest  coupons,  or  in  procuring 
insurance,  or  in  paying  taxes,  the  whole  debt  should  become  due 
at  the  option  of  tli'e  owner,  and  that  a  foreclosure  suit  might  be 
instituted  at  once.  It  was  also  agreed  that  if  there  was  a  default  of 
payment  of  any  sum  for  thirty  days  the  mortgagor  would  be  required 
to  pay  to  the  owner  of  the  note  interest  at  the  rate  of  twelve  per 
cent,  per  annum  from  the  date  of  the  note  to  the  time  of  actual 
payment.  The  only  duty  devolving  on  the  trustee,  by  the  terms  of 
tlie  mortgage,  was  that  he  was  authorized  by  the  mortgagor  "to  pay 
all  liens  of  any  kind,  eitlier  prior  or  subsequent,  that  may  in  any 
manner  affect  the  title  to  the  land  herein  conveyed,"  etc.  There  was 
no  appearance  by  any  of  the  defendants  in  the  foreclosure  action, 
except  J.  K.  Flitch,  who  set  up  as  a  defense  tliat  in  a  former  action 
against  E.  Heliker,  trustee,  as  defendant,  a  judgment  was  rendered 
by  default  quieting  the  title  of  the  land  in  Hitch.  In  that  action  it 
appears  that  Heliker  was  served  by  publication,  and  that  Wilcox, 
the  payee  and  owner  of  the  note,  was  not  made  a  party.  In  the 
present  action  the  trial  court  held  that  the  former  decree,  quieting 
title  in  Hitch,  was  a  bar  to  the  maintenance  of  the  action  of  fore- 
closure by  Wilcox's  assignee,  and  from  this  decree  the  plaintiff 
appeals. 

The  only  question  for  decision  is  whether  the  judgment  quieting 
title  in  Hitch  is  binding  on  Wilcox  and  his  assignee,  and  is  a  bar 
to  the  action  of  foreclosure.  The  instrument  in  suit  is  conceded  to  be 
a  mortgage — a  mere  incident  to  the  debt  which  it  secures.  It  is  nqt 
a  trust  deed,  and  by  it  nothing  is  conveyed  to  the  trustee.  He  is 
named  as  trustee,  but  it  seems  that  he  bears  only  a  nominal  relation 
to  the  security.  The  debt  is  not  payable  to  him,  the  option  to  declare 
the  debt  due  upon  default  in  any  of  the  conditions  does  not  rest  with 
him,  he  has  no  authority  to  transfer  the  mortgage  or  to  foreclose 
it  and  is  given  no  control  whatever  over  the  mortgage  relations.  He 
is  a  trustee  in  name,  witliout  powers  or  duties  in  respect  to  the  mort- 
gage relations,  and  manifestly  is  without  authority  to  represent  the 
owner  of  the  debt  v/hich  the  mortgage  secures.  Even  when  a  trustee 
has  an  interest,  and  is  vested  with  powers  and  duties  over  the  mort- 
gage relations,  it  is  generally  deemed  necessary  to  make  the  trustee 
and  beneficiar}-^  parties  to  a  foreclosure  action.    It  has  been  said: 


GIBSON    V.    LEDWITCH  615 

"The  general  rule  is  that,  in  all  proceedings  affecting  the  trust 
estate,  whether  brought  by  or  against  third  persons,  the  trustee  and 
cestui  que  trust  are  so  far  independent  of  each  other  tliat  the  latter 
must  be  made  a  party  to  the  suit  in  order  to  be  bound  by  the  judg- 
ment or  decree  rendered  therein."  23  Cyc.  1246.  See  also  2  Black. 
Judg.  (2d  ed.)  section  585;  2  Perry  Trusts  section  873;  Wiltsie 
Mort.  Forecl.  section  112. 

In  Hutchinson  v.  Myers,  52  Kans.  290,  where  a  mortgage  in 
which  a  trustee  was  named  as  second  party  and  occupied  a  position 
similar  to  the  nominal  trustee  in  the  mortgage  in  this  case  was 
involved,  it  was  held  that  the  beneficiary  or  creditor  alone  could 
maintain  an  action  to  foreclose  in  his  own  name.  It  was  easy  to 
imagine  a  case  of  a  trustee  vested  with  powers  and  duties  as  to  the 
mortgage  relations,  and  clothed  with  authority  to  represent  the 
beneficiary  in  the  collection  of  the  mortgage  debt,  the  foreclosure  of 
the  mortgage  and  the  protection  of  the  security  from  the  attacks  of 
third  parties,  where  a  judgment  against  the  trustee  might  be  binding 
on  the  beneficiary.  Swcnney  v.  Hill,  65  Kans.  826. 

In  Kerrison  v.  Stewart,  93  U.  S.  155,  it  was  said:  "It  can  not 
be  doubted  that,  under  some  circumstances,  a  trustee  may  represent 
his  beneficiaries  in  all  things  relating  to  their  common  interest  in  the 
trust  property.  He  may  be  invested  with  such  powers  and  subjected 
to  such  obligations  that  those  for  whom  he  holds  will  be  bound  by 
what  is  done  against  him,  as  well  as  what  is  done  by  him.  The  diffi- 
culty lies  in  ascertaining  whether  he  occupies  such  a  position,  not 
in  determining  its  effect  if  he  does.  If  he  has  been  made  such  a  rep- 
resentative, it  is  well  settled  that  his  beneficiaries  are  not  necessary 
parties  to  a  suit  by  him  against  a  stranger  to  enforce  the  trust.^^ 

*'The  opinion  (per  Waite,  C.  J.),  continues:  "If  he  has  been  made  such 
a  representative,  it  is  _  well  settled  that  his  beneficiaries  are  not  necessary- 
parties  to  a  suit  by  liim  against  a  stranger  to  enforce  the  trust.  Shaw  v. 
Norfolk  Co.  R.  Co.,  5  Gray  (Mass.)  162  (1855)  ;  Bifield  v.  Taylor,  I  Beat.  91 
(1828);  Campbell  V.  Texas  &  New  Orleans  R.  Co.,  Fed.  Cas.  No.  2366, 
I  Woods  (U.  S.  C.  C.)  368  (1871)  ;  Ashton  v.  Atlantic  Bank,  3  Allen  (Mass.) 
220  (1861)  ;  or  to  one  by  a  stranger  against  him  to  defeat  it  in  whole  or  in  part. 
Rogers  v.  Rogers,  3  Paige  (N.  Y.)  379  (1832)  ;  Wakeman  v.  Grover,  4  Paige 
(N.  Y.)  23  (1832)  ;  Winslow  v.  Minn.  R.  Co.,  4  Minn.  313  (Gil.  230),  77  Am. 
Dec.  519  (i860)  ;  Campbell  v.  Watson,  8  Ohio  499  (1838).  In  such  cases,  the 
trustee  is  in  court  for  and  on  behalf  of  the  beneficiaries ;  and  they,  though  not 
parties,  are  bound  by  the  judgment,  unless  it  is  impeached  for  fraud  or  collu- 
sion between  him  and  the  adverse  party."  Vetterlein  v.  Barnes,  124  U.  S.  169, 
8  S.  Ct.  441,  31  L.  ed.  400  (1888)  ;  Robertson  v.  Van  Cleave,  129  Ind.  217,  26 
N.  E.  899,  29  N.  E.  781,  IS  L.  R.  A.  68  (1891)  ;  Cooky  v.  Kelley,  52  Ind.  App. 
687,  98  N.  E.  653,96  N.  E.  638  (1911).  The  principle  has  frequently  been 
applied  in  proceedings  relating  to  mortgages  where  a  trustee  holds  the  title 
for  the  benefit  of  bondholders.  Corcoran  v.  Chesapeake  &  O.  Canal  Co.,  94 
U.  S.  741,  24  L.  ed.  190  (1867)  ;  Shaw  v.  Railroad  Co.,  100  U.  S.  605,  25  L.  ed. 
757  (1879)  ;  Chicago  &  Great  Western  Railroad  Land  Co.  v.  Peck,  112  111. 
408  (1885) ;  Beats  v.  ///.  Cent.  R.  Co.,  133  U.  S.  290,  3^  L.  ed.  608,  10  Sup.  Ct. 
314  (1880)  ;  Toler  v.  East  Tennessee  &c.  R.  Co.,  67  Fed.  168  (1894)  ;  Woods  v. 
Woodson,  100  Fed.  515  (1900)  ;  Grant  v.  Winona  &  S.  R.  Co.,  85  Minn.  422, 
89  N.  W.  60  (1902).  Contra:  Davis  v.  Hemingway,  29  Vt.  438  (1857); 
Raphael  v.  Wasatch  &c.  Co.,  201  Fed.  854  (1912)  ;  Tyson  v.  Applegate,  40 
N.  J.  Eq.  305  (1885).  For  England,  see  rules  of  Supreme  Court,  order  16, 
rule  8.  Francis  V.  Harrison,  L.  R,  43  Ch.  Div.  183  (1889)  ;  In  re  Mitchell,  65 
L.  T.  851  (1892). 


6i6  JUDGMF.N'T 

lloro  the  trustee  has  no  beneficial  interest  in  the  mortg^age,  he 
was  vested  with  no  power  or  control  as  to  either  the  debt  or  the 
security  and  was  clothed  with  no  authority  to  represent  the  creditor 
as  to  the  niorl,i;ai;e  or  the  mort.i^nge  lien,  and  unless  the  creditor  is 
himself  brous^iit  into  litigation  the  judgment  can  not  operate  as  an 
estoppel  against  him.  Notliing  done  by  or  against  the  nominal 
trustee,  in  an  action  to  which  the  owner  of  the  note  and  mortgage 
was  not  a  party,  could  operate  to  bind  the  latter,  and  the  judgment 
relied  on  by  the  appellees  was  no  defense  or  bar  to  the  maintenance 
of  the  foreclosure  action. 

It  follows  that  the  judgment  of  the  district  court  must  be  re- 
versed and  the  cause  remanded  for  further  proceedings.*"' 

"One  not  a  r^rty  will  be  concluded  by  a  judgment  in  a  suit  if  repre- 
sented bv  a  partv  Iccallv  entitled  to  represent  him.  Stout  V.  Lye,  103  U.  S.  66, 
26  L.  ed.  4-;S  (I'SSo)  ;  Grcrn  v.  Poguc,  158  U.  S.  478,  39  L.  cd.  1061,  15  Sup. 
Ct.  975  (1894).  As  applied  to  trusts,  "a  suit  to  obtain  or  defend  possession  p£ 
property  belonging  to  trustees,  or  claimed  to  belonp;  to  them,  is  readily  dis- 
tinguishable from  one  concerning  the  execution  of  the  trust,  where  there  are 
often  various  and  conflicting  interests  between  the  different  cestui  que  trust." 
Jezi'ctt  V.  Tucker,  139  AIass.^566,  2  N.  E.  680  (1885).  At  law,  in  matters  affect- 
ing the  trust  estate  the  trustee,  invested  with  the  legal  title,  sues  in  his  own 
name,  McRacnv  v.  Johnson,  2  Fla.  520  (1849) ;  Parsons  v.  Boyd,  20  Ala.  112 
(1852)  ;  Presley  v.  Stribling,  24  Miss.  527  (1852)  ;  Pcnna.  K.  Co.  v.  Duncan, 
iiTPa.  St.  352,  5  Atl.  742  (l886)  ;  Barker  v.  Furlong,  L.  R.  2  Ch.  Div.  172 
(1891),  and  the  beneficiaries  will  be  concluded  by  the  judgment,  although 
thev  mav  have  a  remedy  against  the  trustee  if  he  fails  in  his  duty.  Clark  v. 
Flanner'v,  99  Ga.  239,  25  S.  E.  312  (1896);  Boyden  V.  Partridge,  68  Alass. 
(2  Gray)  190  (1854);  Miller  V.  Butler,  121  Ga.  758,  49  S.  E.  754  (1904); 
Cooley'w.  Kelley,  52  Ind.  App.  687,  96  N.  E.  638,  98  N.  E.  653  (iQiO- 

In  equity,  the  general  rule  is  that  all  persons  interested  in  the_  subject- 
matter  of  tlie  suit  must  be  made  parties,  if  the  same  is  to  affect  their  rights, 
and  this  rule  requires  that  in  litigation  respecting  trust  property  both  trustee 
and  cestui  que  trust  be  made  parties.  Kirk  V.  Clarke,  2  Eq.  Ga.  Abr.  165 
(1708)  ;  s.  c.  Prec.  Ch.  27s;  Bifield  v.  Taylor,  i  l\Ioll.  193,  I  Beat.  91  (1828)  ; 
Collins  V.  Lofftiis,  10  Leigh.  (Va.)  5,  34  Am.  Dec.  719  (1839);  Stilkvell  v. 
McNeely,  2  N.  J.  Eq.  305  (1840)  ;  Mathczvs  v.  Stebhenson.  6  Pa.  St.  406^ 
(1847);  Dunn  V.  Seymour,  li  N.  T  Fg.  o?n  (f?,'.e>^-^chollv.  Sclwener.  1 
j^Vnnftw  X£aJ-,200  (1S62);  Spragtic  V.  Tyson,  44  Ala.  338  (1870)  ;  Day  v. 
Wetherhy,  29  \Vls.  3O3  (.i»72')  ;  PoUerjulLoMiii,  10  Phila,  (Pa  )^96,  32-I*eg- 
Int.  66  (1875)  ;  Trustees  of  the  Internal  Improvement  Fund  v.  Gleason,  15  Fla. 
384  (1875)  ;  Scanlon  v.  Cobb,  85  111.  296  (1877) ;  Rembcrt  v.  Key,  58  Miss.  533 
(1880)  ;  Hill  V.  Durand,  50  Wis.  3^4,  7  N.  W.  243  (1880)  ;  Lehigh  C.  &  N. 
(2£L^y  Appml,  88Ea^  St.  409  ^T-Syol;  Bank  V.  Crafts,  145  Mass.  444  (1888)  ;  " 
Zehnbar  V.  Spillman,  25  Fla.  591,  6  So.  214  (1889)  ;  Kevitt  v.  Woodhurn,  82 
111.  App.  649  (1898),  reversed  190  111.  283,  60  N.  E.  500;  Wilcox  v.  Mann,  115 
Iowa  91,  87  N.  W.  748  (1901)  ;  Pyle  v.  Henderson,  55  W.  Va.  122,  46  S.  E. 
791  (1904).  The  modem  tendency  is  to  limit  this  rule  to  cases  where  the  rela- 
tions between  trustee  and  beneficiary  are  material  or  where  the  power  of  the 
trustee  to  bind  or  control  the  property  is  in  question.  McGrazv  v.  Bayard,  96 
111.  146  C1880);  Northampton  Nat.  Bank  v.  Crafts,  145  Mass.  444,  14  N.  E. 
758  (1888);  General  F.  F.  Co.  v.  Lundell,  66  111.  App.  140  (1895);  In  re 
Tucker,  153  Fed.  91  (1906).  And,  ordinarily,  the  beneficiaries  are  represented 
by  the  trustee  where  the  trust  is  an  active  one,  imposing  upon  the  trustee  the 
duty  of  receiving,  controlling  and  managing  the  trust  fund  for  the  benefit  of 
the  ce.<!tiii  que  trust.  Willis  v.  Henderson,  5  111.  13  (1842)  ;  Carey  v.  Brown, 
92  U.  S.  171,  23  L.  ed.  469  (1875')  ;  Ames'  Cases  on  Trusts  (2d  ed.)  260,  note; 
Van  Bokkclen  v.  Tinges,  58  Md.  53  (1881)  ;  Smith  v.  Portland,  30  Fed.  734 
(1887)  ;  Warren  v.  Howard,  99  N.  Car.  190,  5  S.  E.  424  (1888)  ;  Vetterlein  v. 
Barnes,  124  U.  S.  169,  31  L.  ed.  400,  8  Sup.  Ct.  441  (1888)  ;  In  re  Estate  of 


SINGER  V.    HUTCHINSON  617 

SINGER  V.  HUTCHINSON 

Supreme  Court  of  Illinois,  1900 

183  ///.  606 

This  is  an  appeal  from  a  judgment  of  the  appellate  court  affirm- 
ing a  decree  rendered  on  a  creditor's  bill  filed  by  appellees  January 
7,  1898,  against  the  Singer  &:  Talcott  Stone  Company  and  others,  as 
defendants,  to  reach  the  assets  of  the  Singer  &  Talcott  Stone  Com- 
pany in  the  possession  of  the  defendants,  as  stockholders.  Edward 
T.  Singer,  Charles  G.  Singer,  Walter  Singer,  Harriet  A.  Singer, 
Charles  B.  Kimball,  Spencer  Kimball  and  the  Singer  &  Talcott  Com- 
pany were  made  defendants  to  the  bill. 

The  evidence  showed  that  June  12,  1897,  a  judgment  was  ren- 
dered in  the  Superior  Court  of  Cook  County  in  a  suit  at  law 
brought  January  21,  1893,  in  which  appellees  were  plaintiffs  and 
the  Singer  &  Talcott  Stone  Company  was  defendant,  in  favor  of 
appellees,  for  the  sum  of  $15,496.33  and  costs;  that  August  10, 
1897,  an  execution  was  issued  on  said  judgment,  which  execution 
was  returned  by  the  sheriff  November  8,  1897,  "no  property  found." 

The  defendants  (appellants  here)  offered  evidence  tending  to 
show  that  the  appellees  were  not  entitled  to  recover  in  the  action 
at  law — in  other  words,  such  evidence  as  might  have  been  admis- 
sible in  that  suit — which  evidence  the  court  excluded. 

The  decree  was  that  the  defendants  Edward  T.  Singer  and 
Charles  G.  Singer  and  the  Singer  &  Talcott  Stone  Company  pay  to 
the  complainants  $16,639.66.^® 

Craig,  J. :  It  is  first  claimed  by  appellants  in  the  argument  that 
the  judgment  recovered  in  the  law  court  against  the  stone  company 
is  not  proper  evidence  of  the  existence  of  a  claim  against  the  cor- 

Stewart,  126  N.  Y.  201  (1891)  ;  Roberts  v.  New  York  E.  R.  Co.,  155  N.  Y.  31, 49 
N.  E.  262  (1898)  ;  Sanders  v.  Houston  Guano  &c.  Warehouse  Co.,  107  Ga.  49, 
32  S.  E.  610  (1899)  ;  Jowa  &  C.  I.  Co.  v.  Hoag,  132  Cal.  227,  64  Pac.  1073 
(1901)  ;  Perkins  v.  Burlington  Land  &  Improvement  Co.,  112  Wis.  509, 
88  N.  W.  648  (1902)  ;  Miller  v.  Butler.  121  Ga.  758,  49  S.  E.  754  (1904)  ; 
Felkner  v.  Dooly,  27  Utah  350,  75  Pac.  854  (1904)  ;  McDevitt  v.  Bryant,  104 
Md.  187,  64  Atl.  931  (1906)  ;  Gould  v.  Soto,  14  Ariz.  558,  133  Pac.  410  (1913)  ; 
Sherman  v.  Goodwin,  15  Ariz.  47,  135  Pac.  719  (1913).  See  also  N.  Y.  Code 
Civ.  Pro.,  §  449 ;  Cal.  Code  Civ.  Pro.,  §  369. 

The  beneficiary  is  bound  where  the  suit  is  prosecuted  or  defended  by 
the  trustee  with  the  consent  or  participation  of  the  beneficiary.  Plum  v.  Good- 
now,  123  U.  S.  560,  31  L.  ed.  268,  8  Sup.  Ct.  216  (1887)  ;  Bracken  v.  Atlantic 
Trust  Co.,  36  App.  Div.  67,  55  N.  Y.  S.  506  (1899)  ;  Jackson  v.  West,  22  Tex. 
Civ.  App.  483,  54  S.  W.  297  (1900)  ;  Glass  v.  Concordia,  113  La.  544,  Z7  So. 
189  (1904)  ;  Alexander's  Estate.  21A  Pa.  369;63Atl.  799J1906).  But  a  judg- 
ment against  a  party  sued  or  suing  as  an  indiviclual  is'not  an  estoppel  in  a 
subsequent  action  where  he  sues  as  trustee.  Rathbone  v.  Hoonly,  58  N.  Y. 
463  (1874)  ;  Bakery.  Small,  17  Pa.  Super.  Ct.  423  (1901)-  So,  a  common-law 
judgment  against  the  cestui  que  trust  does  not  bin'o"  the  trustee,  he  not  being 
a  party.  Roberts  v.  Yancey,  94  Ky.  243,  21  S.  W.  1047,  15  Ky.  L.  Rep.  10, 
42  Am,  St.  357  (1893). 

_   '"Only  so  much  of  the  case  as  relates  to  the  question  of  res  judicata  is 
prmted. 


6l8  JUDGMENT 

l^oratlon  to  chnr,c:c  property  in  piod  faith  distributed  to  appellants, 
they  not  bcinij  i)artics  thereto.  It  is  well  settled  rule  that  a  judg- 
ment rendered  in  a  court  of  competent  jurisdiction  is  conclusive 
between  ]>arties  and  privies  in  rei;ard  to  all  matters  of  controversy 
determined  by  the  judj^ment,  and  all  persons  represented  by  the 
parties,  both  plaintill"  and  defendant,  are  bound  and  concluded 
as  privies  by  the  judgment  which  may  be  rendered.  It  is  also  a  well 
settled  rule  that  a  corporation  represents  the  stockholders  in  all 
matters  within  the  scope  of  its  corporate  powers  transacted  in  good 
faith  by  the  officers  of  the  corporation.  Among  the  conceded  powers 
of  corporations  may  be  mentioned  those  of  bringing  and  defending 
actions  in  regard  to  the  rights  and  obligations  of  the  corporation. 
Bissit  V.  Kcntiichy  River  Nav.  Co.,  15  Fed.  353,  is  an  interesting  case 
on  this  question,  where  the  authorities  are  fully  cited  and  commented 
upon  in  a  note. 

This  was  a  creditor's  bill  by  a  creditor  wdio  had  reduced  his 
claim  to  judgment  against  the  Singer  &  Talcott  Stone  Company, 
brought  against  the  corporation  and  its  stockholders,  to  reach  assets 
belonging  to  the  corporation  which  had  been  turned  over  by  the 
officers  of  the  corporation  to  the  stockholders  in  fraud  of  tlie 
rights  of  the  creditors,  and  it  is  not  claimed  that  the  judgment 
against  the  corporation  was  obtained  by  fraud,  or  that  there  was  a 
want  of  jurisdiction  in  the  court  in  which  the  judgment  was  ren- 
dered. In  tlie  absence  of  fraud  in  obtaining  the  judgment  against 
the  corporation,  and  in  the  absence  of  a  want  of  jurisdiction  in  the 
court  wherein  the  judgment  w-as  rendered,  we  think  the  judgment  in 
a  case  of  this  character  was  conclusive  against  the  stockholders 
as  to  the  amount  and  validity  of  the  claim  of  the  creditor.®^ 

Affirmed. 


'"Accord:  Brewer  v.  New  Gloucester,  14  Mass.  216  (1817)  ;  Gaskill  v. 
Dudley,  47  Mass.  (6  Mete.)  546,  39  Am.  Dec.  750  (1843)  I  Lane  v.  Inhahitanis 
of  the  Fourth  School  Disf.  in  Weymouth,  51  Mass.  462  (1845)  ;  Donworth  v. 
Coolbaugh,  5  Iowa  300  (1857)  ;  Milliken  v.  VVhitehouse,  49  Maine  527  (i860)  ; 
Wilson.  McElroy  &  Co.  \.  Pittsburgh  &  Youphiogheny  Coal  Co.,  43  Pa.  St. 
424  (1862)  ;  Haixjes  v.  Anglo-Saxon  P.  Co.,  loi  Mass.  385  (1869)  ;  Thayer  "7. 
A'ew  L'ngland  L.  Co.,  108  ]Mass.  523  (1871)  ;  Hazvkins  v.  Glenn,  131  _U.  S. 
319,  33  L.  ed.  184,  9  Sup.  Ct.  739  (1S89)  ;  IVilloughby  v.  Chicago  Junction  R. 
Co.,  50  N.  J.  Eq.  656,  25  Atl.  277  (1892)  ;  Capital  City  Mnt.  F.  Ins.  Co.  v. 
Boggs,  172  Pa.  St.  91,  33  Atl.  349  (1895);  Hatfield  v.  Cummings,  152  Ind. 
537.  53  JN-  ^-  761  (1898)  ;  Welch  v.  Sargent,  127  Cal.  72,  59  Pac.  319  (1899)  ; 
Hancock  Nat.  Bank  v.  Farnnm,  176  U.  S.  640,  44  L.  ed.  619,  20  Sup.  Ct.  506 
( 1900)  ;  Hearst  v.  Putnam  Min.  Co.,  28  Utah  184,  "jy  Pac.  753,  66  L.  R.  A. 
784,  107  Am.  St.  608  (1904)  ;  Converse  v.  Aycr,  197  Mass.  443,  84  N.  E.  98 
(1908)  ;  French  v.  Ffardiufi^  ^^6  Pa  Super.  Ct.  363  (joi^^.  Contra:  McMahon 
V.  Macy,  51  N.  Y.  153  (1872)  ;  Larkin  v.  Hogan,  14  Ariz.  63,  126  Pac.  268 
(1912)  ;  Davidson  v.  Real  Estate  &  Investment  Co.,  249  Mo.  474,  15S  S.  W.  I 
(1913) ;  Mister  v.  Thomas,  122  Md.  44^,  89  Atl.  844  (1914)  ;  Clarke  v.  Marks, 
III  Maine  218,  88  Atl.  718  (1913)  ;  Chase  v.  Curtis,  113  U.  S.  452,  5  Sup.  Ct. 
554,  28  L.  ed.  1038  (1884  N.  Y.  Lav.-)  ;  Wetter  v.  Letvis,  22  Misc.  12,  48  N.  Y. 
S.  617  (1897)  ;  Assets  Realization  Co.  v.  Howard,  70  ^Misc.  651,  127  N.  Y.  S, 
798  (1911)  ;  Finney  v.  Guy,  106  Wis.  256,  82  N.  W.  595,  49  L-  R-  A.  486  (1900)  ; 
Cla-.'.scn  V.  Head,  no  Wis.  405,  85  N.  W.  1028,  84  Am.  St.  933  (iQOi).  Or  at 
least,  not  more  than  prima  facie  evidence.  Merchants'  Bank  v.  Chandler,  10 
Wis.  434  (1865)  ;  Grund  V.  Tucker,  5  Kan.  70  (1869)  ;  Ward  v.  Joslin,  105  Fed. 
224  (1900  Kans.  Law). 


i 


HARVEY   V.    WILDE  619 

HARVEY  V.  WILDE. 
Court  of  Chancery,  1872 
L.  R.  14  Eq.  Cas.  438 

This  was  a  creditor's  suit  for  the  administration  of  the  real 
and  personal  .estate  of  WilHam  Wilde,  deceased,  who  by  his  will, 
dated  tlie  15th  of  February,  1865,  appointed  the  defendants,  Samuel 
Seeker  Hill  and  William  Wilde,  executors  thereof;  and  also  devised 
certain  specific  real  estate  to  them  upon  trust  for  the  benefit  of  his 
daughter  Eliza  Reilly  for  life,  and  after  her  death  for  her  brothers 
and  sisters  and  the  two  sons  of  her  deceased  brother.'^" 

The  testator  died  July  28,  1866.  In  February,  1869,  the  firm  of 
Harveys  &  Hudsons,  bankers,  brought  an  action  at  law  against  the 
executors  for  the  recovery  of  a  balance  due  from  the  testator  aj; 
the  time  of  his  death.  The  executors  denied  liability  and  comm.enced 
a  cross  action.  Under  an  order  of  court  both  actions  were  referred 
to  an  arbitrator  who  found  that  the  bank  was  entitled  to  recover 
from  the  defendants,  as  executors,  the  sum  of  £5,066  los.  6d.  and 
judgment  Vv"as  signed  for  the  plaintiffs  June  14,  1870. 

On  tlie  9th  of  July,  1870,  the  decree  was  made  in  this  suit  in 
the  usual  form,  directing  inquiries  as  to  the  real  estate,  and  a  sale 
both  of  the  residuary  and  of  the  specifically  devised  real  estate  in 
the  event  of  the  personal  estate  proving  insufficient  for  the  payment 
of  the  testator's  debts  and  funeral  expenses. 

On  the  19th  of  July,  1870,  Sir  Robert  Harvey  died.  On  the  22d 
of  July  following,  tiie  firm  of  Harveys  &  Hudsons  was  adjudicated 
bankrupt. 

The  personal  estate  of  the  testator  proved  Insufficient  for  pay- 
ment of  his  debts,  and  an  application  was  made  for  a  sale  of  the 
real  estate.  Thereupon  the  persons  beneficially  interested  therein 
required  that  the  debt  due  to  Messrs.  Harveys  &  Hudsons  should 
be  proved  as  against  them,  and  the  question  whether  they  were 
entitled  to  require  such  proof  was  nov/  brought  before  the  court  on 
an  adjourned  summons. 

Mr.  Fry,  O.  C,  and  Mr.  Cozens-Hardy,  for  the  trustee  in  bank- 
ruptcy, pointed  out  that  In  this  case  the  executors  were  also  devisees 
in  trust,  and  urged  the  hardship  of  requiring  the  debt  to  be  estab- 
lished a  second  time,  the  question  having  been  decided  after  full  hear- 
ing, and  the  principal  witness  being  now  dead. 

Mr.  Chitty  and  Mr.  Maidlow,  for  the  persons  interested  in 
the  real  estate,  contended  that  the  judgment  was  against  the  execu- 
tors only,  and  could  not  be  enforced  at  law  against  the  real  estate 
of  the  testator;  that  the  devisees  were  clearly  entitled  to  have  the 
debt  established  as  against  them,  Willson  v.  Leonard,  3  Beav.  373; 
that  the   circumstances  of  the  executors  being  devisees  in  trust 

'"Part  of  the  statement  of  facts  is  omitted. 


520  JUDGMENT 

made  no  difTcrcncc.  Morse  v.  Tucker.  5  Hare  79;  that  as  to  the 
hardship  alleged  to  be  occasioned  by  the  death  of  Sir  R.  Harvey,  tlie 
executors  were  at  a  like  disadvantage  before  the  arbitrator. 

Lord  Romilly,  M.  R.  :  I  do  not  think  that  I  can  hold  the 
devisees  bound  by  the  judgment,  but  on  a  claim  made  in  a  suit 
such  as  this  I  think  I  have  jurisdiction  to  decide  on  which  side  the 
burden  of  proof  lies.  When  a  creditor  brings  in  a  claim  I  fre- 
quently order  an  action  to  be  brought  in  order  to  decide  the  matter; 
and  if,  after  the  action  has  been  tried  and  decided  against  the 
executor,  it  were  necessary  to  have  it  tried  over  again  against  the 
devisees  of  the  real  estate,  the  delay  would  be  endless.  I  tliink, 
therefore,  that  the  judgment  ought  to  be  prima  facie  evidence  of 
the  debt.  The  devisees  will  be  at  liberty  to  disprove  it,  if  they 
can ;  but  if  they  do  not,  I  shall  hold  the  debt  binding  against  tlie  real 
estate.''^ 

•^■'Between  the  real  and  personal  representatives  of  a  deceased  person 
there  is  no  privity.  Hence  a  judgment  against  an  administrator  or  executor 
i-;  never  conclusive  against  the  heirs  or  devisees."  Freeman  on  Judgments 
(4th  ed),  §  163;  Mason  v.  Peter,  i  Munf.  (Va.)  437  (1810)  ;  Osgood  v. 
Manhattan  Co.,  3  Cow.  (N.  Y.)  612,  15  Am.  Dec.  304  (1824);  Dale  v  Rose- 
z-elt  1  Paige  Ch.  (N.  Y.)  35  (1828)  ;  Collinson  v.  Owens,  6  Gill  &  J.  (Md.) 
4  (1833^  ;  Deneale  v.  Stump,  8  Pet.  (U.  S.)  528,  8  L.  ed.  1033  (1834)  ;  McCoy 
V  Nichols,  4  How.  (Miss.)  31  (1839)  ;  Thayer  v.  Mollis,  44  Mass.  (3  Mete.) 
369  (1841)  ;  Hacen  v.  Tillman,  5  N.  J.  Eq.  363  (1846)  ;  Stone  v.  ll^ood,  16  III. 
177  (18^4)  ;  Nichols  v.  Day,  32  N.  H.  133,  64  Am.  Dec.  358  (1855)  ;  Beckett  v. 
Selozrr,  7  Cal.  215,  68  Am.  Dec.  237  (1857)  ;  ingle  v.  Jones,  9  Wall.  (U  S.) 
486  19  L.  ed.  621  (1869)  ;  Sharpe  v.  Freeman,  45  N.  Y.  802  (1871)  ;  Lehman 
v  Bradley,  62  Ala.  31  (1878)  ;  Scott  v.  Ware,  64  Ala.  174  (1879)  ;  Starke  v. 
I'nison,  65  Ala.  576  (1880)  ;  Charles  v.  Spears,  9  Lea  (Tenn.)  725  (1882)  ; 
Watts  V.  Taylor,  80  Va.  627  (1885) ;  Clark  v.  Bettelhcim,  144  Mo.  258,  46  S.  W. 
135  (1898)  ;  Eayrs  v.  Nason,  54  Nebr.  143,  74  N.  W.  408  (1898)  ;  Howell  v. 
Huqhes,  168  Ala.  460,  S3  So.  105  (1910).  Contra,  by  statute,  Cunningham  v. 
Ashley,  45  Cal.  485  (1873)  ;  Mecks  v.  Olphcrts,  no  U.  S.  564,  25  L  ed.  735 
(1879  Cal.  Stat.)  ;  Merritt  v.  Daffin,  24  Fla.  320,  4  So.  806  (1888)  ;  Texas  6- 
P.  R.  Co.  V.  Smith,  91  Fed.  483  (1899  La.  Stat.)  ;  Hint  on  v.  Pntchard,  126 
N  Car.  8,  35  S.  E.  127  (1900)  ;  Gimn  v.  James,  120  Ga.  482,  48  S.  E.  148 
(1904)  ;  Po'iset  v.  Townsend,  166  111.  App.  384  (1911)-  Conversely,  a  judg- 
ment for  or  against  an  heir  or  devisee  does  not  bind  the  admmistrator,  ig 
Iowa  269  (1865)  ;  Douglass  v.  McCarer,  80  Ind.  91  (1881)  ;  Forbes  v.  Doug- 
lass, 175  Mass.  191,  55  N.  E.  847  (1900).  It  is  frequently  said  that  the  judg- 
ment is  prima  facie  evidence  against  the  heirs  or  devisees.  Garnett  v.  Macon, 
Fed.  Cas.  No.  524s.  6  Call  (Va.)  308,  2  Brock.  (U.  S.)  185  (1825)  ;  Sergeant 
v,  Ewina..  36  Pa.  St.  156  (i860)  ;  Steele  v.  Lineberger,  5^Pa.  St.  308(1868) 
HofMnsv^  Stoitt,  6  Bush  (Ky.)  37o  (1869)  Gibson  v.  Gibson,  82  111.  61 
(1876)  ;  Hobbs  v.  McMakin,  4  S.  W.  793,  9  Ky.  L.  221  (1887)  ;  Pauly.  Grimm, 
T«^P3_5t  330,  3R  Atl.  1017  (1898).  Contra:  Robertson  v.  Wright,  I7  Grat. 
f\  a  )  534  (18^ ;  Laidley  v.  Kline,  8  W.  Va.  218  (1875)  :  Board  v.  Calhhan, 
33  \V  Va  209  10  S.  E.  382  (1889)  ;  Burnham  v.  Burnham,  46  App.  Div.  513. 
62  N.  Y.  S.  120  (1900),  (affd.  165  N.  Y.  659,  59  N.  E.  1119)., 

Where  the  personal  representative  is  also  heir  or  sole  devisee  he  will  be 
bound  by  a  judgment  against  him  as  executor.  Stewart  v.  Montgomery,  23 
Pa  St  410  (1854)  ;  Colton  V.  Onderdonk,  69  Cal.  155,  10  Pac.  395.  58  Am. 
Rep.  556  (1886);  rn2UP"'"''"'"'f''  ^  Cnrhrnn.  1^6  Pa.  St.  .22^.  23  Atl.  203 
(1891)  ;  Donifelser  v.  Heyl,  7  Kans.  App.  606,  52  Pac.  468  (1898).  Contra: 
Merchant.';'  Nat.  Bank  v.  Good,  21  W.  Va.  455  (1883)  ;  Lanby  v.  Gill,  42  Misc. 
334,  86  N.  Y.  S.  718  (1904).  ,  ,  _.  .„  , 

Generally,  a  judgment  against  the  personal  representative  will  be  con- 
clusive upon  legatees,  as  the  personalty  is  the  primary  fund  for  the  payment 
of  debts.    Castellaw  v.  Guilmartin,  54  Ga.  299  (1875)  ;  Harris  v.  Bryant,  83 


COAD   V.    COWIIICK  621 

SECTION  8.    LIEN  OF  JUDGMENTS 

COAD  V.  COWHICK 

Supreme  Court  of  Wyoming,  1910 
9  Wyo.  316 

On  reserved  question  from  the  District  Court  of  Laramie  County. 

Mark  M.  Coad  on  September  14,  1888,  recovered  a  judgment 
against  Oscar  F.  Cowhick  upon  which  a  balance  remained  unpaid. 
On  June  18,  1891,  J.  Y.  Cowhick  died,  seized  of  the  real  estate  in  con- 
troversy, leaving  Oscar  F.  Cowhick  as  one  of  his  heirs  at  law. 
On  August  15,  1 89 1,  Oscar  F.  Cowhick  conveyed  to  Marshall  Field 
&  Company  all  his  interest,  as  heir  at  law  of  said  decedent,  in  his 
estate.  On  August  29,  1891,  Coad  issued  execution  on  his  judgment 
levied  on  said  real  estate  and  became  the  purchaser  at  sheriff's  sale. 
The  question  was  whether  the  judgment  rendered  in  the  district 
court  became  a  lien  on  the  after-acquired  real  estate  of  the  judg- 
ment debtor.'^- 

Corn,  J. :  The  sole  question  submitted  in  this  case  is  whether, 
in  this  state,  a  judgment  of  the  district  court  is  a  lien  upon  after- 
acquired  lands.  Our  statute  upon  the  subject  is  as  follows:  Section 
3828,  "Lands  and  tenements,  including  vested  interests  therein,  and 
permanent  leasehold  estates,  renewable  forever,  and  goods  and  chat- 
tels not  exempt  by  law,  shall  be  subject  to  the  payment  of  debts,  and 
shall  be  liable  to  be  taken  on  execution,  and  sold  as  hereinafter 
provided." 

Section  3829.  "Such  lands  and  tenements,  within  the  county 
where  the  judgment  is  entered,  shall  be  bound  for  the  satisfaction 
thereof  from  the  first  day  of  the  term  at  which  judgment  is  ren- 
dered; but  judgments  by  confession,  and  judgment  rendered  at  the 
same  term  at  which  the  action  is  commenced,  shall  bind  such  lands 
only  from  the  day  on  which  such  judgments  are  rendered;  and  all 
other  lands,  as  well  as  goods  and  chattels  of  the  debtor,  shall  be 
bound  from  the  time  they  are  seized  in  execution." 

N.  Car.  568  (1880);  Mauldin  v.  Gossett,  15  S.  Car.  565  (1881)  ;  Martin  v. 
Ellerhe,  70  Ala.  326  (1881)  ;  Eraser  v.  Charleston,  19  S.  Car.  384  (1882)  ; 
Hooper  v.  Hooper,  32  W.  Va.  526,  9  S.  E.  937  (1889)  ;  Ward  v.  Durham,  134 
111.  195,  25  N.  E.  745  (1890)  ;  Carey  v.  Roosevelt,  81  Fed.  608  (1897)  ;  Hansen 
E.  F.  E.  V.  Teaboiit,  104  Iowa  360,73  N.  W.  875  (1898).  But  it  has  been  held 
that  a  judgment  against  the  executor  is  not  conclusive  upon  legatees  so  far  as 
their  legacies  are  charged  upon  and  payable  out  of  realty.  Eirst  Baptist 
Church  V.  Syms,  51  N.  J.  Eq.  363,  28  Atl.  461  (1893).  And  one  of  two  claim- 
ants to  a  specific  legacy  was  held  not  bound  by  a  judgment,  to  which  he  was 
not  a  party,  recovered  by  the  other  cliamant  against  the  executors  of  the  will. 
Weeks  V.  Weeks,  16  Abb.  N.  Cas.  (N.  Y.)  143,  52  Super.  Ct.  512  (1885),  and 
see  Shipman  v.  Rollins,  98  N.  Y.  311,  15  Abb.  N.  Cas.  288  (1885). 
314  (1889)  ;  Tolcr  v.  East  Tennessee  &c.  Co.,  67  Fed.  168  (1894)  ;  Woods  v. 
'"The  statement  of  facts  is  abridged  and  the  arguments  of  counsel  and 
part  of  the  opinion  omitted. 


t)jj  JUDGMENT 

At  common  law.  except  for  debts  due  the  kinj::,  the  lands  of  the 
debtor  were  not  liable  to  the  satisfaction  of  a  judj^ment  against  him, 
and  consoiiuentlv  no  lien  thereon  was  acciuircd  i)y  a  judgment.  But 
by  tiie  Statute  \\'estm.  II,  13  Edw.  i,  the  judgment  creditor  was 
given  his  election  to  sue  out  a  writ  of  fi.  fa,  against  the  goods  and 
chattels  of  the  defendant,  or  else  a  writ  commanding  the  sheriff  to 
deliver  to  him  all  the  chattels  of  the  defendant,  except  oxen  and 
beasts  of  the  plow  and  a  moiety  of  his  lands  until  the  debt  should 
be  levied  by  a  reasonable  price  and  extent.  When  the  creditor  chose 
the  latter  alternative,  his  election  was  entered  on  the  roll,  and  hence 
the  writ  was  denominated  an  elegit.  Hutchcson  v.  Gruhhs,  80  Va. 
254.  While  this  statute  did  not  in  direct  terms  create  the  lien,  courts 
so  construed  it  as  to  infer  a  lien  from  the  power  to  take  the  lands 
in  execution."  Scriba  v.  D canes,  i  Brock.  (C.  C.)  170.  And  this 
lien  has  been  held  by  the  English  courts  and  by  the  almost  unani- 
mous opinion  of  tlie  courts  oi  this  country,  to  extend  to  the  after- 
acquired  land?  of  the  debtor.  Most  of  the  states  have  enacted  stat- 
utes declaring  the  lien,  and  almost  without  exception,  and  witliout 
regard  to  whether  such  statute  in  terms  extended  the  lien  to  after- 
acquired  lands,  they  have  held  that  such  lands  were  bound  by  the 
judgment  from  the  time  of  their  acquisition  by  the  debtor.  Freeman 
on  Judgments,  367.  So  far  as  I  can  find,  the  only  two  exceptions 
are  Pennsylvania  and  Ohjo-  There  was  also  a  similar  holding  in 
Iowa.  Hmrlngton  v.  Sharp,  I  Green  (Iowa)  131.  But  the  rule  laid 
down  in  that  case  was  subsequently  changed  by  an  amendment  to 
the  statute  expressly  providing  that  judgments  should  be  a  lien 
upon  after-acquired  lands,  thus  bringing  it  into  line  with  the  mass  of 
opinion  in  this  country.  Ji'are  v.  Delahaye,  95  Iowa  682.  The  Mis- 
sissippi court  is  also  cited  as  adopting  the  same  construction.  But 
an  examination  of  the  cases  shows  that  that  court  simply  rejected 

"Accord:  Jones  v.  Jones,  i  Bland  (Md.)  443,  18  Am.  Dec.  327  (1827)  ; 
Coomhs  V.  Jordan,  3  Bland  (Md.)  284,  22  Am.  Dec.  236  (1831)  ;  United 
States  V.  Morrison,  4  Pet.  (U.  S.)  124,  7  L.  ed.  804  (1830)  ;  Burton  v.  Snnth, 
13  Pet.  (U.  S.)  464,  10  L.  ed.  248  (1839)  ;  Massingill  v.  Doivns,  7  How.  (U.  S.) 
760  12  L.  ed.  903  (1849)  ;  Hntcheson  v.  Grubbs,  80  Vt.  251  (1885)  ;  Morsell 
V.  First  Nat.  Bank,  91  U.  S.  357,  23  L.  ed.  436  (1875)  ;  Anderson  v.  Taylor  6 
Lea  (Tenn.)  382  (1880)  ;  Converse  v.  Michigan  Dairy  Co.,  45  Fed.  18  (1891)  ; 
McMillan  v.  Davenport,  44  Mont.  23,  118  Pac.  756  (1911)- 

In  England  a  judgment  does  not  operate  as  a  charge  on  land  unless  a 
writ  or  order  for  its  enforcement  is  registered  in  the  Land  Registry  under 
the  acts  of  1888  (51  &  52  Vict.  ch.  51  §  2),  and  1900  (63  &  64  Vict.  ch.  26 
§  2\  and  ceases  to  have  effect  at  the  expiration  of  five  years  from  date  of 
registration  unless  renewed  for  a  further  period  of  five  years.  Hood  v. 
Cathcart,  L.  R.  (1895),  2  Ch.  Div.  411-  ,      ,        •    j  i.  „ 

Statutes  in  the  American  states  generally  provide  that  judgments  shall 
be  a  lien  on  land  for  a  prescribed  term  of  years.  See  New  York  Code  of 
Civil  Procedure,  §  1251 ;  Aultman  &  Taylor  Co.  v.  Syme,  163  N.  Y.  54,  57 
N.  E.  168,  79  Am.  St.  565  (1900);  Belfer  v.  Ludlow,  143  App.  Div.  147.  127 
N.  Y.  S.  623  (1911);  California  Code  of  Civil  Procedure,  §671;  3  Comp. 
Stat,  of  New  Jersey  (1910)  2956;  Bogert  v.  Lydecker,  45  N.  J.  L.  314  (1883)  ; 
Pennsylvania  acts  of  April  4.  1798,  3  Sm.  L.  2M.  §  2;  June  I,  1887,  P.  L.  289, 
5  I  2'P.  &  L.  big.  (2d  ed.)  4201^4206;  l^nnk  of  N.  America  v.  FiLzsuncms, 
3  BinnrnPa.)  342  (1811)  ;  Miller  v.  Miller  147  Pa.  St.  _^48.  23  Atl.  841  (1892)  ; 
^nrUunTsAppeal,  91  Pa.  St.^85  Ci»74)  ;  Stealer  vTSchall,  209  Pa.  526.  58  Atl. 
gi2  (.1OO4J.  "* 


COAD   V.    COWHICK  623 

the  contention  that  lands  subsequently  acquired  were  bound  from 
the  date  of  the  judgment,  and  held  that  "the  lien  attached  on  after- 
acquired  property  from  the  time  it  was  acquired  by  the  debtor." 
Moody  V.  Harper,  25  Miss.  492 ;  Cayce  v.  Stoval,  50  Miss.  402. 

But  it  is  contended  that  our  legislature  having  adopted  the  lan- 
guage of  the  Ohio  statute,  we  are  bound  by  the  construction  given 
to  it  by  the  Ohio  courts.  The  case  of  Roads  v.  Symmes,  i  Ohio  314, 
which  settled  the  law  in  that  state,  is  not  a  construction  of  the  stat- 
ute under  consideration,  but  is  an  exposition  of  the  rule  at  the  com- 
mon law  or  under  the  statute  of  Westm.  II.    The  court  deem  it 
unnecessary  to  decide  whether  it  was  a  maxim  of  the  common  law  or 
was  first  introduced  by  the  statute  of  Westm,  II,  as  they  say  both 
are  equally  the  law  in  Ohio.    And  the  decision  is  expressly  based 
upon  the  reasoning  in  the  Pennsylvania  case  of  Colhoun  v.  Snider, 
6JBirL^j(JPa4^i45.   But  tlie  decision  in  the  Pennsylvania  case  fs  not 
based  upon  the  common  law  nor  the  statute  of  Westm.  II.    The 
author  of  Freeman  on  Judgments  says  of  that  decision:   "As  long 
ago  as  the  year  181 3,  in  the  case  of  Colhoun  v.  Snider,  the  judges 
in  Pennsylvania,  in  deference  to  a  long  course  of  decisions  in  that 
state,  were  constrained  to  decide  that  no  judgment  could  ever  at- 
tach as  a  lien  upon  lands  in  which  the  judgment  debtor  had  no  in- 
terest at  the  date  of  its  rendition.   The  judge  delivering  this  opinion 
at  the  same  time  said :  'I  am  well  satisfied  that  by  the  English  com- 
mon law  lands  purchased  by  the  defendant,  after  judgment,  but 
aliened  before  execution,  were  bound  by  the  lien.'  Forty-seven  years 
later  it  was  said  in  the  same  state  that,  'whatever  may  be  thought 
of  the  doctrine  of  Colhoun  v.  Snider,  that  a  judgment  lien  does  not 
bind  after-acquired  real  estate,  it  is  too  firmly  established  in  the 
jurisprudence  of  this  state  to  be  shaken  at  tliis  day.'  Waters^  A^eal, 
35^a^_St_^23.  The  rule  thus  established  in  Pennsylvania,  and  con- 
fesse3Ty~repugnant  to  the  common  law,  was  adopted  in  a  few  other 
American  cases.   It  is,  nevertheless,  clearly  repudiated,  in  favor  of 
the  common-law  rule,  by  the  vast  majority  of  tlie  American  decisions 
declaring  judgments  to  be  liens  upon  real  property  acquired  by  the 
defendant,  after  their  rendition."    Freeman  on  Judgments,  section 
367.    The  Ohio  court  in  1829,  in  Stiles  v.  Murphy,  4  Ohio  92,  re- 
affirmed the  doctrine  as  laid  down  in  Roads  v.  Symmes.    But  while 
they  construe  the  statute  tlien  in  force  in  that  state,  they  base  their 
decision  upon  Roads  v.  Symmes,  and  they  say  in  conclusion,  "That 
decision  may  have  been  an  innovation  upon  established  principles  of 
law.    It  may  have  been  a  departure  from  true  policy,  under  the 
circumstances  in  which  we  are  placed.   But  it  would  be  a  more  dan- 
gerous innovation,  and  a  wider  departure  from  true  policy  now 
to  disturb  it." 

The  decisions  in  Pennsylvania  and  Ohio,  as  before  observed,  are 
substantially  conceded  by  the  courts  of  those  states  to  have  been 
erroneous,^  and  are  only  adhered  to  under  the  rule  of  stare  decisis. 
That  rule  is  not  in  any  measure  persuasive  with  us,  the  question  not 
having  been  passed  upon  before  by  this  court,  and  no  such  rule  of 
property  having  been  established  in  this  state.  Most  of  the  states 
have  enactments  similar  to  our  own,  to  which  they  have  given  a 


6j4  judgment 

construction  cxtcncHnj::  the  lion  lo  aftcr-acciuircd  lands,  and  this  was 
the  prevailing  construction  lonj^  prior  to  the  adoption  of  the  statute 
bv  us. 

Our  conclusion  is,  therefore,  that,  having  adopted  the  statute  of 
Wcstm.  II  into  the  legislation  of  this  state,  wc  adopted  the  con- 
struction given  to  it  with  substantial  unanimity  by  the  courts  of  Eng- 
land and  this  country,  that  the  lien  of  the  judgment  attaches  to  the 
after-aciiuired  lands  of  the  debtor.  And  that  our  enactment  upon 
the  subicct  was  framed  for  the  purpose  of  adapting  that  statute  to 
our  conditions  by  defining  the  territorial  limits  of  the  lien  existing 
bv  force  of  it,  and  not  to  change  the  character  or  extent  of  the  lien 
in  any  other  respect.'^* 

r'ottcr,  C.  J.,  and  Knight,  J.,  concur. 

'* Accord:  Brace  v.  Duchess  of  Marlhorough,  2  P.  Wms.  491  (1728); 
Sudgen  on  Vendors  (8th  Amer.  ed.)  vol.  II,  p.  156;  Harris  v.  Rankin,  4 
Manitoba  115  (18S7)  ;  McClnrc  V.  Crotcaii,  18  Quebec  Super.  Ct.  336  (1900)  ; 
Kidgcly  v.  Garicll,  3  H.  &  McH.  (Md.)  449  (i796)  ;  Stow  v.  Tifft,  15  Johns. 
438,  8  Am.  Dec.  266  (1818)  ;  Ridge  v.  Prathcr,  i  Blackf.  (Ind.)  401  (1825)  ; 
Den  ex  dcm.  Green  v.  Stcelman,  10  N.  J.  L.  193  (1828)  ;  Jackson  v.  Bank  of 
U.  S.,  5  Cranch  (C.  C.)  i,  Fed.  Cas.  No.  7131  (1836);  McClung  v.  Beirne, 
\o  Leigh  (Va.)  394,  34  Am.  Dec.  739  (1839)  ;  Chapron  v.  Cassaday,  3  Humph. 
(Tenn.)  661  (1842)  ;  Trustees  Real  Estate  Bank  v.  Watson,  13  Ark.  74 
(1852)  ;  Harrison  v.  Roberts,  6  Fla.  71 1  (1856)  ;  Steele  v.  Taylor,  i  Minn.  274 
(Gil.  210)  (1856)  ;  Ralston  v.  Field,  32  Ga.  aS2>  (1861)  ;  Wales  v.  Bogne,  31 
111.  464  (1863)  ;  Handly  v.  Sydenstricker,  4  W.  Va.  605  (1871)  ;  Thulemeyer 
V  Jones,  37  Tex.  560  (1872)  ;  Cayce  v.  Stovall,  50  Miss.  396  (1874)  ;  Babcock 
V.  Jones,  1=;  Kan.  296  (1S75);  Campbell  v.  Martin,  87  Ind.  S77  (1882);  Ex 
parte  Trenholm,  19  S.  Car.  126  (1882)  ;  Dickson  v.  Hynes,  36  La.  Ann.  684 
(1S84)  ;  Duell  V.  Potter,  si  Nebr.  241,  70  N.  W.  932  (1897)  ;  Dessert  v.  Sieber- 
ling,  ^9  Nebr.  309,  80  N.  W.  900  (1899)  ;  Wamble  v.  Cant,  112  Tenn.  327,  79  S. 
W.  801  (1903);  Glenn  Morris  Co.  v.  McColgan,  100  Md.  479.  60  Atl.  608 
(190s)  ;  N.  Y.  Code  Civ.  Pro..  §  1251 ;  Cal.  Code  Civ.  Pro.,  §  671.  Contra: 
Riindle  V.  Ettivein.  2  Yeates  (Pa.)  23,  6  Binn  I37n  (i795)  ;  Colhounv  Snider, 
6"Binn.  (Pa.)  13 S  (1813)';  Roads  V.  Symmes,  I  Ohio  281,  13  Am.  Dec.  52T 
( 1824)  ;  McCormick  v.  Alexander,  2  Ohio  65  (1825);  Stiles  v.  Murphy,  4 
Ohio  92  (1829)  ;  EnrJ^r's  AppeaLfiJE?!  St  777  i;  1847)  ;  Leaji^g^kin^  7 
Pa  St.  492  (1848)  ;  Aloorehead  v.  McKinney,  9  Pa.  St.  265  (1848)  ;  Jacob's 
AfpcalT^S  Pa.  St.  477  (T8U)  !  Ross  ^^-Crts^TFcat.  106  Pa.  St.  82  (1884)  ; 
Smdhv.  Elogg.  52  Ohio  St.  527,  40  N.  E.  406  (1895)  ;  Elerrman  Sazv  Mill  Co. 
V.  Martin,  22  Kv.  L.  651,  58  S.  W.  524  (1900)  :  Br\anji^Jjmes^&.LauMib^^ 
vS7££/_C£.^28_Pkj2i. '85  Atl.  1089  (1913)-  The  same  rule  prevailed  in  Iowa. 
Harrington  v.  Sharp,  I  Greene  (Iowa)  131,  48  Am.  Dec.  365  (1848)  ;  Woods 
V.  Mains,  l  G.  Greene  (Iowa)  27s  (1848)  until  altered  by  the  Code,  §  3801; 
Ware  v.  Delabaye,  95  Iowa  667,  64  N.  W.  640  (1895).  In  Illinois,  where  an 
execution  is  issued  on  a  judgment  within  a  year  from  its  rendition,  the  judg- 
ment will  become  a  lien  on  after-acquired  realty;  if  no  execution  is  issued 
within  the  year  no  lien  will  exist.  Breed  v.  Gorham,  108  111.  81  (1883),  and 
see  Winter  v.  Diinlap,  84  Kan.  519,  114  Pac.  1057  (1911)- 

Several  judgments  entered  at  different  times,  if  they  become  a  hen  on 
after-acquired  realtv,  attach  together  and  all  stand  on  an  equal  footing, 
Goetz  V.  Mott,  21  Abb.  N.  Cas.  246,  i  N.  Y.  S.  153,  iS  Civ.  Proc.  R.  11  (1888)  ; 
In  re  Hazard,  73  Hun  22,  25  N.  Y.  S.  928,  56  N.  Y.  St.  Rep.  82  (1893)  ; 
Moore  v.  Jordan,  117  N.  Car.  86,  23  S.  E.  259,  42  L.  R.  A.  209,  .S3  Am.  St.  570 
C180;)  ;  Kisterton  v.  Tate,  94  Iowa  663,  63  N.  W.  350,  58  Am.  St.  419  (1893)  ; 
Belknap  v.  Greene,  36  S.  Car.  119,  34  S.  E.  26  (1899)-  Contra:  Creighton  v. 
Leeds  &c.  Co.,  9  Ore.  213  (1881).  And  see  Elston  v.  Castor,  loi  Ind.  426,  51 
Am.  Rep.  754  (1884)  ;  Sherrard  v.  Johnston,  IQ.^  Pa.  St.  166,  44  Atl.  252,  74 
Am.  St.  680  (1899). 


INDEPENDENT   SCHOOL   DIST.    &C.    V.    WERNER  625 

INDEPENDENT  SCHOOL  DISTRICT  OF  WEST  POINT  v. 

WERNER 

Supreme  Court  of  Iowa,  1876 
43  lozva  643 

The  Independent  School  District  of  West  Point,  plaintiff  and 
appellant,  avers  in  its  petition  that  it  obtained  judgment  against 
the  defendant,  and  one  Charles  Peters  and  others,  on  which  an 
execution  issued  and  was  returned:  "no  property  found  of  defend- 
ant's." Afterwards  plaintiff  brought  a  suit  in  equity  against  the  said 
Charles  Peters  and  others,  for  tlie  purpose  of  subjecting  to  the 
payment  of  said  judgment  certain  land  to  which  it  was  averred 
that  said  Charles  Peters  formerly  held  title,  but  which  he  had  fraud- 
ulently conveyed  to  the  other  persons  made  parties  defendant  to  that 
suit.  Decree  was  rendered  in  favor  of  the  plaintiff.  The  judgment 
was  established  as  a  lien  on  the  land,  and  a  special  execution  was 
ordered  to  be  issued  and  levied  on  the  same,  which  was  done. 

Afterward,  and  before  sale  this  suit  was  brought.  The  petition 
avers,  in  addition  to  the  facts  above  set  forth,  that  Wm.  Werner, 
the  defendant  in  this  suit,  entered  upon  the  said  land  by  himself 
and  servants  since  the  date  of  the  decree,  and  cut  wood  and  carried 
off  the  same,  and  tliat  a  portion  of  the  wood  so  cut  still  remains 
on  the  land;  that  the  defendant  then  had  several  hands  chopping 
wood  on  said  land,  for  the  purpose  of  removing  the  same,  and 
was  greatly  depreciating  the  value  of  said  land,  and  impairing  the 
plaintiff's  security  and  liens  thereon ;  and  the  petition  prays  that  the 
defendant  be  restrained  from  the  further  chopping  of  wood  on 
said  land  and  from  removing  the  wood  already  chopped. 

The  answer  admits  the  decree;  avers  that  defendant  had  con- 
trol of  the  land  for  twenty-four  years,  during  which  time  he  had 
paid  taxes  and  cut  from  it  his  fire-wood  and  fence  posts;  admits 
that  there  were  several  cords  of  fire-wood,  some  fence  posts  and 
rails  cut  and  remaining  on  said  land,  but  avers  that  they  were  cut 
before  the  decree  was  rendered,  and  denies  that  he  has  removed 
wood  since  the  decree,  and  denies  that  any  one  has  done  so  for  him. 

The  defendant  moved  for  a  dissolution  of  the  injunction.  The 
motion  was  sustained  and  the  plaintiff"  appeals,'^^ 

Adams,  J. :  At  the  time  of  tlie  alleged  cutting  and  removal  of 
wood  and  timber,  no  decree  has  been  rendered  in  favor  of  the 
plaintiff.  At  that  time  the  plaintiff  was,  at  most,  a  mere  judgment 
lien  holder.  Plaintiff  had,  it  is  true,  brought  suit  in  equity  to  set 
aside  the  title  of  those  in  whom  it  stood  of  record,  but  no  attach- 
ment had  issued  and  no  levy  had  been  made.  "A  judgment  lien 
on  land  constitutes  no  property  or  right  in  the  land  itself;  it  only 
confers  a  right  to  levy  on  the  same  to  the  exclusion  of  other  adverse 
interests  subsequent  to  the  judgment."  Rodgers  v.  Bonner,  45  N. 
Y-  379- 

"Part  of  the  ooinion  is  omitted. 
40 — Civ.  Prog. 


(')j6  judgment 

A  iudj^jiicnt  debtor,  therefore,  has  a  right  to  cut  fire  wood  and 
timber  uihmi  his  hniul  previous  to  a  levy,  and  it  follows  that  such 
wood  ami  timber  cut,  but  not  removed,  become  his  personal  prop- 
erty, and  do  not  pass  by  a  levy  upon  and  sale  of,  the  land. 

We  think  the  injunction  was  properly  dissolved.^'^ 

Affirmed. 


MAY  V.  EMERSON 
Supreme  Court  of  Oregon,  1908 

52  Ore.  262 

This  is  an  action  of  ejectment,  commenced  on  October  23,  1907, 
to  recover  the  possession  of  lots  35  and  36,  In  block  11,  Stewart's 
second  addition  to  Baker  City.  The  answer  admits  that  defendant 
is  in  possession,  and  alleges  that  he  is  owner  of  the  lots  in  fee  sim- 
ple ;  and  as  a  second  defense  alleges  possession  under  a  contract  of 
purchase,  as  disclosed  in  the  stipulation  of  facts  which  includes  the 


"Accord:  Lannlng  v.  Carpenter,  48  N.  Y.  408  (1872).  So,  while  ma- 
chinery sold  to  the  debtor  may  become  affixed  to  the  realty  so  as  to  be  sub- 
ject to' the  judgment  lien,  the  lien,  alone,  gives  the  judgment  creditor  no  right 
of  possession.  Rajnwnd  v.  Schoonoverj  181  Pa.  St-  352,  37  Atl.  524  (1897). 
And,  so  long  as  a  debtor  uses  his  property  for  ordinary  purposes,  he  can  not 
be  impeached  for  waste.  Hoskin  wVVoodzvard,  45  Pa.  St.  4^  (1863).  But  a 
debtor  wasting  the  property  in  fraud  of  creditors  will  be  liable"  in  an  action  on 
the  case,  Yates  v.  Joyce,  11  Johns.  (N.  Y.)  136  (1814)  ;  Christian  v. _  Mills, 
2Walk.  (Pa/)  mo,  i6  W.  N.  Cac  ,^Qt  (1885),  or  may  be  restrained  by  i'njunc- 
HorT  IVitmcr's  AppeaLl^  Fa.  St^'^.  84  Am.  Dec.  505  (1863). 

In  Conrad  v.  Atlantic  Insurance  Co.,  I  Pet.  (U.  S.)  386,  7  L.  ed.  l8g 
(1828),  at  p.  442,  it  is  said  by  Stor\',  J.:  "It  is  not  understood  that  a  general 
lien  by  judgment  on  land  constitutes,  per  se,  a  property,  or  right,  in  the  land 
itself.'  It  only  confers  a  right  to  levy  on  the  same,  to  the  exclusion  of  other 
adverse  interests,  subsequent  to  the  judgment;  and  when  the  levy  is  actually 
made  on  the  same,  the  title  of  the  creditor,  for  this  purpose,  relates  back  to 
the  time  of  his  judgment  so  as  to  cut  out  intermediate  incumbrances.  *  *  _  * 
In  short,  a  judgment  creditor  has  no  jus  in  re,  but  a  mere  power  to  make  its 
general  lien  effectual,  by  following  up  the  steps  of  the  law,  and  consummating 
his  judgment  by  an  execution  and  levy  on  the  land."  See  also.  Finch  v.  Earl 
of  iVinchelsea,  i  P.  Wms.  277  (1715);  Brace  v.  Duchess  of  Marlborough, 
2  P.  Wms.  491  (1728)  ;  Ladd  v.  Blunt,  4  Mass.  402  (1808)  ;  Shepard  v.  Roivc, 
14  Wend.  (N.  Y.)  260  (1835)  ;  Petit  v.  Shepherd,  5  Paige  (N.  Y.)  493,  28 
Am.  Dec.  437  (1835)  ;  Cover  v.  Black.  I  Pa.  St.  493^  (1845)  ;  Kollock  v.  Jack- 
son, 5  Ga.  153  (1848)  ;  Reed'sAbhcal.\x  Pa.  St.  47T,f  18^0')  ;  Whiting  &  Slark 
V.  Beebe,  12  Ark.  421  (1851),  at  p.  542;  Swarts  v.  Stees,  2  Kans.  236,  85  Am. 
Dec.  588  (1864)  ;  Broivn  v.  Pierce,  7  Wall.  (U.  S.)  205,  19  L.  ed.  134  (1868) ; 
I^reveineycr  V.  Southern  Mut.  Ins.  Co..  62  Pa.  St,  340,  i  Am.  Rep.  420  (1869), 
where  a  judgment  creditor  was  held  not  to  have  an  insurable  interest  in 
specific  property;  Rogers  v.  Bonner,  45  N.  Y.  379  (1871)  ;  Foute  v.  Fairman, 
48  Miss.  536  (1873)  ;  Ashton  v.  Slater,  19  Minn.  347  (1872)  ;  Dyson  v.  Sim- 
mons, 48  Md.  207  (1877)  ;  Mansfield  v.  Gregory,  11  Nebr.  297,  9  N.  W.  87 
(1881);  Bruce  v.  Nicholson,  109  N.  Car.  202,  13  S.  E.  790,  26  Am.  St.  562 
(1891)  ;  fiqhfy  rm,tifryn,rii\  Af  F  I  Cn  Kto  Pn  St  ^TO.  32  Atl.  439,  47 
Am.  St.  904  (1895)  ;  Fulkerson  v.  Stiles,  156  Cal.  703,  105  Pac.  966,  26  L.  R.  A. 
(N.  S.)  181  (1909)  ;  Huff  v.  Sweetser,  8  Cal.  App.  689,  97  Pac.  705  (1908)  ; 
Hunter  v.  Citi.zens  S.  &  T.  Co.,  157  Iowa  168,  138  N.  W.  475  (1912)  ;  Apple 
V.  Robb,  54  Ind.  App.  359,  103  N.  E.  12  (1913)- 


MAY  V.    EMERSON  627 

following:  That  on  February  24,  1906,  defendant  purchased  the 
lots  from  Dugan  and  wife,  the  price  to  be  paid  in  monthly  install- 
ments, continuing  over  a  period  of  more  than  a  year;  that  a  deed 
was  executed  by  Dugan  and  wife,  and  deposited  in  escrow  with 
M.  S.  Hughes,  to  whom  payments  were  made,  and  was  to  be  deliv- 
ered by  Hughes  when  the  payments  were  completed;  that  the  de- 
fendant was  to  have  possession  from  the  date  of  the  purchase ;  that 
on  April  12,  1906,  after  the  purchase  and  before  tlie  delivery  of  the 
escrow  deed,  plaintiff,  in  an  action  of  debt  against  Dugan  and  wife, 
attached  the  said  lots,  which  action  resulted  in  judgment  against 
them  on  April  25,  1906;  that  an  execution  sale  of  said  lots  was  had 
on  June  12,  1906,  and  confirmation  thereof  was  had  on  June  22, 
1906,  and  a  sheriff's  deed  issued  to  the  plaintiff  on  June  27,  1907, 
that  plaintiff,  at  the  time  of  the  attachment,  had  knowledge  of  the 
contract  of  sale  and  escrow  deed,  and  on  July  15,  1906,  notified  the 
defendant  of  said  judgment  and  execution  sale,  and  demanded  that 
payment  of  the  purchase  price  be  made  to  him ;  that  defendant  paid 
all  the  installments  of  the  said  purchase  price  to  Hughes,  according 
to  the  agreement,  and  received  the  deed  from  him  on  or  about  Sep- 
tember 14,  1907.  From  these  facts  the  trial  court  found  that  plaintiff 
acquired  the  title  to  the  property  free  from  any  equity  of  the  defend- 
ant, and  rendered  judgment  accordingly,  and  the  defendant  ap- 
peals.''' 

Eakin,  J.:  It  is  beyond  controversy  that  the  title  remains  in 
tlie  vendor  until  the  actual  delivery  of  the  deed.  The  vendor  still 
has  not  only  the  legal  title,  but  also  an  interest  in  the  property  as 
security  for  the  payment  of  the  purchase  price;  and  this  interest 
should  be  and  is  available  to  a  creditor  through  the  lien  of  his  judg- 
ment, which  lays  hold  of  such  legal  title,  and  thereafter  pa3'ments 
made  to  the  vendor  by  the  vendee  are  at  his  peril.  Tomlinson  v. 
Blackburn,  37  N.  Car.  509.  If  the  purchase  price  is  fully  paid, 
although  the  deed  is  not  actually  delivered,  the  vendor  having  but  the 
naked  legal  title,  the  judgment  creditor  can  acquire  no  more.  Sfannis 
V.  Nicholson,  2  Ore.  332;  Riddle  v.  Miller,  19  Ore.  468;  Riddle's 
App_eal,  lo^Pa.  i^ij  Uhl  v.  May,  5  Nebr.  157;  Elwell  v.  HitcJicocF, 
41  Katis.  "130!^ 

But  to  the  extent  of  the  unpaid  purchase  price  the  creditor's 
lien  will  bind  the  property.  Kinports  v.  Boynton,  120  Pa.  306; 
Lefferson  v.  Dallas,  20  Ohio  St.  68,  and  until  the  delivery  of  the 


"Part  of  the  opinion  of  the  court  is  omitted. 

'^Accord:  Finch  v.  Winchelsea,  I  P.  Wms.  277  (1715)  ;  Prior  v.  Penprase, 
4  Price  99  (1817)  ;  Manley  v.  Hunt,  i  Ohio  257  (1824)  ;  Hoagland  v.  Latoxir- 
ctte,  2  N.  J.  Eq.  254  (1839)  ;  Lounshury  v.  Piirdy,  li  Barb.  (N.  Y.)  490 
(1851)  ;  Thomas  v.  Kennedy,  24  Iowa  397,  95  Am.  Dec.  740  (1868)  ;  Adickes 
V.  Lowry,  15  S.  Car.  128  (1880)  ;  Hurt  v.  Prillman,  79  Va.  257  (1884)  ;  Davey 
V  Ruffell.  162  Pa-St.  443,  29  Atl.  894  (1894)  ;  Gibbs  v.  Tiffany,  d  Pa.Super. 
Lt.  2«  (1897)  ;  Hecker  v.  Moiirer.  8  Pa.  Super.  Ct.  4^  (1808)  :  Dalrvmble  v. 
Security  Imp.  Co.,  11  N.  Dak.  65,  88  N.  W.  1033  (1902)  ;  Fleming  v.  Wilson, 
92  Minn.  303,  loo  N.  W.  4  (1904)  ;  McClecry  v.  Stoiip,  32  Pa  Super  Ct.  42 
(1906)  ;  Adams  v.  White,  40  Okla.  535,  I39  Pac.  514  (1914).  Contra:  Kobert- 
son  V.  Wood,  5  La.  Ann.  197  (1850);  Buchanan  v.  Kimes,  2  Baxt.  (Tenn.) 
275  (1872). 


628  JUDGMF-XT 

escrow  deed  tlic  rights  and  remedies  of  the  creditors  of  tlie  vendor 
are  the  same  as  in  the  case  of  an  executory  sale,  evidenced  by  a 
bond  for  a  deed.  In  both  cases  the  vendee  has  but  an  equitable 
interest  in  the  property,  and  the  legal  title  remains  in  the  vendor; 
and  where  the  escrow  agreement  requires  the  vendee  to  make  pay- 
ments to  the  depositary,  he  being  a  mere  stakeholder,  without  any 
personal  interest  in  the  fund,  the  vendee  is  only  bound  to  pay  to 
him,  while  the  grantor  alone  is  the  party  in  interest.  But  when  a 
creditor  of  the  grantor  has  laid  hold  of  his  interest  in  the  property, 
and  the  grantee  has  notice  of  that  fact,  he  is  bound  by  the  new 
conditions.  However,  the  docketing  of  the  judgment  is  not  con- 
structive notice  to  him.  He  is  not  bound  to  search  the  records 
every  time  he  makes  a  payment.  He  is  entitled  to  the  benefit  of  all 
payments  made  to  the  vendor  until  he  has  actual  knowledge  of  the 
lien.  Freeman,  Judgments,  section  364;  i  Black.,  Judgments,  sec- 
tion 438;  17  A.  &  E.  Encyc.  of  Law  (2d  ed.)  780;  Wehn  v.  Fall,  55 
Nebr.  547;  Tayloev.  Thompson,  5  Pet.  (U.  S.)  357;  Moy^-r  v.  Hin- 
luan,  13  N.  Y.  180;  Hampson  v.  Edelen,  2  Har.  &  John.  (Md.)  64; 
Parks  V.  Jackson,  11  Wend.  (N.  Y.)  442.'^ 

Defendant  was  not  required  to  make  tlie  payments  to  plaintiff 
as  they  matured,  until  plaintiff  acquired  the  vendor's  rights.  The 
vendee  can  not  assume  to  determine  for  himself,  and  at  his  own 
risk,  the  controversy  between  plaintiff  and  his  debtor;  and  defend- 
ant need  not  go  into  equity  to  settle  their  differences.  He  may 
stand  upon  his  contract,  and  when  plaintiff  has  acquired  the  vendor's 
right  to  the  money  by  perfecting  title  in  himself  the  defendant 
will  be  justified  in  making  payment  to  him.  In  McMuUen  v.  Wen- 
ner,  16  Serg.  &  R.  (P^.)  19,  it  is  held  that  the  sale  on  execution 
"Bin^tlie  legal  estate,  andthe  execution  purchaser  stands  in  the 
place  of  the  original  vendor,  and  is  entided  to  the  unpaid  purchase- 
money,  the  payment  of  which  he  can  enforce  by  ejectment ;  and  tliis 
works  no  hardship  on  the  vendee,  as  he  can  protect  himself  by 
witldiolding  further  payments,  unless  he  is  indemnified.  And  upon 
payment  to  the  judgment  creditor  he  is  entitled  to  a  conveyance  of 
the  legal  title  vested  in  the  sheriff's  vendee.  Mover  v.  Hinman,  13 
N.  Y.  180;  Id.,  17  Barb.  (N.  Y.)  137.  In  the  latter  case  it  is  held 
tliat  the  judgment  against  the  vendor  is  a  charge  upon  the  land, 
and  binds  the  legal  title ;  but  equity  limits  and  restricts  this  lien  to 
the  amount  of  the  unpaid  purchase-money  due  from  the  vendee,  and 
the  vendee  may  insist  upon  a  conveyance  of  the  premises  upon  pay- 
ment of  the  purchase-price. 

In  Stewart  v.  Coder,  1 1  Pa.  90,  it  is  held  that  when  the  vendor 
retains  the  legal  title  for  the  security  of  unpaid  purchase-money. 


"Accord:  Vance  v.  Workman,  8  Blackf.  (Ind.)  306  (1846);  Filley  & 
Hopkins  v.  Duncan,  I  Xebr.  134,  93  Am.  Dec.  2,2,7  (1850)  ;  Shinn  v.  Taylor,  28 
Ark.  523  (1873)  ;  Floyd  v.  Harding,  28  Grat.  (Va.)  401  (1877)  ;  Schrocdcr  v. 
Gurncy,  72,  N.  Y.  430  (1878)  ;  Logan  v.  I'annill,  90  Va.  11,  17  S.  E.  744  (1893). 
Unless  it  can  be  shown  that  the  payments  were  made  with  actual  knowledge 
of  a  lien  on  the  vendor's  interest  in  the  land,  IVehn  V.  Fall,  55  Nebr.  547, 
76  N.  W.  13,  70  Am.  St.  397  (1S98).  Compare  State  Bank  of  Decatur  v. 
Sanders,  114  Ark.  440,  170  S.  W.  86  (1914). 


MAY  V.    EMERSON  629 

a  Judgment  against  him  is  a  lien  not  only  on  the  naked  title,  but  it 
also  attaches  on  the  money  remaining  unpaid,  and  the  execution 
purchaser  may  enforce  payment  by  an  action  in  ejectment.  A  judg- 
ment creditor  has  a  right  to  sell  the  vendor's  interest  in  the  property, 
and  in  that  manner  acquire  his  interest  in  the  debt,  as  well  as  the 
property,  as  security  for  its  payment.  Glander  v.  Tighe,  43  Nebr. 
3.-14;  Doe  V.  Startzer,  62  Nebr.  718.  Whether  the  creditor  has  a 
remedy  by  attaching  the  debt  or  whether  in  all  cases  that  remedy 
would  be  adequate,  need  not  be  decided  here;  the  remedy  by  judg- 
ment and  execution  sale  of  the  vendor's  interest  is  a  proper  one. 
But  the  defendant  has  not  forfeited  his  rights  by  failing  to  redeem 
from  plaintiff's  execution  sale.  He  is  not  a  redemptioner  until  he 
has  received  the  escrow  deed,  which  he  can  secure  only  by  paying 
the  purchase-price  to  the  depositary,  which  would  thus  require  a 
double  payment ;  and,  without  the  peril  of  litigation  with  the  vendor, 
he  could  not  pay  plaintiff  until  the  vendor's  interest  is  extin- 
guished. The  burden  is  upon  plaintiff  to  put  himself  in  a  position 
to  demand  the  money  from  the  defendant.  This  makes  it  necessary 
for  him  to  acquire  tihe  vendor's  right  and  title. 

Defendant  has  pleaded  possession  under  his  contract  of  pur- 
chase, of  which  the  plaintiff  at  all  times  had  notice ;  and,  until  the 
defendant  has  forfeited  his  right  to  possession  tliereunder,  he  can 
not  be  ousted.  The  stipulation  in  this  case  discloses  that  he  paid 
the  money  to  the  depositary,  but  that  is  not  an  act  of  forfeiture, 
even  though  such  payment  may  be  a  total  loss  to  him.  Tomlinson  v. 
Blackburn,  37  N.  Car.  509. 

But  defendant  can  not  be  ousted  by  plaintiff  until  the  latter  has 
placed  him  in  default,  by  tendering  him  a  deed  and  demanding  the 
money.  The  execution  of  tlie  deed  by  plaintiff  and  the  payment  of 
the  purchase-money  by  the  defendant  are  concurrent  acts.  Guthrie 
V.  Thompson,  i  Ore.  353;  Wolcott  v.  Madden,  10  Ore.  370;  Powell 
V.  Dayton,  etc.,  R.  Co.,  12  Ore.  488. 

The  defendant  is  not  in  default,  and  therefore  can  not  be  ousted 
by  ejectment;  and  the  judgment  is  reversed.^*^ 

Reversed. 


A  judgment  lien  accruing:  against  a  vendor  of  land  after  the  making  of 
the  contract  of  sale  binds  his  interest  in  the  land  to  the  extent  of  the  unpaid 
purchase  money.  Catlin  v.  Rnhinson.  2  Watts  (Pa  )  37-^  (1834);  Lane  v. 
Ludlow,  2  Paine  (C.  C.)  591,  Fed.  Cas.  No.  8052  (1835)  ;  Moyer  v.  Hinman, 
13  N.  Y.  180  (1855)  ;  Pafton  v.  Hollidavsbiira.  40  Pa.  St.  206  (1861)  ;  Leffer- 
son  V.  Dallas,  20  Ohio  St.  68  (1870)  ;  Jackson  v.  ii'nell,  34nn3t  241  (1870)  ; 
Minneapolis  &  St.  Lords  R.  Co.  v.  Wilson,  25  Minn.  382  (1879);  Pack  v. 
Hansbarger,  17  W.  Va.  313  (1880)  ;  Hardee  v.  McMichael,  68  Ga.  678  (1882)  ; 
Coolbough  v.  Roemer,  30  Minn.  424,  15  N.  W.  869  (1883)  ;  Berryhill  v.  Potter, 
42  Minn.  279,  44  N.  W.  251  (1890)  ;  Snyder  v.  B  of  kin,  37  W.  Va.  355,  16  S.  E. 
591  (1892)  ;  Kinports  v.  Bovntnn.  120  Pa.  St^3o6,  i4  AtL  13=^,  6  Am.  St.  706 
(1888)  ;  Valentine  v.  Seiss,  79  Md.  187,  28  Atl.  892  (1894)  ;  First  Nat.  Bk.  v. 
Edgar,  65  Nebr.  340,  91  N.  W.  404  (1902)  ;  Zenda  Min.  Co.  v.  Tiffin,  11  Cal. 
App.  62,  104  Pac.  10  (1909). 


630  JUDGMENT 

DOE  EX  DEM  COOrER  z:  CUTSHALL 
Supreme  Court  of  Indiana,  1S48 

I   f)td.  246 

Ejectment,  by  Doc  on  the  demise  of  Cooper  against  Cutshall. 
Judgment  for  the  defendant  below.  Cutshall  derives  title  from  Com- 
paret ;  Cooper,  the  lessor  of  tlie  plaintiff,  from  Norris.  The  facts  of 
the  case  are  these : 

On  the  9th  of  August,  183 1,  Francis  Comparet  sold  the  land  in 
controversy  to  Luke  Norris,  gave  him  a  title-bond  for,  and  put  him 
in  possession  of  it.  Norris  continued  in  possession  till  December, 
1833,  and  made  improvements.  At  the  time  he  found  he  should  be 
unable  to  pay  for  the  land,  and,  accordingly,  surrendered  the  pos- 
session and  title-bond,  received  back  his  notes,  given  for  the  pur- 
chase-money, and  the  contract  was  then  cancelled  by  mutual  consent. 
Comparet  then  sold  the  land  to  Cutshall. 

On  the  2d  of  May,  1833,  Stephen  Coles  obtained  a  judgment  in 
the  Allen  Circuit  Court  against  said  Luke  Norris;  and  on  tlie  20th 
day  of  Alay,  1834,  had  the  land  in  dispute  sold,  on  an  execution  on 
said  judgment  against  Norris,  at  which  sale,  Henry  Cooper,  the 
lessor  of  the  plaintiff,  became  the  purchaser.  Such  are  the  respective 
titles  of  the  parties.  The  plaintiff  claims  to  succeed  on  the  ground 
that  the  judgment  of  Coles  was  a  lien  on  the  equitable  estate  of 
Norris  in  the  land,  under  his  title-bond  and  possession,  and  that, 
by  the  sheriff's  sale  and  deed,  that  interest  and  right  of  possession 
were  conveyed  to  Cooper,  his  lessor;  and  he  relies  upon  the  cases  of 
Jackson  v.  Parker,  9  Cow.  (N,  Y.)  73,  and  JVayman  et  al.  v. 
Harding,  3  Blackf.  (Ind.)  26.  The  case  of  Jackson  v.  Parker  was 
examined,  and  held  not  to  be  law  in  this  state,  in  Modisetf  v.  Johnson, 
2  Blackf.  (Ind.)  431;  and  Modisett  v.  Johnson  was  reviewed  and 
confirmed  by  this  court  in  Orth  v.  Jennings  et  al,  8  Blackf.  (Ind.) 
420.  The  case  of  IVayman  et  al.  v.  Hardin,  has  no  bearing  upon  the 
present. 

We  think  Cole's  judgment  was  no  lien  on  the  land  held  by 
Norris,  and  that  the  sale  by  the  sheriff  of  the  land,  under  Cole's 
judgment,  and  his  deed  pursuant  to  said  sale,  conveyed  no  title  to 
Cooper,  the  plaintiff's  lessor. 

The  judgment  is  affirmed  with  costs,  etc.^^ 

"Many  cases  hold  that  the  interest  of  a  vendee  in  possession  under  a 
contract  of  purchase  is  equitable  and  not  subject  to  the  lien  of  a  judgment 
against  him.  Modisett  v.  Johnson,  2  Blackf.  (Ind.)  431  (1831);  Davis  v. 
Cumberland,  6  Ind.  380  (1855)  ;  Gentry  v.  Allison,  20  Ind.  481  (1863)  ;  Evans 
V.  Fceny,  81  Ind.  532  (1882)  ;  Roddy  &  Co.  v.  Elam,  12  Rich.  Eq.  (S.  Car.) 
343  (1866)  ;  Merchants'  Nat.  Bank  v.  Eustis,  8  Tex.  Civ.  App.  350,  28  S.  W. 
227  C1894) ;  Rosenberger  V.  Jones,  118  Mo.  559,  24  S.  VY.  203  (1893)  ;  Sweeney 
V.  Pratt,  70  Conn.  274,  39  Atl.  182,  66  Am.  St.  loi  (1898)  ;  Powell  v.  Bell, 
81  Va.  222  C1885)  ;  Nelson  v.  Turner,  97  Va.  54,  33  S.  E.  390  (1899).  In  New 
York  the  decisions  were  conflicting,  compare  Bogert  v.  Perry,  17  Johns. 
(N.  Y.)  351  (1819),  with  Jackson  ex  don.  Cary  v.  Parker,  9  Cow.  (N.  Y.) 


MUTUAL   ASSUR.    SOC.    V.    STANARD  63I 

MUTUAL  ASSUR.  SOC.  v.  STANARD 

Supreme  Court  of  Appeals  of  Virginia,  1815 

4  Munf.  (Va.)  539 

The  Mutual  Assurance  Society  against  fire  on  buildings,  in  the 
state  of  Virginia,  filed  a  bill  in  the  Superior  Court  of  Chancery  for 
the  Richmond  District,  against  Larkin  Stanard,  and  Beverley  C. 
Stanard  and  Robert  S.  Chew,  trustees  in  a  deed  executed  by  the 
said  Larkin,  for  the  benefit  of  sundry  creditors  of  his,  who  were  also 
made  defendants. 

The  object  of  the  bill  was  to  obtain  satisfaction  of  a  judgment 
rendered  by  the  district  court  of  Fredericksburg,  in  favor  of  the 

73  (1828)  ;  Ellsworth  v.  Cuyler,  9  Paige  (N.  Y.)  418  (1842)  ;  Salisbury  v. 
La  Fine,  21  Colo.  App.  13,  121  Pac.  952  (1912)  ;  Ross  v.  Nichols,  25  Colo.  App. 
409,  138  Pac.  1013  (1914).  The  revised  statutes  provided  that  such  an  interest 
should  not  be  bound  by  the  docketing  of  a  judgment,  nor  sold  by  execution 
thereon,  Griffin  v.  Spencer,  6  Hill  (N.  Y.)  525  (18.44)  ;  Bought  on  v.  Bank, 
2  Barb.  Ch.  (N.  Y.)  45S  (1847),  and  this  provision  is  re-enacted  in  the  Code 
of  Civil  Procedure,  §  1253.  Packard  v.  Sugarman,  31  Misc.  623,  66  N.  Y.  S.  30 
(1900).  (But  the  interest  can  be  reached  by  attachment,  Higgins  v.  McCon- 
nell,  130  N.  Y.  482,  29  N.  E.  978  (1892). 

Where,  by  statute  or  decision,  a  judgment  is  a  lien  on  an  equitable 
estate  in  lands  the  rule  is  otherwise.  Baldzvin  v.  Belcher,  I  J.  &  L.  18  (1844)  ; 
Walcott  &  Colder  v.  Lynch,  13  Ir.  Eq.  R.  199  (1850)  ;  Adams  v.  Harris,  47 
Miss.  144  (1872)  ;  Rand  v.  Garner,  7$  Iowa  311,  39  N.  W.  515  (1888)  ;  Steivart 
V.  Berry,  84  Ga.  177,  10  S.  E.  601  (1889)  ;  Washington  v.  Bogart,  119  Ala.  277, 
24  So.  245  (1898)  ;  Davis  v.  Vass,  47  W.  Va.  811,  35  S.  E.  826  (1900).  In 
Pennsylvania.  "A  judgment  against  the  equitable  estate  which  a  vendee  holds 
imder  articles  of  agreement  for  the  sale  and  purchase  of  land  attaches  to  and^ 
binds  the  legal  estate  the  instant  that  it  vests  in  the  vendee."  Water's  Appeal, 
35  Pa.  St.  523,  78  Am.  Dec.  354  (i860)  ;  Richter  v.  Selin,  8  Serg.  &  R.  (Pa.) 
425  (1822)';  Amverter  v.  Mathiot,  9  Serg.  &  R.  (Pa.)  397  (1823)  ;  Episcopal 
Academy  v.  Frieze,  2  Watts  (Pa.)  16  (1833)  ;  Foster's  Appeal,  3  Pa.  St.  79 
(1846);  Russell's  Appeal,  i^  Pa.  St.  319  (1850);  Lloyd,  Huff  and  Watt's 
Appeal,  82  Pa.  St.  485  (1876);  Eberly  v.  Lehman,  100  Pa.  St.  542  (1882). 
But  a  vendee  who  has  paid  no  part  of  the  purchase  money  and  with  the  con- 
sent of  the  vendor  has  cancelled  the  articles  of  agreement,  has  no  estate  which 
would  be  bound  by  the  lien  of  a  judgment  against  him.  Raffensberger  v. 
Cji/Zi.yow,  28  Pa.  St.  426  (1857). 

At  common  law  a  judgment  at  law  is  not  a  lien  upon  an  equitable 
interest,  the  creditor  must  have  relief  in  equity.  Jackson  ex  dem.  Montgomery 
V.  CJiapin,  5  Cow.  (N.  Y.)  485  (1826)  ;  Baird  v.  Kirtland,  8  Ohio  21  (1837)  ; 
New  York  Dry  Dock  Co.  v.  Stillman,  30  N.  Y.  174  (1864)  ;  Morsell  v.  First 
Nat.  Bank,  91  U.  S.  357,  23  L.  ed.  436  (1875)  ;  Brandies  v.  Cochrane,  112  U.  S. 
344,  28  L.  ed.  760,  5  Sup.  Ct.  194  (1884)  ;  Trusdell  v.  Lehman,  47  N.  J.  Eq. 
218,  20  Atl.  391  (1890)  ;  Sipley  v.  Wass,  49  N.  J.  Eq.  463,  24  Atl.  233  (1892)  ; 
Cummings  v.  Duncan,  134  N.  W.  712,  22  N.  Dak.  534,  Ann.  Cas.  1914B,  976n 
(1912)  ;  Smith  v.  Collins,  81  N.  J.  Eq.  348,  86  Atl.  957  (1913).  In  Pennsyl- 
vania, in  the  absence  of  a  court  of  chancery  it  was  established  as  a  principle 
that  judgments  were  liens  on  equitable  estates.  Carkhuff  v.  Anderson,  3  Binn. 
(Pa.)  4  (1810);  Fair  Hope  North  Salvage  Fire  Brick  Co.'s  Estate,  183  Pa. 
St.  96,  38  Atl.  519  (1897).  And  in  several  states  statutes  provide  that  a  judg- 
ment is  a  lien  on  equitable  interests  in  real  e.state.  McMechen  v.  Marman, 
8  Gill  &  J.  (Md.)  57  (1836)  ;  Blain  v.  Stewart,  2  Iowa  378  (1856)  ;  Niantic 
Bank  v.  Dennis,  2,7  Hb  381  (1865)  ;  Trimble  v.  Hunter,  104  N.  Car.  129,  10 
S.  E.  291  (1889);  Weaver  v.  Smith,  102  Tenn.  47,  50  S.  W.  771  (1898); 
Barlow  v.  Cooper,  109  111.  App.  375  (1Q02). 


] 


6^2  JUDGIMENT 

complainants,  acjainst  the  dofcmlant,  T.arkin  Stanard,  at  April  term, 
viz..  on  the  0th  of  i\lay,  1808,  by  suhjccting  for  that  purpose  a  tract 
of  land,  and  smulry  slaves  and  other  ])ersonal  property  ("being 
all  his  estate,  real  and  personal")  which  he  had  conveyed  by  that 
deed,  bearing  date  tlie  28th  of  April,  and  recorded  on  tlie  9th  of 
May,  1808. 

Larkin  Stanard  and  the  trustees  in  their  answers  denied  the 
charge  of  fraud  made  in  the  bill.  The  other  defendants  appeared  to 
be  just  creditors,  and  by  their  answers  stated  their  claims,  to  sat- 
isfy which  the  deed  was  given.  It  did  not  appear  that  the  plaintiffs 
had  sued  out  any  execution  upon  their  judgment.  Chancellor  Tay- 
lor dismissed  the  bill  and  plaint iiTs  appealed.*- 

RoANE,  J.:  The  court  is  of  opinion,  that,  as  it  appears  In  evi- 
dence, in  this  cause,  that  the  deed  of  trust  in  the  proceedings  men- 
tioned, was  executed  on  and  after  the  first  day  of  the  term  in  which 
the  appellants'  judgment  was  obtained,  and  as  that  judgment  relates 
to  the  said  first  day,  inclusively,  the  said  deed  of  trust  could  not 
vacate  or  affect  the  lien  on  the  land  created  by  tlie  judgment,^^  that, 
consequently,  it  was  incompetent  to  exclude  the  claim  of  the  appel- 
lants upon  the  land  thereby  conveyed;  and  that  the  right  of  the 
trustees  under  the  same  ought  to  be  taken  in  subordination  thereto ; 
that,  as  the  said  deed  provided,  that  tlie  said  land  should  be  sold 
to  answer  the  purposes  of  the  said  trust,  the  court  is  of  opinion, 
that  the  trustees  therein  named,  should  have  been  decreed  to  sell 
the  same,  and  pay,  In  the  first  place,  the  principal  sum,  interest  and 
costs,  due  to  the  appellants  by  the  said  judgment,  out  of  the  proceeds 
thereof,  after  which  they  should  be  held  at  liberty  to  proceed  in 
the  execution  of  their  trust;  and  that  there  is  error  in  so  much 


"A  portion  of  the  statement  of  facts  is  omitted. 

^'At  common  law,  judgments  of  a  court  of  record,  on  whatever  day  of 
the  term  entered,  related  back  to  the  first  day  of  the  term  and  overreached 
as  a  lien  all  intermediate  conveyances  of,  or,  charges  upon,  the  debtor's  lands. 
Stand  ford  v.  Cooper,  Cro.  Car.  102  (1627);  2  Tidd's  Pr.  967,  3  Sa!k.  212. 
The  Statute  of  Frauds  (29  Car.  II,  ch.  3,  §§  14,  15),  required  that  the  true 
date  of  all  judgments  should  be  noted  in  the  margin  of  the  roll,  and  provided 
that,  as  against  bona  fide  purchasers  for  value,  such  judgments  should  bind 
from  the  time  they  were  signed.  Odes  v.  Woodward,  2  Ld.  Raj-m.  766  (1702) ; 
Robinson  V.  Tonge,  3  P.  Wms.  398  (1735)  ;  Fatin  v.  Atkinson,  Willes  427 
Ci7-]3)  ;  Sivann  v.  Broome,  3  Burr.  1595  (1764)  ;  Bracjner  v.  Langmead,  7  T.  R. 
20  (1796)  ;  IVaghorne  v.  Langmead,  i  B.  &  P.  571  (1796).  The  common-law 
rule  was  followed  in  a  number  of  early  American  cases.  Coutts  v.  Walker, 
2  Leigh  (Va.)  268  (1830)  ;  Skipzvith  v.  Cunningham,  8  Leigh  (Va.)  271,  31 
Am.  Dec.  642  (1837)  ;  Brockenborough  v.  Brockenborough,  31  Grat.  (Va.) 
s8o  (1870);  Farley  v.  Thomas  L.  Lea,  3  Dcv.  &  B.  (N.  Car.)  169  (1838); 
Urbana  Bank  v.  Baldwin,  3  Ohio  65  (1827)  ;  Riddle  v.  Bryan,  5  Ohio  49 
("1831),  and  with  some  statutory  qualifications  is  still  the  law  in  several  states, 
Colt  V.  Dn  Bois,  7  Nebr.  391  (1878);  Hayden  v.  Huff,  60  Nebr.  625,  83 
N.  W.  920  (1900)  ;  Coad  v.  Cozvhick,  9  Wyo.  316,  63  Pac.  584,  87  Am.  St.  953 
C1900)  ;  Bowlin  v.  Garrett,  49  Kans.  504,  31  Pac.  135,  33  Am.  St.  2>77  (1892)  ; 
Holman  v.  Miller,  103  N.  Car.  118,  9  S.  E.  429  (1889)  ;  Jeffrey  v.  Moran,  loi 
U.  S.  285,  25  L.  ed.  785  (1879  Ohio)  ;  Nat.  Bank  v.  Tennessee  C.  &c.  R.  Co., 
62  Ohio  St.  564,  57  N.  E.  4,so  (1889);  Neiv  South  Building  &  L.  As.m.  v. 
Reed,  96  Va.  34^,  31  S.  E.  514,  70  Am.  St.  858  (1898)  ;  Smith  v.  Parkersburg 
Co-op.  Assn.,  48  \V.  Va.  232,  37  S.  E.  645  (1900);  McKinney  v.  Street,  165 
N.  Car.  515,  81  S.  E.  757  (1914). 


MUTUAL   ASSUR.    SOC.    V.    STANARD  633 

of  the  said  decree  as  dismisses  the  bill  in  toto,  instead  of  making  the 
provision  respecting  the  land. 

With  respect  to  the  personal  estate  conveyed  by  the  said  deed, 
the  court  is  of  opinion,  that,  as  it  is  competent  to  a  debtor  to  prefer 
one  bona  fide  creditor  to  another  not  having  a  lien  thereupon,  which 
lien  only  arises  by  the  delivery  of  the  execution  to  the  sheriff;^* 
and  as  no  execution  was  taken  out  by  the  appellants  in  this  case,  the 
court  is  of  opinion,  that  the  appellants  have  no  lien  or  ground  to 
stand  on,  either  for  the  purpose  of  vacating  the  deed  aforesaid,  or 
of  being  permitted  to  redeem  the  said  personal  property,  according 
to  the  doctrine  established  in  the  case  of  Shirley  v.  Watts,  3  Atk. 
200;  but  this  opinion,  on  this  point,  is  not  to  bar  or  affect  the  right 
of  the  appellants,  if  any,  to  the  residuary  money,  resulting  to  the 
grantor,  Stanard,  from  the  sale  of  the  personal  estate  thereby  con- 
veyed. 

The  court  is  of  opinion,  therefore,  that,  so  far  as  the  decree  dis- 
inisses  tlie  bill  as  to  the  personal  property,  it  is  correct;  but  that  it 
was  erroneously  dismissed  as  to  the  land,  for  the  reason  before  as- 
signed ;  and  that,  instead  thereof,  it  should  have  made  the  provision 
hereinbefore  mentioned,  in  favor  of  the  appellants. 

Decree  reversed,  and  cause  remanded  to  the  court  of  chancery, 
to  be  reformed  pursuant  to  tlie  principles  of  this  decree.^^ 

^Simpson  v.  Smith,  75  Miss.  505,  22  So.  805  (1897)  ;  In  re  Tapper,  163 
Fed.  766  (1908  N.  Y.)  ;  Whitaker  v.  Wishey,  12  C.  B.  44  (1852)  -yJDuncajtjf. 
McCunip£x,ljJX^W2.tts  ( Pa. )  212  (1840),  infra  page  694. 

**Tir  a  great  majority  of  states  the  common-law  rule  has  been  modified 
or  abolished,  i  Black  on  Judgments,  §  443.  In  some  jurisdictions  judgments 
rendered  at  the  same  term  are  equal.  Morgan  v.  Sims,  26  Ga.  283  (1858)  ; 
Bailey  v.  Bailey,  93  Ga.  768,  21  S.  E.  77  (1894)  ;  Dloiighy  v.  Spanninger,  30  111. 
App.  302  (1888)  ;  Gay  v.  Rainey,  89  111.  221,  31  Am.  Rep.  76  (1878),  in  others 
a  judgment  is  regarded  as  entered  on  the  last  day  of  the  term.  Chase  v. 
Gihnan,  15  Maine  64  (1838)  ;  Goodall  v.  Harris,  20  N.  H.  363  (1850)  ;  Bradish 
v.  State,  35  Vt.  452  (1862)  ;  Wolfe  v.  Joubert,  45  La.  Ann.  iioo,  13  So.  806, 
21  L.  R.  A.  772  (1893),  and  see  Bradley  v.  Heffernan,  156  Mo.  653,  57  S.  W. 
763  (1900).  But  in  most  states  the  lien  of  a  judgment  attaches  from  the  date 
of  "rendition"  or  date  of  "entry,"  the  language  of  the  statutes  varying  in  this 
respect.  See  New  York  Code  of  Civil  Procedure,  §  1250;  In  re  Hazard,  73 
Hun  22,  25  N.  Y.  S.  928,  56  N.  Y.  St.  Rep.  82  (1893)  ;  Gay  v.  Hudson  R.  E.  P. 
Co.,  182  Fed.  904  (1910N.  Y.)  ;  California  Code  Civ.  Pro.,  §  671 ;  Del.  Rev.  Code 
(i9i5),ch.  132,  §  I ;  Dyson  Y.  Simmons, ^^Md.  207  (1877)  ;  Callanan  v.  Votruba, 
104  Iowa  672,  74  N.  W.  13,  40  L.  R.  A.  375,  65  Am.  St.  538  (1898)  ;  Himt  v. 
Swayse,  55  N.  J.  L.  ZZ,  25  Atl.  850  (1892)  ;  Julian  v.  Beal,  26  Ind.  220,  89  Am. 
Dec.  460  (1866)  ;  Marshall  v.  Hart,  4  Minn.  450  (i860)  ;  Belbaze  v.  Ratto, 
69  Tex.  636,  7  S.  W.  501  (1888)  ;  Sklower  v.  Abbott,  19  Mont.  228,  47  Pac.  901 
(1897)  ;  IVhitworth  V.  McKee,  32  Wash.  83,  72  Pac.  1046  (1903)  ;  Pennsyl- 
vania,  Art  nf  yfurrh  -7T^  T77?,  I  Sm.  L.  389,  §  3 ;  P.  &  L.  Dig.  (2d  ed.)  4201 ; 
n^^ch^v.' Murray.  4  Dall.  (Pa.)  ^20,  4  Yeates_i97j_i  L.  ed.  850  (1805)  ;  Burns 
v' Bums.  18  Phila.  (Pa.)  •;^8o  (1886^  ;  UTasgo2^_y_._JC£Limr-i7^I'a.  St.  262,  32 
Atl.  1095  (1895)',  and  see  Patterson's  Appeal,  j^6_Pz.  St.  93  ( 1880)  ;  Cran- 
ford  Mercantile  Co.  v.  Andeflon,  179  Ala.  573,  60  So.  874  (1913). 


634  JUDGMENT 

GALLAGHER  v.  TRUE  AMERICAN  RUB.  CO. 

Court  of  Chancery  of  New  Jersey,  1908 

75  N.  J.  Eq.  171 

On  appeal  of  the  Trenton  Trust  and  Safe  Deposit  Company, 
from  tlie  decision  of  the  receiver  of  the  defendant  corporation  re- 
fusing preference  of  a  claim. 

On  April  28,  1908,  at  ten  minutes  after  four  o'clock  in  the 
afternoon,  a  judgment  was  recovered  in  the  Supreme  Court  of  this 
state  against  the  defendant  company,  impleaded  with  others.  The 
suit  was  on  a  promissory  note  of  which  the  defendant  company 
was  the  maker,  and,  consequently,  the  party  primarily  liable.  The 
other  defendants  were  indorsers.  At  eight  o'clock  in  the  evening 
of  the  same  day  the  bill  of  complaint  in  this  cause  was  presented 
to  this  court,  and  an  order  was  thereupon  made  appointing  Edward 
L.  Katzenbach,  Esq.,  receiver  of  the  defendant  company.  The  bill 
and  order  were,  according  to  the  practice,  marked  filed  as  of  April 
28,  1908,  the  date  of  their  presentation  and  consideration,  and  were 
actually  filed  in  the  clerk's  office  the  next  day.  Mr.  Katzenbach 
qualified  as  receiver  on  the  29th,  the  day  the  papers  were  lodged  in 
the  clerk's  office. 

A  claim  by  the  plaintiff  as  a  preferred  creditor  against  the 
defendant  corporation  in  respect  to  the  lands  of  the  defendant  was 
duly  made  and  presented  to  the  receiver,  who  disallowed  it  as  a 
preference.®^ 

Walker,  V.  C. :  This  solution  of  the  question  here  presented 
depends  upon  whether  the  law  will  take  account  of  the  fraction 
of  a  day. 

Our  act  concerning  judgments  (Gen.  Stat,  p.  1841,  section  2) 
provides  that  a  judgment  shall  bind  lands  from  the  time  of  the  actual 
entry  thereof  on  the  records  of  the  court. 

Section  68  of  our  present  corporation  act  (Rev.  of  1896;  P.  L., 
pp.  2yy,  299)  provides  that  upon  the  appointment  of  a  receiver 
the  property  of  an  insolvent  corporation  forthwith  vests  in  him; 
and,  therefore,  the  property  of  the  defendant  company  vested  in  the 
receiver  on  the  day  the  appellant's  judgment  was  recovered. 

The  rule  that  the  law  does  not  take  account  of  the  fraction 
of  a  day,  is,  like  almost  every  other  rule,  subject  to  exceptions,  and 
one  exception  is  that  which  is  recognized  in  the  contest  between 
judgment  creditors  as  to  who  has  the  prior  lien  by  virtue  of  a  levy 
made  on  the  same  day  with  another  or  with  other  levies.  Now, 
as  it  is  incumbent  upon  courts  to  decide  who  is  first  in  point  of  time 
with  reference  to  the  delivery  of  a  writ  to  a  sheriff  or  other  officer, 
and  of  the  priority  of  a  levy  upon  property  as  between  several 
executions,  it  would  be  quite  an  anomaly,  if  not  absurd,  for  this 

'*The  statement  of  facts  is  from  the  vice-chancellor's  opinion,  part  of 
which  is  omitted. 


GALLAGHER  V.    TRUE  AMERICAN    PUB.    CO.  635 

court  to  refuse  to  take  account  of  time  as  between  a  judgment 
creditor  and  a  receiver  each  claiming  priority  of  right  in  the  real 
estate  of  an  insolvent  corporation,  the  judgment  creditor  by  reason 
of  the  entry  of  a  judgment,  which,  by  the  terms  of  the  statute,  is  a 
lien  upon  the  land  of  the  defendant  upon  its  entry,  and  the  receiver 
in  behalf  of  unsecured  creditors,  asserting  that  the  judgment  merely 
ascertains  the  amount  of  the  debt  due  to  the  creditor,  and  that 
no  lien  thereunder  exists  upon  the  land  in  his  possession  and  to 
which  he  holds  title  by  virtue  of  the  statute  and  order  of  his  ap- 
pointment. 

The  law  does  take  account  of  parts  of  days  In  cases  where  it  is 
essenntial  so  to  do  in  order  that  justice  may  be  done.  Johnson  v. 
Pennington,  15  N.  J.  L.  188.  And  the  exact  time  of  the  entry  of  a 
judgment  may  be  proved  as  matter  dehors  the  record.  Hunt  v. 
Swayse,  55  N.  J.  L.  33. 

The  doctrine  that  the  law  will  not  take  cognizance  of  the  frac- 
tions of  a  day  is  a  legal  fiction,  and  it  will  not  be  permitted  to  work 
injustice.®^  Clark  v.  Bradlaiigh,  L.  R.  7  Q.  B.  151,  per  Justice 
Denman  (at  p.  153),  and  per  Justice  Williams  (at  p.  154)  ;  affirmed 
on  appeal,  S.  C,  8  6.  B.  Div.  63. 

These  views  lead  to  a  reversal  of  the  decision  of  the  receiver. 
I  will  advise  an  order  that  the  appellant's  judgment  be  paid  by  way 
of  preference  out  of  the  proceeds  of  the  sale  of  the  defendant  cor- 
poration's real  estate  in  the  hands  of  the  receiver.^^ 


^"See  note  to  Arrowsniiih  v.  Hormening,  23  Amer.  L.  Reg.  (N.  S.)  253 
(1884). 

^^Accord:  Lemon  v.  Staats,  i  Cow.  (N.  Y.)  592;  Biggan  v.  Merritt, 
Walk.  (Miss.)  430,  12  Am.  Dec.  576  (1831)  ;  Reed  &  Co.  v.  Haviland,  38 
Miss.  323  (i860)  ;  Bates  v.  Hinsdale,  65  N.  Car.  423  (1871)  ;  Marvin  v.  Mar- 
vin, 75  N.  Y.  240  (1878)  ;  N.  Y.  Code  Civ.  Pro.,  §  1246;  Herron  v.  Walker, 
69  Miss.  707,  12  So.  259  (1892);  German  S.  Co.  v.  Campbell,  99  Ala.  249, 
12  So.  436,  42  Am.  St.  55  (1892).  Contra:  Lord  For  Chester  v.  Petrie,  3 
Doug.  261  (1783)  ;  Pugh  v.  Robinson,  1  T.  R.  116  (1786)  ;  Schilstra  v.  Van 
Den  Heuvcl,  82  N.  J.  Eq.  155,  90  Atl.  1056  (1913)  ;  Bulows  &  Pope  v.  O'Neall, 
4  Desaus.  Eq.  (S.  Car.)  394  (1813)  ;  Rockhill  v.  Hanna,  Fed.  Cas.  No.  11980, 
4  McLean  (U.  S.)  5^4  (1849)  ;  Emerick  v.  Garzvood,  1  Browne  (Pa.)  20,  4 
Dall.  321  n.,  I  L.  ed.  851  n.  (1806)  ;  IVright  v.  Mills,  4  H.  &  N.  488  (1859)  ; 
Bruce  V.  Vogel,  38  Mo.  100  (1866)  ;  McClnre  v.  Roman,  p  Pa.  St.  4^8  (1866)  ; 
Patterson's  Appeal,  96  Pa.  St.  93  (1880).  See  also  In  re  London  &  Devon  Bis- 
ctiit  Co.,  L.  K.  12  Eq.  190  (1871J.  Between  a  judgment  and  conveyance  priority 
in  time  may  be  shown.  Mtirfrce  V.  Carmack,  4  Yerg.  (Tenn.)  270,  26  Am.  Dec. 
232  (1833);  Mechanics  Bank  v.  Gormgn,  8  Watt<;  8j  S  (Pp..)  304  (1844); 
Berry  v.  Clements,  9  Humph.  (Tenn.)  312  (1848)  ;  Bayer's  Estate,  ?,i  Pa.  St. 
432,  91  Am.  Dec.  129  (1866)  ;  Hoppock  v.  Ramsey,  28  N.  J.  Eq.  413  (1877)  ; 
Clark  v.  Duke,  59  Miss.  575  (1882)  ;  Hunt  v.  Sway::e,  55  N.  J.  L.  33,  25  Atl. 
850  (1892).  Compare  Hockman  v.  Hockman,  93  Va.  455,  25  S.  E.  534,  57  Am. 
St.  816  (1896).  As  to  Mortgages  compare  Claason's  Appeal,  22  Pa.  St.  359 
(1853)  ;  Hollingszvorth  v.  Thompson,  5  Harr.  (Del.)  432  (1854)  ;  Hendrick- 
son^s  A pfeal.  2d  Pa.  St.  363  (18.SS)  with  Goetsinger  v.  Rosenfield,'i6  Wash. 
"392,  47  Pac.  882,  38  L.  K.  A.  257  (1897)  ;  Holliday  v.  Franklin  Bank,  16  Ohio 
533  (1847)  ;  Ex  parte  Stagg,  i  N.  &  AIcC.  (S.  Car.)  405  (1819),  where  judg- 
ments are  entitled  to  equal  precedence  as  liens  on  land,  it  has  been  held  in 
some  jurisdictions  that  execution  gives  priority  as  to  the  proceeds  of  the  sale. 
Adams  v.  Dyer,  8  Johns.  (N.  Y.)  347,  5  Am.  Dec.  344  (1811)  ;  Waterman  v. 


636  jrniiMi-NT 

HUBBARD  V.  PRESIDF.NT.  V.TC,  HAMILTON  BANK 

Supreme  Judicial  Court  of  Massachusetts,  1844 

48  Mass.  340 

Petition  by  the  receivers  of  the  Phoenix  Bank  to  restrain  the 
Hamihon  Bank  from  further  ]irosecuting  a  suit  against  the  Phoenix 
Bank  commenced  by  attaclimcnt  before  the  appointment  of  the  re- 
ceivers and  to  dissolve  the  attachment.  In  denying  the  prayer  of 
the  petition  the  court  explained  the  nature  of  the  lien  acquired  by 
attachment  as  follows.^^ 

Dewey,  J. :  Originally,  an  attachment  on  mesne  process  seems 
to  have  been  instituted  merely  for  the  purpose  of  compelling  the 
appearance  of  the  defendant  in  court  to  answer  to  the  suit.  But 
as  early  as  1650,  attachments  were  authorized  for  the  additional 
purpose  of  securing  the  payment  of  such  judgment  as  might  be  re- 
covered in  the  action.  The  colonial  ordinance  of  1650  was  thus: 
"It  is  hereby  ordered  by  this  court,  and  the  authority  thereof,  that 
henceforth,  all  goods  attached  upon  any  action  shall  not  be  re- 
leased upon  the  appearance  of  the  party,  or  judgment,  but  shall 
stand  engaged  until  the  judgment,  or  the  execution  granted  upon 
such  judgment,  be  discharged."  Anc.  Chart.  51.  The  same  pro- 
vision was  substantially  re-enacted  in  1659,  with  this  limitation : 
"Where  execution  is  not  taken  out  and  executed  within  one  month 
after  that  judgment  is  granted,  all  such  attachments  shall  be  re- 
leased and  void  in  law,  unless  the  court  that  granted  the  judgment 
shall  see  cause  to  give  further  time."  Anc.  Chart.  193. 

The  Statute  of  1784,  ch.  28,  provided  that  all  goods  and  estate, 
attached  upon  mesne  process  for  the  security  of  the  debt  or  damages 
sued  for,  should  be  held  for  the  space  of  thirty  days  after  final 
judgment,  to  be  taken  on  execution.  Thus  the  law  continued  until 
the  revision  of  the  statutes  of  the  commonwealth,  when,  by  Rev. 
Stats.,  ch.  90,  sections  23-25,  it  was  enacted,  that  all  real  estate  and 
all  personal  estate,  attached  upon  the  original  writ,  "shall  be  held  as 
security  to  satisfy  such  judgment  as  the  plaintiff  may  recover," 
with  the  former  limitation  of  thirty  days  after  judgment  rendered, 
for  the  service  of  the  execution. 


Haskin,  11  Johns.  (N.  Y.)  228  (1814);  Reeves  v.  Johnson,  12  N.  J.  Law  29 
(1830)  ;  Burney  v.  Boyett,  i  How.  (Miss.)  39  (1834)  ;  Tilford  v.  Burnham, 
7  Dana  (Ky.)  109  (1838)  ;  Rockhill  v.  Ilanna,  15  How.  (U.  S.)  189,  14  L.  ed. 
656  (1853)  ;  Cook  V.  Dillon,  9  Iowa  407,  74  Am.  Dec.  354  (1859)  ;  Kisterson 
V.  Tate,  94  Iowa  665,  63  N.  \V.  350,  58  Am.  St.  Rep.  419  (1895)  ;  Canfield  v. 
Broixning,  69  N.  J.  L.  553,  55  Atl.  loi  (1903).  Contra:  Mctzlcr  w.  Kilgore, 
3. Pen.  &_W.  iPaJ  245,  23  Am.  Dec.  76  (1831)  ;  IVilson's  AppeaL_QQ  p£^SL 
370  (1879).  "As  to  bankruptcy  see  Golden  v.  Blaskopf,  126  Mass.  523  (1879)  ; 
In  re  Rhoads,  98  Fed.  399  (1890)  ;  Metcalf  v.  Barker,  187  U.  S.  165,  23  Sup. 
Ct.  67,  47  L.  ed.  122  (1902)  ;  Clarke  v.  Larremorc,  188  U.  S.  486,  23  Sup.  Ct. 
363,  47  L.  ed.  555  (1902)  ;  Menckey.  Rosenberg ,^202  Pa.  Sl^j:,3i_5l^tl.  767, 
90  Am.  St.  627n  (1902)  ;  Hillycr  v.~LeRoy,  179  N.  Y.  369,  72  N.  E.^37,  103 
Am.  St.  Rep.  919  (1904). 

"Extracts  from  the  opinion  of  the  court  only  are  printed. 


HUBBARD  V.    PRESIDENT,    &C.    HAMILTON    BANK  637 

In  this  connection  it  may  be  proper  to  notice,  that  in  order  to 
secure  the  dissolving  of  an  attachment,  even  in  case  of  the  death 
of  the  defendant,  it  has  been  thought  necessary  to  provide  therefor 
by  statute;  and  that  such  dissolution  of  an  attachment  is  limited 
to  cases  where  some  person  shall,  within  one  year  after  the  debtor's 
decease,  make  application  for  administration,  and  obtain  it  on  such 
application.   Stat.  1822,  ch.  93,  section  6.  Rev.  Stats.,  ch.  90,  section 

These  various  statutes,  authorizing  a  party  thus  to  acquire, 
not  indeed  a  property  in  the  estate  attached,  but  merely  a  charge 
or  incumbrance,  of  a  peculiar  character,  seem  to  have  been  uni- 
formdy  considered  by  this  court  as  conferring  upon  the  party  thus 
attaching  a  right  in  the  nature  of  a  lien.  Thus  in  Grosvenor  v.  Gold, 
9  Mass.  210,  211,  Sedgwick,  J.,  says,  "by  an  attachment  a  plaintiff 
has  a  lien  upon  the  subject  of  it  provisionally;  that  is,  to  the 
amount  of  the  judgment  he  may  finally  recover;  and  in  so  much 
is  the  absolute  property  of  the  defendant  diminished."  In  Petty  place 
V.  Dutch,  13  Pick.  (Mass.)  392,  it  was  said  by  the  court,  "an  attach- 
ment constitutes  a  lien."  So  in  Arnold  v.  Brown,  24  Pick.  (Mass.) 
95,  the  court  say,  "an  attachment  constitutes  a  mere  lien  on  the  prop- 
erty. The  effect  of  the  sale"  of  the  same  afterwards  by  the  defend- 
ant "will  be  to  pass  the  general  property  incumbered  by  the  attach- 
ment." In  Smith  v.  Bradstreet,  16  Pick.  (Mass.)  264,  it  was  held  that 
an  attachment  of  property  would  authorize  the  attaching  creditor  to 
appear,  as  a  party  in  interest,  to  oppose  the  probate  of  a  will  devis- 
ing the  premises  attached  to  another  person  in  exclusion  of  the  heir 
at  law,  as  whose  estate  it  was  attached. 

That  an  attachment  creates  a  valid  lien,  was  held  also  in  the 
District  Court  of  the  United  States  for  tlie  District  of  Vermont,  in 
Downer  v.  Brackett,  5  Law  Reporter  392,  decided  in  1824.  It  was 
there  ruled  that  an  attachment  on  mesne  process  binds  the  lands  or 
goods  attached,  during  the  time  fixed  by  law,  as  effectually  as  a 
judgment  binds  in  England.  See  also  H  aught  on  v.  Eustis,  5  Law 
Reporter  505.  In  New  Hampshire  the  question  has  been  very  re- 
cently considered  in  the  case  of  Kittredge  v.  Warren,  7  Law  Re- 
porter yy,  and  the  doctrine,  that  an  attachment  constitutes  a  lien, 
fully  sustained — in  a  case  where  the  question  raised  as  to  the 
proper  construction  to  be  given  to  the  saving  clause  in  the  United 
States  Bankrupt  Act  of  1841 — in  a  very  able  and  learned  opinion  of 
Chief  Justice  Parker. 

We  are  satisfied  that  under  the  laws  of  Massachusetts  an  at- 
tachment is  a  lien  or  incumbrance  upon  the  property  attached.  It 
fastens  itself  upon  the  property,  and  whoever  takes  the  property 
takes  it  cum  onere.  It  is  constantly  spoken  of  as  a  lien  in  the 
books  of  reports,  in  the  agreements  of  the  bar,  and  in  the  opinions 
of  the  bench.  It  is  not  a  lien  in  that  sense  which  requires  the  party 
to  be  in  possession  of  the  property  thus  incumbered  or  charged 
with  it.  An  attachment  of  real  estate  does  not  require  a  change 
of  possession.  But  that  does  not  make  it  the  less  a  lien  in  the  sense 
which  we  attach  to  that  term.  Such  would  be  the  case  of  all  liens 
under  judgments,  where  judgments  create  a  lien.    The  only  dis- 


5-.S  JUDGMENT 

tinction  to  be  taken  between  the  cases  of  lien  by  attachment  and 
lien  bv  a  jiuli^incnt  is,  that  in  the  latter  case  the  debt  is  ascertamed 
and  tVxed ;  the  party  has  proceeded  one  step  further  in  the  series  of 
acts  necessary  to  give  effect  to  his  Hen.  But  does  this  really  make 
the  cases  to  differ,  where  nothing  subsequently  occurs  to  prevent 
the  plaintiff  from  proceeding  with  his  action  so  far  as  to  terminate 
it  bv  a  judgment  in  his  favor?  Where  such  judgment  is  actually 
rendered,  it  gives  effect  to  the  attachment,  and  everything  relates 
back  to  the  time  when  the  attachment  was  made.  A  judgment  in 
England  and  in  New  York  does  not  give  any  actual  legal  estate  m 
the'' property  attached,  but  a  lien  that  operates  to  vest  such  title 
upon  a  seizure  and  transfer  on  execution;  and  which,  when  per- 
fected, relates  back  to  the  time  of  the  judgment.'"^ 


SECTION  9.    ACTIONS  ON  JUDGMENTS 

STEWART  V.    PETERSON'S   EXECUTORS 

Supreme  Court  of  Penksylvania.  i86q 

63  Pa.  St.  230"* 

Sharswood,  J. :  At  common  law  where  a  party  had  recovered 
a  judgment  in  a  personal  action,  and  suffered  a  year  and  a  day  to 
elapse  without  taking  out  execution,  he  was  driven  in  order  to  reap 
the  fruits  of  it  to  a  new  action  of  debt  upon  the  judgment.  The 
statute  of  Westm.  II,  13  Edw.  I.,  St.  i,  ch.  45,  first  gave  a  writ  of 
scire  facias  in  such  a  case,  as  was  the  law  previously  in  real  actions : 
6  Bacon's  Abr.  tit.  "Scire  Facias,"  C. ;  Roberts  Dig.  240.  The  right 
to  resort  to  the  former  action  still  remained,  and  it  seerns  to  be 
the  settled  doctrine  that  it  might  be  maintained  as  well  wnthin  the 


'"Rev.  Laws  ]*^Iass.  (1902),  ch.  167,  §  38.  The  attachment  is  effective  for 
thirty  days  after  judgment.  Sec.  54.  In  attaching  land  the  officer  need  not 
enter  on  the  land  or  be  within  view.  Sec.  58;  Taylor  v.  Mixter,  11  Pick. 
(Mass.)  341  (1831).  But  no  attachment  of  land  or  of  a  leasehold  estate  shall 
be  valid  against  a  subsequent  attaching  creditor  or  purchaser  in  good  faith  for 
value  unless  the  officer  deposits  a  certified  copy  of  the  original  writ  in  the 
registry  of  deeds  for  the  county  in  which  the  land  lies.  Sec.  59.  Attachments 
may  be  dissolved  by  giving  bond.  Sees.  88,  116.  If  the  land  is  not  attached 
on 'mesne  process,  the  officer  in  making  levy  shall  forthwith  deposit  in  the 
registry  of  deeds  a  copy  of  the  execution  wath  a  memorandum  that  the  execu- 
tion is'in  his  hands  for  the  purpose  of  taking  the  land  and  no  taking  shall  be 
valid  against  a  purchaser  in  good  faith  for  value  and  without  notice,  before 
such  copy  is  deposited.  Ch.  178,  §  4;  Oiven  v.  Neveau,  128  Mass.  427  (1878)  ; 
Croachcr  v.  Oesting,  143  Mass.  195,  9  N.  E.  532  (1887). 

The  practice  of  attaching  real  and  personal  property  on  mesne  process 
to  be  held  as  securitv  for  the  satisfaction  of  the  judgment  prevails  throughout 
New  England.  See  Maine  Rev.  Stat.  (1903),  ch.  83,  §§  24-79;  New  Hampshire 
Laws  (1911).  ch.  45,  §1;  Connecticut  Gen.  Stat.  (1902),  ch.  56;  Vermont 
Pub.  Stat.  (1906),  §§  1450-1458,  1782-1791;  R.  I.  Gen.  Laws  (1909).  ch.  301, 
De  Wolf  v.  Murphy,  11  R.  I.  630  (1877). 

"Extract  from  the  opinion  of  the  court. 


STEWART  V.    PETERSON  639 

year  as  af tervv^ards ;  so  that  even  though  the  party  might  issue  exe- 
cution, he  could  still  sue  an  original  in  debt.  It  is  laid  down  in 
the  Year  Book,  43  Edw.  Ill,  2,  6,  that  "if  one  recover  upon  a  statute 
merchant,  the  statute  gives  an  execution  by  capias  and  also  against 
the  land,  notwithstanding  he  can  have  a  writ  of  debt."  This  au- 
thority is  relied  upon  as  establishing  the  point  by  the  most  respecta- 
ble of  our  standard  writers:  Com.  Dig.  "Debt,"  A.  2;  2  Bacon's 
Abr.  tit.  "Debt,"  A. ;  Wheaton's  Selwyn,  6i6,  7th  Amer.  Ed.  The 
weight  of  the  American  cases  is  the  same  way;  Clark  v.  Goodwin, 
14  Mass.  237 ;  Hale  v.  Angel,  20  Johns.  (N.  Y.)  342 ;  Church  v.  Cole, 
I  Hill  (N.  Y.)  645;  Denison  v.  Williams,  4  Conn.  402.  It  is  not  a 
valid  objection  to  the  action  that  at  the  time  it  was  commenced,  the 
plaintiff  could  have  proceeded  by  execution  upon  the  original  judg- 
ment. Headley  v.  Rohy,  6  Ohio  523 ;  Kingsland  v.  Forest,  19  Ala. 
519;  White  River  Bank  v.  Downess,  29  Vt.  332;  Greathouse  v. 
Smith,  3  Scam.  (111.)  541;  Davison  v.  Nehaker,  21  Ind.  334.  The 
reason  for  this  was  that  at  common  law  the  plaintiff  could  have 
execution  only  for  the  amount  of  the  judgment  without  interest. 
In  order  to  recover  that  he  must  resort  to  a  new  action.  Hence  our 
Act  of  1700  (i  Smith's  Laws,  7)  provided  that  "lawful  interest  shall 
be  allowed  to  tlie  creditor  for  the  sum  or  value  he  obtained  judg- 
ment for,  from  the  time  the  said  judgment  was  obtained  till  the  time 
of  sale  or  till  satisfaction  be  made."  There  exists  no  reason  why 
the  same  rule,  which  as  we  have  seen  obtains  in  actions  of  debt  on 
the  judgment,  should  not  apply  to  proceedings  by  scire  facias,  which 
have  so  completely  and  so  properly  taken  their  place  in  this  state.^^ 

"■3  Blackstone's  Commentaries,  160.  In  modern  English  practice  an  action 
will  lie  on  a  judgment  or  order  which  finally  establishes  a  debt.  Hodsoll  v. 
Baxter,  E.  B.  &  E.  884  (1858)  ;  In  re  Boyd,  L.  R.  (1895),  i  Q.  B.  611 ;  Godfrey 
v.  George,  L.  R.  (1896),  i  Q.  B.  48;  Seldon  v.  Wilde,  L.  R.  (1910),  2  K.  B.  9. 
And  a  foreign  judgment  can  be  enforced  in  this  way  alone.  Grant  v.  East  on, 
L.  R.  (1883),  13  Q.  B.  302;  Nouvion  v.  Freeman,  L.  R.  (1889),  15  App.  Cas.  i ; 
Pemberton  v.  Hughes,  L.  R.  (1899),  I  Ch.  781.  But  if  an  action  of  debt  is 
brought  on  a  domestic  judgment  which  can  be  enforced  by  execution,  the 
plaintiff  "will  run  the  risk  of  having  it  stayed  as  an  abuse  of  the  process  of  the 
court,  and  probably  have  to  pay  the  costs."  Per  Lindley,  M.  R.,  in  Pritchett 
V.  Englisli  and  Colonial  Syndicate,  L.  R.  (1899),  2  Q.  B.  428.  The  right  to 
sue  on  a  judgment^  is  barred  by  the  English  statute  of  limitations  in  twelve 
years.  Hebblethivaite  v.  Peever,  L.  R.  (1891),  i  Q.  B.  124;  Jay  v.  Johnstone, 
L.  R.  (1893),  I  Q-  B.  25.  At  common  law,  a  presumption  of  payment  arose 
after  the  lapse  of  twenty  years.  Miller  v.  Smith,  16  Wend.  (N.  Y.)  425  (1836)  ; 
Maxwell  v.  De  Valinger,  2  Pennew.  (Del.)  504,  47  Atl.  381  (1900) ;  Robert^ 
y.  Powell.  210  Pa.  KOA  6n  Atl  258  (1905)  ;  Horn  V.  Sayer,  184  111.  App.  326 
(1913),  which  might  be  rebutted  by  competent  evidence,  Johnson  v.  Tuttle, 
9  N.  J.  Eq.  365  (1853)  ;  Walker  v.  Robison,  136  Mass.  280  (1884). 

Scire  Facias 

"In  Foster,  sci.  fa.  2,  it  is  said  that  scire  facias  post  annum  et  diem 
lay  at  common  law  in  real  actions  and  on  a  writ  of  annuity,  where  the  plain- 
tiff did  not  sue  out  execution  on  his  judgment  within  a  year  and  a  day.  In 
personal  actions,  prior  to  the  statute  of  ^A^estminster  II  (13  Edw.  I,  ch.  45), 
if  the  plaintiff  did  not  have  execution  within  a  year  and  a  day,  he  was  put  to  a 
new  action  upon  his  judgment.  This  statute,  however,  extended  the  remedy 
by  scire  facias  to  personal  actions,  and  its  provisions  have  been  re-enacted 
generally  in  the  United  States,  though  the  new  acts  have  generally  extended 


640  junr.Mr.NT 

AMES  V.  HOY 

Supreme  Court  of  California,  1S59 

12  Cal.  II 

Action  of  debt  on  a  decree  for  a  sum  of  money  obtained  by 
the  plaintiff  aj^ainst  the  defendant  in  the  District  Court  of  Nevada 
County.  The  case  was  tried  without  a  jury,  the  plaintiff  had  judg- 
ment and  defendant  appealed. '^^ 

Baldwin,  J. :  Plaintiff  recovered  a  judgment  in  the  district  of 
Nevada  County,  In  October,  1854,  for  a  sum  of  money.  The  judg- 

tiie  time  ^\•ithin  which  execution  may  issue  without  revival  by  scire  facias. 
Treatinp:  of  the  methods  of  executing  judgments,  Bhickstone  says  (book  3,  p. 
421)  :  'But  all  these  writs  of  execution  must  be  sued  out  within  a  year  and  a 
day  after  the  judgment  is  entered;  otherwise  the  court  concludes  prima  facie 
that  the  judgment  is  satisfied  and  extinct.  Yet,  however,  it  will  grant  a  writ 
of  scire  facias  in  pursuance  of  St.  Westm.  II,  13  Edw.  i,  ch.  45,  for  the 
defendant  to  show  cause  why  the  judgment  should  not  be  revived  and  execu- 
tion had  against  him,  to  which  the  defendant  may  plead  such  matter  as  he 
has  to  allege  in  order  to  show  why  process  of  execution  should  not  be  issued ; 
or  the  plaintiff  may  still  bring  an  action  of  debt  founded  on  his  dormant 
judgment,  which  was  the  only  method  of  revival  allowed  by  the  common  law.' 
It  will  thus  be  seen  that  the  statute  of  Westminster  II  served  to  extend  to 
personal  actions  the  remedy  by  scire  facias  to  revive  a  dormant  judgment, 
which  theretofore  existed  at  common  law  only  as  respected  real  actions  and 
writs  of  annuity.  It  will  be  observed  from  the  quotation  from  Blackstone 
that  the  judgment,  in  default  of  execution  within  a  year  and  a  day,  did  not 
become  'dead,'  but  merely  dormant.  It  still  subsisted  as  a  debt,  and  could 
still  be  the  foundation  of  a  new  action  of  debt,  or,  at  the  election  of  the 
plaintiff,  be  revived  by  scire  facias,^  so  as  to  again  become  a  lien  tipon  which 
execution  might  issue.  And  the  writ  of  scire  facias  to  revive  a  judgment  was 
not  a  new  action,  but  a  continuation  of  the  old  one.  Eld  red  v.  Hazlett,_^%V2.. 
St.  16."   Per  Keller,  J.,  in  Davis  v.  Davis,  174  Fed.  786  (1909). 

In  some  states  the  judgment  on  scire  facias  is  that  plaintiff  have  execu- 
tion of  the  judgment  described  in  the  writ.  Tindall  v.  Carson,  16  N.  J.  L.  94 
(1837);  Bertram  v.  Jl'aterman,  18  Iowa  529  (1865);  Houston  v.  Emery,  76 
Tex.  282,  13  S.  W.  264  (1890)  ;  Rogers  v.  Hollingszvorth,  95  Tenn.  357,  32  S. 
W.  197  (1895)  ;  Trimble  v.  Elkln,  88  Mo.  App.  229  (1901).  In  others  a  new 
judgment  is  entered  for  the  amount  then  due  upon  the  original  judgment  with 
interest.  "The  judgment  is  quod  recuperet  instead  of  a  bare  award  of  execu- 
tion." Dirffy.  Wynkooty,  74  Pa.  St.  .^oo  (1873)  ;  Kistlcr  v.  Mosser,  140  Pa.  St. 
367,  2irStT7^357  (1891)  ;  Slayton  w.  S'milie,  66  Vt.  197,  28  Atl.  871  (1894); 
Gregory  v.  Perry,  yi  S.  Car.  246,  50  S.  E.  787  (1904). 

In  a  number  of  states  the  writ  of  scire  facias  is  abolished  and  a  judg- 
ment is  revived  by  an  action  under  the  code.  N.  Y.  Code  Civ.  Pro.,  §§  1376- 
78  (1913)  ;  Wallace  v.  Swinton,  64  N.  Y.  188  (1876)  ;  Haupt  v.  Burton,  21 
Mont.  572,  55  Pac.  no,  69  Am.  St.  Rep.  698  (1898)  ;  Wilson  v.  McCornack, 
10  Okla.  180,  61  Pac.  1068  (1900)  ;  Davidson  v.  Hunter,  22  Utah  117,  61  Pac. 
556  (1900)  ;  Scars  v.  Kilbourne,  28  Wash.  194  (1902). 

Where  a  judgment  is  sued  on  and  a  second  judgment  recovered  the  first 
judgment  is  not  merged.  Preston  v.  Perton,  Cro.  Eliz.  817  (1600)  ;  Mumford 
V.  Stacker,  i  Cow.  (N.  Y.)  178  (1823)  ;  Weeks  v.  Pearson,  5  N.  H.  324  (1831)  ; 
Stockwcll  v.  Walker,  3  Ind.  215  (1851)  ;  Lawton  v.  Perry,  40  S.  Car.  255,  18 
S.  E.  861  (1893)  ;  Kelly  v.  Hamblen,  98  Va.  383,  36  S.  E.  491  (1900)  ;  Springs, 
V.  Pharr,  131  N.  Car.  191,  42  S.  E.  590,  92  Am.  St.  775  (  1902).  Contra  :  Gould 
V.  Haxden,  63  Ind.  443  (1878).  Compare  Collinawood  v.  Carson.  2  Watts  & 
S^JTa.)  220  (1841)  ;  CujSter  v.  Dctterer. j^^-Ms  81  S.  (Pa.)~28  (1841),  with 
Furshtv.  Overdeer,  T,  Watts"  &  S.   (lla.)   470   (1842). 

'''The  statement  of  facts  is  abridged  and  the  arguments  of  counsel  omitted. 


AMES  V.    HOY  641 

ment  was  in  an  equitable  suit  brought  to  dissolve  a  copartnership 
and  settled  the  firm  accounts,  and  for  a  decree  for  the  balance  due. 
The  records  of  Nevada  were  consumed  by  fire  before  the  institution 
of  this  suit,  and  the  papers  and  minutes  of  the  court  evidencing  this 
judgment  destroyed.  An  action  at  law  is  now  brought  to  recover  the 
amount  of  this  judgment  or  decree.  Several  questions  are  made : 

I.  That  suit  can  not  be  maintained  in  this  state  on  a  domestic 
judgment.  At  common  law,  actions  could  be  so  maintained.  ( i  Ch. 
PI.  103-4.)^*  There  is  nothing  in  our  statute  which  divests  the  right ; 
and  the  policy  and  inconvenience,  suggested  by  the  appellant,  applied 
as  well  in  England  as  here.  The  chief  argument  is,  that  there  is  no 
necessity  for  a  right  of  action  on  a  judgment,  inasmuch  as  execu- 
tion can  be  issued  to  enforce  the  judgment  already  obtained,  and 
no  better  or  higher  right  or  advantage  is  given  to  the  subsequent 
judgment.  But  this  is  not  true  in  fact,  as  in  many  cases  it  may  be 
of  advantage  to  obtain  another  judgment  in  order  to  save  or  prolong 
the  lien ;  and  in  this  case  the  advantage  of  having  record  evidence 
of  the  judgment  is  sufficiently  perceptible.  The  argument  that  a  de- 
fendant may  be  vexed  by  repeated  judgments  on  the  same  cause  of 


"At  common  law  a  judgment  for  a  sum  certain  is  a  debt  of  record  and 
an  action  of  debt  will  lie  thereon  as  soon  as  recovered  irrespective  of  the 
plaintiff's  right  to  take  out  execution.  Barracliff  v.  Grisconi,  Coxe,  _N.  J.  L. 
193  (1793)  ;  Clark  V.  Goodzvin,  14  Mass.  22,7  (1817)  ;  Denison  v.  IVilliams,  4 
Conn.  402  (1822)  ;  Hale  v.  Angel,  20  Johns.  (N.  Y.)  342  (1823)  ;  Richards  v. 
Bickley,  13  Serg.  &  R-  (PaJ,j95  (1825)  ;  Goodrich  v.  Colvin,  6  Cow.  (N.  Y.) 
397  (1825;  ;  ^rnlth  v.  Mumford,  9  Cow.  (N.  Y.)  26  (182S)  ;  Tindall  v.  Carson, 
16  N.  J.  L.  94  (1837)  ;  Church  v.  Cole,  1  Hill  (N.  Y.)  645  (1841)  ;  Millard  v. 
Whifaker,  5  Hill  (N.  Y.)  408  (1843);  Lockwood  v.  Barefield,  7  Ga.  393 
(1849);  McDonald  v.  Butler,  3  Mich.  558  (1855);  White  River  Bank  v. 
Doivner,  29  Vt.  332  (1857)  ;  Ives  v.  Finch,  28  Conn.  112  (1859)  ;  Griffin  v. 
Eaton,  27  111.  379,  81  Am.  Dec.  233  (1862)  ;  O'Neal  v.  Kittredge,  85  Mass.  470 
(1862)  ;  Simpson  V.  Cochran,  23  Iowa  81,  92  Am.  Dec.  410  (1867)  ;  Burnes  v. 
Simpson,  9  Kans.  658  (1872)  ;  Linton  v.  Hurley,  114  Mass.  76  (1873)  ;  Wilson 
v.  Hatfield,  121  Mass.  551  (1877)  ;  Boyd  v.  Mann,  9  Baxt.  (Tenn.)  349  (1878)  ; 
Becknell  v.  Beckncll,  no  Ind.  42,  10  N.  E.  414  (1886)  ;  Copeland  v.  Todd,  30 
S.  Car.  419,  9  S.  E.  341  (1888)  ;  Morse  v.  Pearl,  67  N.  H.  317,  36  Atl.  255,  68 
Am.  St.  672  (1892);  Hnrtrr  V.  Hnrter.  4  Pa.  D.  R.  211  ClSo';')  :  Harris  V. 
Steiner,  30  Misc.  Rep.  624,  62  N.  Y.  S.  752  (1900)  ;  Kelly  v.  Hamblen,  98  Va. 
383,  36  S.  E.  491  (1900)  ;  Treat  v.  Wilson,  65  Kans.  729,  70  Pac.  893  (1902) ; 
Town  of  Fletcher  v.  Hickman,  165  Fed.  403  (1908  Colo.)  ;  Ratchford  v.  Cov- 
ington County  Stock  Co.,  172  Ala.  461,  55  So.  806  (1911)  ;  Bashor  v.  Beloit, 
20  Idaho  592,  119  Pac.  55  (1911).  In  some  jurisdictions  it  has  been  held  that 
the  creditor  does  not  have  an  absolute  right  to  sue  on  his  judgment  without 
showing  some  special  reason  or  necessity  therefor.  Pitccr  v.  Riissel,  4  Ore. 
124  (1871)  ;  Stevens  v.  Stone,  94  Tex.  415,  60  S.  W.  595  (1901)  ;  Succession  of 
Beckham,  16  La.  Ann.  352  (1861)  ;  Solen  v.  Virginia  &  T.  R.  Co.,  15  Nev.  313 
(1880).  In  Kentuckj-  a  second  judgment  can  not  be  obtained,  the  remedy  is 
to  enforce  the  original  judgment.  Cundiff  v.  Trimble,  52  S.  W.  940,  21  Ky. 
L.  657  (1899).  And  in  a  number  of  states  by  statute  or  code  an  action  can 
not  be  brought  on  a  domestic  judgment  without  leave  of  court  upon  cause 
shown.  N.  Y.  Code  Civ.  Pro.,  §  1913;  Shuman  v.  Strauss,  52  N.  Y.  404  (1873)  ; 
Partridge  v.  Monihan,  no  N.  Y.  S.  539,  59  Misc.  234  (1908)  ;  Rando  v.  Na- 
tional Park  Bank  of  New  York,  137  App.  Div.  100,  121  N.  Y.  S.  1048  (1910)  ; 
McDonald  v.  Dickson,  85  N.  Car.  248  (1881)  ;  Cole  v.  Mitchell,  77  Wis.  131, 
45  N.  W.  948  (1890)  ;  Merchants'  Nat.  Bank  v.  Gaslin,  41  Minn.  552,  43  N.  W. 
483  (1889)  ;  Wilson  v.  Tucker,  ids  Iowa  55,  74  N.  W.  908  (1898)  ;  Brock  v. 
Kirkpatrick,  60  S.  Car.  2^2,  38  S.  E.  779,  85  Am.  St.  847  (1900). 
41 — Civ.  Proc. 


642  JUDGMENT 

action  is  answered  \>y  the  suggestion  that  an  effectual  remedy  to  the 
party  against  tliis  annoyance  is  the  payment  of  the  debt. 

2.  It  is  also  argued  that  the  destruction  of  the  book  containing 
the  judgment  is  the  destruction  of  the  judgment  itself;  so  that  the 
primary  evidence  of  the  judgment  being  removed,  no  other  proof  of 
it  is  admissible.  We  think  that  this  position  is  alike  indefensible  in 
reason  and  on  authority."^ 

3.  The  last  objection  is,  that  no  action  can  be  maintained  at 
law  upon  a  decree  in  equity  for  a  specific  sum  of  money.  The 
action  in  the  case  before  us  may  be  considered  to  be  in  debt,  or  as 
an  action  in  the  nature  of  the  action  of  debt,  under  the  old  system. 
This  action  was  proper  whenever  a  sum  liquidated  and  made  definite 
by  contract  or  judgment  was  recoverable,  and  we  are  not  able  to 
perceive  why  a  recovery  in  equity  for  a  certain  and  ascertained 
amount  is  not  as  legitimate  a  basis  for  action  as  a  judgment  at  law. 
Some  of  the  most  respectable  courts  in  the  Union  have  so  adjudged, 
and  we  think  properly.  See  15  Mass.  196,  and  other  cases  cited 
therein-^*^ 

Judgment  affirmed. 


"Accord:  Stockhridge  v.  West  Stockbridge,  12  Mass.  400  (1815),  semhle; 
Jackson  ex  dem  Taylor  v.  Cullum,  2  Blackf.  (Ind.)  228,  18  Am.  Dec.  158 
(1829)  ;  Neivcomb  v.  Drummond,  4  Leigh  (Va.)  57  (1832)  ;  Jackson  ex  dem. 
M'Fail  V.  Craiiiords,  12  Wend.  (N.  Y.)  533  (1834)  ;  MUthnore  v.  Miltimore, 
40  Pa.  St.  151  (1861)  ;  Mason  v.  Bull,  26  Ark.  164  (1870^;  Parry  v.  U'alscr,  57 
MorT59"(i874)  ;  Mandcville  v.  Reynolds,  68  N.  Y.  528  (1877);  Richard's 
Appeal,  122  Pa.  St.  547,  15  Atl.  903  (1888).  Contra:  Walton  v.  McKesson,  64 
K.  Car.  77  (1870),  and  see  Cox  v.  Stout,  85  Ind.  422  (1882).  General!}',  a  court 
determines  the  authenticity  of  its  own  records  by  inspection,  Eiscnhart  v. 
SJaymaker  jAStrg.  &  R.  (Pa.)  153  (1826)  ;  Anderson  v.  Dudley,  $  Call  CVaTJ 
529  \'i^i)\rrcat  V.  Maxwell,  82  Maine  76,  19  Atl.  98  (1889).^  The  issue  on 
the  plea  of  nul  ticl  record  must  be  tried  by  the  court,  not  the  jury.  White  v. 
Elkin,  6  Blackf.  (Ind.)  123  (1842)  ;  Carter  v.  IVilson,  i  Dev.  &  Bat.  (N.  Car.) 
362(1835).  Compare  0-a«.'/ori  V.  5"i»r??!o»/o«,  7  Port.  (Ala.)  110(1838).  If 
the  judgment  is  rendered  by  a  co-ordinate  court  of  the  same  state  it  should  be 
proved  by  a  transcript  or  exemplification  in  accordance  with  the  local  law. 
Smith  V.  Frost,  5  Hill  (N.  Y.)  431  (1843)  ;  Kinsey  v.  Ford,  38  Barb.  (N.  Y._) 
195  (1862)  ;  N.  Y.  Code  Civ.  Pro.,  §  939;  Dickinson  v.  Chesapeake  &  Ohio 
R.  Co.,  7  W.  Va.  390  (1874).  Judgments  of  sister  states  must  be  authenticated 
in  accordance  with  the  act  of  Congress  of  May  26,  1790;  U.  S.  Comp.  Stat. 
(1913),  §  1519.  See  Pa.  P.  &  L.  Dig,  of  Dec.  10,080;  Santa  Clara  Valley  Mill 
&  Lumber  Co.  v.  Prescott,  127  111.  App.  644  (1906)  ;  Flammond  v.  Knox,  125 
App.  Div.  9,  109  N.  Y.  S.  367  (1908)  ;  Flack  v.  Andrews,  86  Ala.  395,  5  So.  452 
(1888)  ;  Davis  v.  Davis,  174  Fed.  786  (1909). 

"'To  constitute  a  cause  of  action  the  judgment  must  be  final,  personal,  un- 
satisfied and  for  the  payment  of  money.  Seligman  v.  Kalkman,  17  Cal.  152 
(i860);  Brown  V.  Bridge,  106  Mass.  563  (1871)  ;  Smith  v.  Kander,  58  Mo. 
App.  61  (1894)  ;  Pratt  v.  Jones,  22  Vt.  341,  54  Am.  Dec.  80  (1850)  ;  Hutchin- 
son V.  Gillespie,  II  Exch.  798  (1856). 

In  England,  foreign  and  colonial  decrees  in  chancery  for  the  payment  of 
money  could  be  enforced  by  actions  at  law.  Sadler  v.  Robins,  i  Camp.  253 
(1808);  Henley  V.  Soper,  8  B.  &  C.  16  (1828),  but  not  domestic  decrees, 
Carpenter  v.  Thornton,  3  B.  &  Aid.  52  (1819)  ;  Bailey  v.  Bailey,  L.  R.  (1884), 
13  Q.  B.  Div.  855.  In  a  recent  case,  however,  an  order  for  the  payment  of 
money  made  in  the  Chancery  Division  was  enforced  by  an  action  in  the 
King's  Bench  Division  of  the  High  Court.  Seldon  v.  Wilde,  L.  R.  (1910),  2 
K.  B.  Q.  In  the  United  States,  "in  all  cases  where  an  action  of  debt  can  be 
maintained  upon  a  judgment  at  law  to  recover  a  sum  of  money  awarded  by 


STEPHENS   V.    HOWE  643 

BENJAMIN  F.  STEPHENS  v.  MANLEY  HOWE 
Supreme  Judicial  Court  of  Massachusetts,  1879 

127  Mass.  164'' 

Lord  J.:  This  is  an  action  against  Manley  Howe  and  Henry 
R.  Stevens,  brought  upon  a  judgment  recovered  in  the  Circuit  Court 
of  the  United  States  for  the  Second  Circuit  against  the  defendants, 
who  were  formerly  partners.  Howe  alone  defends.  No  question 
is  made  as  to  the  jurisdiction  of  the  court,  in  which  the  judgment 
was  recovered,  over  the  parties  to  the  suit  and  of  the  subject  matter 
of  it.  The  parties  defendant  appeared  and  defended.  So  far  as  we 
understand  the  offer  of  evidence,  the  rejection  of  which  is  com- 
plained of,  it  was  an  offer  to  prove  that,  before  judgment,  the  claim 
in  suit  had  been  wholly  or  in  part  paid  by  Stevens.  Of  course,  such 
evidence  is  incompetent  while  the  judgment  remains  unreversed.^* 

Exceptions  overruled. 


SAVAGE  V.  EVERMAN 

SuPREMJ  rpTTT^T  nT7  Pftvjtj<;vtvatvjta^   1 8/2 
70  Pa.  St.  315 

Error  to  the  District  Court  of  Philadelphia. 

This  was  an  action  of  debt  brought  by  John  W.  Everman  against 
John  R.  Savage  and  others  trading  as  Savage,  Martin  &  Co.  on  a 
judgment  by  default  in  the  Supreme  Court  of  New  Jersey   for 

such  judgment,  the  like  action  may  be  maintained  upon  a  decree  in  equity, 
provided  it  is  for  a  specific  amount  and  that  the  records  of  the  two  courts 
are  of  equal  dignity  and  binding  obligation."  Nations  v.  Johnson,  24  How. 
(U.  S.)  195,  16  L.  ed.  628  (i860)  ;  Pennington  v.  Gibson,  16  How.  (U.  S.)  65, 
14  L.  ed.  847  (1853)  ;  Evans  v.  Tnt.p.ni  r\  '^ex^,  ^  R.  (Pa.)  2^2.  11  Am.  Dec. 
717  (1823)  ;  Thrall  v.  Waller,  13  Vt.  231,  27  Am.  Dec.  592  (1841)  ;  Warren  v. 
McCarthy,  25  111.  95  (i860)  ;  Dubois  v.  Dubois,  6  Cow.  (N.  Y.)  494  (1826)  ; 
Mutual  Life  Ins.  Co.  v.  Newton,  50  N.  J.  L.  571,  14  Atl.  756  (1888).  Contra: 
Hugh  V.  Higgs,  8  Wheat.  (U.  S.)  697,  5  L.  ed.  719  (1823)  ;  Boyle  v.  Schindel, 
52  Md.  I   (1879). 

""Part  of  the  opinion  is  omitted. 

°*"To  an  action  on  a  judgment  or  decree,  no  defense  should  be  enter- 
tained which  might  have  been  interposed  to  defeat  the  original  action."  2 
Freeman  on  Judgments,  §  435;  Middleton  v.  Hill,  Cro.  Eliz.  588  (1597); 
Biddlc  V.  Wilkins,  i  Pet.  (U.  S.)  686,  7  L.  ed.  315  (1828)  ;  Brown  v.  Trulock, 
4  Blackf.  (Ind.)  429  (1837)  ;  Crawford  v.  Simonton,  7  Port.  (Ala.)  no 
(1838)  ;  Jackson  v.  Fletcher,  Morris  (Iowa)  230  (1843)  ;  Tap  pan  v.  Heath,  16 
N.  H.  34  (1844)  ;  Dickson  v.  Wilkinson,  3  How.  (U.  S.)  57,  il  L.  ed.  491 
(184s);  Bird  V.  Smith,  34  Maine  63,  56  Am.  Dec.  635  (1852);  Guinard  v. 
Heysinger,  15  111.  288  (1853)  ;  Burton  v.  Stezvart,  11  Ind.  238  (1858)  ;  Morris 
V.  Boomer,  16  Wis.  547  (1863);  Poorman  v.  Mitchell,  48  Mo.  45  (1871)  ; 
McAllister  v.  Singer  Mfg.  Co.,  64  Ga.  622  (1880)  ;  Morris  v.  Curry,  41  Ark. 
75  (1883)  ;  Kitteredge  v.  Martin,  141  Mass.  410,  6  N.  E.  95  (1886)  ;  Barton  v. 
ikadclyffe,  149  Mass.  275,  21  N.  E.  374  (1889)  ;  Hartcr  v.  Shull,  17  Colo.  App. 
162,  67  Pac.  911  (1902)  ;  Stihvell  v.  Smith,  219  Pa.  36,  61  Atl.  910  (1907). 


644  JUDGMENT 

$810.47.  The  (Icfcndanls  pleaded  "Nil  debucnint,"  "Nul  ticl  reeord," 
"Pavinent  with  leave"  and  a  special  plea,  and  on  the  trial  before 
Hare,  P.  J.,  ollered  to  prove  that,  before  the  commencement  of  the 
suit,  it  was  aijrced  between  Everman  and  the  defendants,  who  were 
all  residents  of  Pennsylvania,  that  certain  real  estate  of  the  defend- 
ants in  New  Jersey  should  lie  sold  at  sheriit's  sale  and  Everman 
should  purchase  and  take  title  to  the  same  in  full  satisfaction  and 
discharge  of  the  promises  and  sums  of  money  due  by  the  defendants. 
Accordingly  Savage  went  into  New  Jersey,  accepted  service  of  a 
summons  for  himself  and  his  partners,  judgment  was  obtained,  the 
same  set  forth  in  the  declaration;  and  a  sheriff's  sale  had  at  which 
plaintiff's  became  the  purchaser.  The  court  rejected  the  offer  and 
sealed  a  bill  of  exceptions.  A  verdict  was  rendered  for  the  plaintiff 
for  $862.24  and  defendants  took  out  a  writ  of  error."^* 

SiiARSWooD,  J. :  Anciently,  it  seems  to  have  been  considered  that 
nothing  could  be  pleaded  to  an  action  on  a  judgment  which  was 
matter  in  pais  and  not  of  record.  Thus  even  payment  w-as  held  (30 
Eliz.)  not  to  be  a  good  plea.  Ordway  &  Perote's  Case,  2  Leon.  213. 
Of  course  accord  and  satisfaction  fell  within  the  same  category. 
Littleford  V.  LeMayyi,  Cro.  Jac.  579.  For  remedy,  it  was  enacted 
by  the  statute,  4  Anne,  ch.  16,  section  12,  that  "where  any  action  shall 
be  brought  upon  any  single  bill,  or  where  action  of  debt  or  scire 
facias  shall  be  brought  upon  any  judgment,  if  the  defendant  hath 
paid  the  money  due  upon  such  bill  or  judgment,  such  payment  shall 
and  may  be  pleaded  in  bar  of  such  action  or  suit."  This  statute, 
as  to  this  and  some  other  sections,  was  reported  by  the  judges  of 
the  Supreme  Court  as  in  force  in  this  state.  3  Binn.  (Pa.)  625  ;  Rob- 
erts' Dig.  45.  There  is  a  similar  statute  in  New  Jersey.  Gulick  v. 
Loder,  i  Green  (N.  J.)  68.  It  is  said  in  2  Saund.  on  PI.  &  Ev.  115, 
that  accord  and  satisfaction  can  not  be  pleaded  under  this  statute. 
He  cites  4  Aloore  165,  but  that  must  be  a  mistake,  as  it  contains  noth- 
ing to  the  point.  Whether  under  this  statute  or  at  common  law,  the 
American  authorities  w^ithout  a  single  exception  that  I  can  find, 
maintain  the  contrary  doctrine — that  accord  and  satisfaction  is  a 
good  defense  to  an  action  or  other  proceeding  on  a  judgment.  JVit- 
terhy  v.  Mann,  11  John.  (N.  Y.)  568;  Boyd  v.  Hitchcock,  20  John. 
(N.  Y.)  76;  Le  Page  v.  McCrea,  i  Wend.  (N.  Y.)  164;  Brown  v. 
Feeter,  7  Wend.  (N.  Y.)  301;  Evans  v.  Wells,  22  Wend.  (N.  Y.) 
224,  341  ;  La  Farge  v.  Herter,  11  Barb.  (N.  Y.)  159;  Campbell  v- 
Booth,  4  Gill.  29;  McCullough  v.  Franklin  Coal  Co.,  21  Md.  256; 
Reid  V.  Hihbard,  6  Wis.  175  ;  Jones  v.  Rohcom,  3  Ind.  327;  Farmers' 
Bank  V.  Groves,  12  How.  (U.  S.)  51.  In  the  recent  case  of  Maute 
V.  Gross,  6  P.  F.  Smith  (Pa.)  250,  it  was  assumed,  apparently  with- 
out question,  that  such  was  the  law  in  this  state.  There  the  defend- 
ants confessed  a  judgment  in  favor  of  the  plaintiffs  under  a  cotem- 
poraneous  agreement  by  them,  that  they  would  accept  in  satisfaction 
lubricating  oil  of  a  certain  quality,  according  to  sample.  The  only 
question  was,  whether  oil  of  that  quality  had  been  furnished,  and  an 


"aTlie  statement  of  facts  is  abridged  and  the  arguments  of  counsel  and 
part  of  the  opinion  of  the  court  omitted. 


SAVAGE  V.    E\T:RMAN  645 

isstte  had  been  directed  to  determine  that  fact.  It  is  certainly  within 
the  spirit,  if  not  the  letter  of  the  statute  of  4  Anne,  to  admit 
as  a  good  plea  in  bar  whatever  in  law  or  equity  amounts  to  a  dis- 
charge and  satisfaction  of  the  debt  secured  by  tlie  judgment.  A  text 
writer  of  great  respectability  so  states  it:  2  Troubat  &  Haly,  13, 
edition  of  1853.  The  simple,  intelligible  and  well-settled  rule  on  this 
subject  is,  that  whenever  a  defense  exists,  v/hich  has  arisen  since  the 
judgment,  and  which  could  not  tlierefore  have  been  available  at  the 
time  it  was  rendered,  it  may  be  set  up  in  any  subsequent  proceeding. 
Cardesa  v.  Humes,  5  Serg.  &  R.  (Pa.)  65;  Thatcher  v.  Gammon,  12 
Mass.  267. 

Upon  this  principle  the  evidence  offered  by  the  defendants  ought 
to  have  been  received.  It  v/as  admissible  under  the  plea  of  pay- 
ment with  leave  to  give  the  special  matter  in  evidence.  As  no 
objection  was  made,  we  are  bound  to  presume  that  due  notice  was 
given  or  was  vi^aived.  The  matter  contained  in  tlie  offer  could  not 
have  availed  the  defendants  as  an  answer  to  the  demand  of  the  plain- 
tiff in  the  original  suit.  All  that  took  place  before  the  rendition  of 
the  judgment  was  a  mere  accord  witliout  satisfaction.  An  agreement 
to  accept  something  collateral  to  the  debt  is  witliout  consideration, 
and  therefore  not  binding.  What  made  it  effectual  was  actual  ac- 
ceptance by  the  plaintiff,  and  this  was  not  until  after  the  judgment 
Hearn  v.  Kiehl,  2  Wright.  (Pa.)  147.  Here,  by  the  accord,  a  house 
and  lot  was  agreed  to  be  accepted  in  satisfaction.  Afterwards,  and 
in  pursuance  of  this  accord,  it  was  actually  conveyed  to  the  plaintiff 
and  accepted  by  him.  It  matters  not  how  the  title  was  conveyed,  if 
it  was  under  and  in  pursuance  of  the  original  accord. 

Judgment  reversed.^^ 

^Conner  v.  Pennington,  I  Del.  Ch.  177  (1821)  ;  Brilcy  v.  Sugg,  i  Dev.  & 
B.  Eq.  (N.Car.)  366,  30  Am.  Dec.  172  (1836)  ;  La  Farge  v.  Herter,  9  N.  Y.  241 
(1853)  ;  Lyon  V.  Northrup,  17  Iowa  314  (1864)  ;  Thorn  v.  Wilson,  27  Ind.  370 
(1866)  ;  IVolcott  V.  Ensign,  53  Ind.  70  (1876)  ;  Potter  v.  Hartnett,  148  Pa. 
15,  23  Atl.  1007  (1892) ;  Lofland  v.  McDaniel,  i  Penn>-w.  (Del.)  416,  41  Atl.  882 
(1898)  ;  Roberts  v.  Pratt,  158  N.  Car.  50,  72,  S.  E.  129  (1911). 

A  payment  of  part  of  the  amount  due  upon  a  money  judgment  under  a 
parol  agreement  that  it  should  operate  as  a  satisfaction  in  full  will  not  dis- 
charge a  judgment,  DeJand  v.  Hiett,  27  Cal.  611,  87  Am.  Dec.  102  (1865); 
Moss  V.  Shannon,  i  Hilton  (N.  Y.)  173  (1856)  ;  Knight  v.  Cherry,  64  Mo.  513 
(1877)  ;  Mc Arthur  v.  Dane,  61  Ala.  539  (1878)  ;  Haggin  v.  Clark,  61  Cal.  I 
(1882)  ;  Weber  v.  Couch,  134  Mass.  26,  45  Am.  Rep.  274  (1883)  ;  Fletcher  v. 
Wurglcr,  97  Ind.  223  (1884)  ;  Madcley  v.  White,  2  Colo.  App.  408,  31  Pac.  181 
(1892).  Otherwise  where  there  is  a  sealed  release,  Braden  v.  Ward,  42  N.  J. 
L.  518  (1880);  Beers  v.  Hendrickson,  45  N.  Y.  665.  And  there  are  other 
authorities  which  hold  that  part  pajment  of  a  judgment,  by  way  of  compro- 
mise, may  under  all  the  circumstances  and  equities  of  the  case  amount  to  an 
accord  and  satisfaction.  Harper  V.  Graham,  20  Ohio  105  (1851)  ;  Booth  v. 
Campbell,  15  Md.  569  (1859)  ;  Clay  v.  Hoysradt,  8  Kans.  74  (1871)  ;  Case  v. 
Flawkins,  53  Miss.  702  (1876)  ;  Miller  v.  Lilly,  84  Ind.  333  (1882)  ;  Hcndrick__ 
V  Thomas  "inf)  Pn,  -y?  (1884)  ;  Neal  V.  Handley,  116  111.  418,  6  N.~E."45,  56 
AmrRep.  784  (1886)";  Pinson  v.  Puckctt,  35  S.  Car.  178,  14  S.  E.  393  (1891)  ; 
Fozvler  v.  Smith.  133  Pa  St  630,  2^  Atl.  744  (1893);  Brown  v.  Kern,  21 
wash.  211,  ST'Pac.  798  (1899). 

As  to  payment  by  joint  party  or  third  person  see  2  Black  on  Judgments 
(2d  ed.),  §  995. 


CHAPTER  VI 

Execution 

SECTION  I.    ISSUING  OF  THE  WRIT 

"Execution,  Executio,  and  signifietli  in  law  the  obtaining  of 
actual  possession  of  anything  acquired  by  judgment  of  law,  or  by 
fine  executory  levied,  whether  it  be  by  the  sheriff  or  by  the  entry 
of  the  party,  whereof  you  shall  read  more  hereafter."  Coke  on  Lit- 
tleton, 1543.^ 

"A  writ  of  execution  is  a  written  command  or  precept  to  the 
sheriff  or  ministerial  officer,  directing  him  to  execute  the  judgment 
of  the  court.  It  is  the  command  of  the  court  addressed  to  the  min- 
isterial ofificer  in  writing,  and  under  the  seal  of  the  court,  containing 
with  more  certainty  the  command  of  the  court,  and  expressed  with 
more  solemnity,  than  if  uttered  verbally  by  the  court.  It  is  neverthe- 
less the  command  of  the  court  to  the  officer  to  proceed  and  execute 
the  judgment  of  the  court."    Sutliff,  J.,  in  Kelly  v.  Vincent,  8  Ohio 

St.  415  (1858). 

New  York  Code  of  Civil  Procedure,  section  1364. 

"There  are  four  kinds  of  execution,  as  follows : 

"i.    Against  property. 

"2.    Against  the  person. 

"3.  For  the  delivery  of  the  possession  of  real  property  with  or 
without  damages  for  withholding  the  same. 

"4.  For  the  delivery  of  the  possession  of  a  chattel,  with  or  with- 
out damages  for  the  taking  or  detention  thereof. 

"An  execution  is  tlie  process  of  the  court,  from  which  it  is 
issued."^ 


*3  Blackst.  Comm.  412;  Bacon's  Abridgement,  "Execution";  Comyn's  Di- 
gest "Execution."  Tidd's  Practice  (gth  ed.)  993,  11  A.  &  E.  Encyc.  of  Law 
(2d  ed.)  609;  17  Cyc.  21. 

''Execution  issues  from  the  court  in  which  the  judgment  is  given,  Memo- 
randum, Cro.  Car.  34  (1626)  ;  Chandler  v.  Colcord,  i  Okla.  260,  32  Pac.  330 
(1893)  ;  Willamette  Real  Estate  Co.  v.  Hendrix,  28  Ore.  485,  42  Pac.  514,  52 
Am.  St.  800  (1895)  ;  Garnett  v.  Goldman,  39  Okla.  516,  135  Pac.  410  (1913), 
and,  in  the  absence  of  a  statute  or  rule  of  court  to  the  contrary  without 
special  leave  of  court,  Miller  v.  Mt7forc?._2_Serg.  &  R.  (Pa.)  35  (1815)  ; 
Little  v.  Cook,  I  Aikens  (Vt.)  363,  15  AmTT5ec.  698  fiSi^)  ;  Union  Bank  v. 
McChing,  9  Humph.  (Tenn.)  91  (1848)  ;  Irons  v.  McQuewan,  27  Pa.  St.  196, 
67  Am.  Dec.  456  (1856)  ;  Carpenter  v.  Vanscoten,  20  InaTso  (1863)  ;  Dorn  v 
Howe,  59  Cal.  129  (1881)  ;  Ensley  v.  McCorkle,  74  Ind.  240  (1881)  ;  Maloney 
I-  Real  Estate  B.  &  L.  Assn.,  57  Mo.  App.  384  (1894)  ;  Horrman  v.  Sherin, 
8  S.  Dak.  36,  65  N.  W.  434,  59  Am.  St.  Rep.  744  (1895)  ;  Bludworth  v.  Poole, 
21  Tex.  Civ.  App.  551,  53  S.  W.  717  (1899).  In  England,  leave  to  issue 
execution  is  required  where  six  years  have  elapsed  since  the  judgment  and  in 
certain  other  cases  as  provided  in  Order  XLII,  rule  2^  of  the  Supreme  Court. 
By  the  New  York  Code  of  Civil  Procedure,  §  1375,  executions  are  of  course 
within  five  years  after  judgment,  after  that  time  there  must  be  an  order  of 
court  granting  leave,  §§  1377,  1381.  So  also,  an  order  is  required  for  an  exe- 
cution against  wages,  §  1391 ;  Reibstein  v.  Stem,  140  App.  Div.  519,  125  N  Y 
S.  508  (1910)  ;  Neu  v.  Fox,  151  App.  Div.  17,  135  N.  Y.  S.  208  (1912). 

The  plaintiff  alone,  or  his  attorney,  has  a  right  to  sue  out  and  control 
the  execution    Osgood  &  Co.  v.  Broujn,  Freem.   Ch.    (Miss.)    392    (1839); 

647 


64S  EXECUTION 

TRUKTT  AND  GILL  v.  LEGG 
Court  or  ArvEAi.s  of  IMarylanu,  1S70 

32  Md.  147 

Appeal  from  the  Circuit  Court  for  Anne  Arundel  County.  This 
was  an  action  of  assumpsit  brou.cjht  by  the  appellants  against  the 
appellee.  On  the  24th  of  April,  1S67,  during  tlie  April  term  of  the 
court  below,  a  verdict  was  rendered  for  the  plaintiffs,  but  no  judg- 
ment, absolute  or  nisi,  was  rendered  or  entered  thereon  against  the 
defendant.  On  the  twenty-sixth  day  of  April,  1867,  the  defendant 
filed  a  motion,  and  reasons  for  a  new  trial,  and  no  day  appears  to 
have  been  fixed  for  its  hearing,  nor  rule  upon  the  plaintiffs  to  show 
cause  against  it,  at  any  prescribed  time.  The  case  thus  standing, 
and  several  terms  having  intervened,  on  the  loth  of  March,  1868, 
a  writ  of  execution  was  issued  by  order  of  the  plaintiffs.  On  motion 
of  'lie  defendant  the  court  below  ordered  the  execution  quashed  and 
plaintiff's  excepted.^ 

Stewart,  J. :  After  the  verdict,  the  plaintiffs  who  had  pre- 
vailed were  entitled  at  once  to  have  judgment  nisi  causa,  and  if 
they  moved  to  that  effect  the  judgment  would  have  become  final 
after  four  days,  unless  the  defendant  moved  for  a  new  trial,  or  in 
arrest  of  judgment,  within  that  time,  which  would  suspend  the 
iudgment  until  that  motion  was  disposed  of.*  But  as  the  plaintiffs 
made  no  motion  to  that  eft'ect,  and  no  judgment  was  in  fact  entered, 
the  verdict  still  continued  as  such,  and  the  expiration  of  the  term 
could  not  give  to  it  the  force  and  eft'ect  of  a  judgment.  Non  constat, 
in  tlie  absence  of  such  motion  on  the  part  of  the  plaintiffs  they 
desired  judgment  to  be  entered  on  the  verdict,  as  they  might  also 
move  for  a  new  trial,  or  other  action,  upon  the  verdict.  The  judg- 
ment rendered  on  the  verdict  is  the  conclusion  of  the  law  upon  the 
facts  found  by  the  jury,  and  is  the  act  of  the  court,  and  the  clerk 
in  entering  it,  records  it  as  the  judgment  of  the  court,  and  has  no 
authority  to  enter  it  without  the  sanction  of  the  court.  After  the 
iudgment  becomes  final,  and  not  before,  execution  may  be  issued 

Ex  parte  Hampton,  2  Greene  (Iowa)  137  (1849)  ;  Watt  v.  Alvord,  25  Ind.  533 
(1865)  ;  Remington  Paper  Co.  v.  O' Dougherty,  81  N.  Y.  474  (1880)  ;  Wills  v. 
Chandler,  2  Fed.  273,  I  McCrary  276  (1880);  State  v.  Pilsbitry,  35  La.  Ann. 
408  (1883)  ;  Cortes  v.  Superior  Court,  86  Cal.  274,  24  Pac.  ion,  21  Am.  St.  37 
(1890)  ;  Galle  v.  Tode,  148  N.  Y.  270,  42  N.  E.  673  (1896).  But  an  unauthor- 
ized execution  may  be  ratified  and  then  the  irregularity  will  be  deemed  to 
have  been  waived.  Clarkson  v.  White,  4  J.  J.  Marsh  (Ky.)  530,  20  Am.  Dec. 
229  C1830)  ;  Lerch  v.  Gallup,  67  Cal.  595,  8  Pac.  322  (1885);  Johnson  v. 
Murray,  112  Ind.  154,  13  N.  E.  273,  2  Am.  St._  Rep.  174  (1887). 

^The  statement  of  facts  is  from  the  opinion  of  the  court,  part  of  which 
is  omitted. 

*At  common  law,  judgment  is  suspended  pending  a  motion  for  new  trial 
and  an  execution  can  not  be  issued  until  the  motion  is  disposed  of.  2  Tidd's 
Practice  C9th  ed.)  903,  930;  Barre  v.  Affleck,  2  Yeates  (Pa.)  274  (1708)  ; 
Danielson  v.  Northivestern  Fuel  Co.,  55  l^YdT 49  (i«93),  but  in  many  of  the 
states  by  .statute  or  rule,  execution  will  not  await  the  disposition  of  a  motion 
for  new  trial  unless  a  stay  is  ordered.  Church  v.  Goodin,  22  Kans.  527  (1879)  ; 
Ex  parte  Craig,  130  Mo.  590,  32  S.  W.  1121  (1895)  ;  Erie  R.  Co.  v.  Ackerson, 
3.^N.  J.  L.  33  (1868). 


TRUETT  V.   LEGG  649 

against  the  defendant,  but  in  order  to  charge  him  in  execution,  or 
bind  his  property,  or  proceed  against  him  by  action  of  debt,  or 
have  scire  facias  on  the  judgment,  it  is  necessary  that  the  judgment 
should  be  entered  of  record.  2  Tidd's  Practice,  964,  975.  The 
record  in  this  case  shows  no  such  judgment,  and  therefore  the 
execution  was  improvidently  issued,  and  was  properly  quashed  by 
the  court. ^ 

Judgment  affirmed. 

^To  support  an  execution  there  must  be  a  valid  and  subsisting  judgment 
or  decree.  Jones  v.  Pope,  i  Saund.  2>1  (1666)  ;  Stampe  v.  Kinsey,  2  Show.  494 
(1686)  ;  Parker  v.  Frambes,  2  N.  J.  L.  156  (1807)  ;  Lofton  v.  Champion,  2 
N.  J.  L.  157  (1807)  ;  Albee  v.  Ward,  8  Mass.  79  (1811)  ;  Cutler  v.  Wadsworth, 
7  Conn.  6  (1828)  ;Faw  Ness  v.  Cantine  &  Radcliff,  4  Paige  (N.  Y.)  55 
(1833)  ;  Dinsmore^  v.  Bigpert,  Q  Pa.  St.  13^  (1848)  ;  Dawson  v.  Wells,  3  Ind. 
398  (1852);  Keeling  v.  Heard,  3  Head  (Tenn.)  592;  Criszvell  v.  Ragsdale, 
18  Tex.  443  (1857)  ;  Lincoln  v.  Cross,  11  Wis.  91  (i860)  ;  Johnson  v.  Baker, 
38  III.  98,  87  Am.  Dec.  293  (1865)  ;  Chase  v.  Dana,  44  111.  262  (1867)  ;  Fithian 
v.  Monks,  43  Mo.  502  (1869);  Davidson  v.  Seegar,  15  Fla.  671  (1876); 
Darrow  v.  Scullin,  19  Kans.  57  (1877)  ;  Strother  v.  Richardson,  30  La.  Ann. 
1269  (1878)  ;  Ling  v.  King,  91  111.  571  (1879)  ;  Jenness  v.  Circuit  Judge  for 
Lapeer  County,  42  Mich.  468,  4  N.  W.  220  (1880)  ;  Balm  v.  Nunn,  63 
Iowa  641,  19  N.  W.  810  (1884)  ;  Ninde  v.  Clark,  62  Mich.  124,  28  N.  W. 
765,  4  Am.  St.  823  (1886).  The  judgment  also  must  be  final.  Mather  v. 
Chapman,  6  Conn.  54  (1825)  ;  Daniel  v.  Cooper,  2  Houst.  (Del.)  506  (1862)  ; 
Walden  v.  Clark,  50  Vt.  383  (1877)  ;  In  re  Scdgeley  Ave.,  88  Pa.  St.  509 
(1879) ;  Devlin  v.  Hinman,  40  App.  Div.  loi,  57  N.  Y.  S.  663,  29  Civ.  Proc.  127 
(1899).  Ordinaril}',  the  party  who  has  obtained  judgment  is  immediately 
entitled  to  execution,  Smith  v.  Smith,  L.  R.  9  Exch.  121  (1874)  ;  Kavlor  v. 
Hollozmv.  ■;  Phila.  (Pa.)  1^30  (1864)  ;  Szvectser  v.  Fox,  43  Utah  40,T34P'ac. 
599,  47  L.  R.  A.  (N.  S.)  14S  (1911)  ;  but  a  judgment  subject  to  conditions 
can  be  enforced  only  in  accordance  with  their  terms.  Veal  v.  Warner,  i  Mod. 
20  (1669)  ;  Shoemaker  v.  Shirtliffe,  i  Dall.  (U.  S.)  133,  i  L.  ed.  69  (1785)  ; 
Otwellv.  Messick,4  Houst.  (Del.)  542  (1873).  And  where  a  statute  provides 
that  a  certain  time  shall  elapse  after  judgment  before  execution,  an  execution 
issued  sooner  is  erroneous.  Bacon  v.  Cropsey,  7  N.  Y.  195  (1852)  ;  Wilkin- 
son's  Appeal.  6^  Pa.  St.  180  (1870)  ;  Jones  v.  Carnahan,  63  Ind.  229  (I878)", 
and  by  some  authorities  void,  Briggs  v.  Wardwell,  10  Mass.  356  (1813); 
Penniman  v.  Cole,  49  Mass.  496  (1844)  ;  Washington  Nat.  Bank  v.  Williams, 
188  Mass.  103,  74  N.  E.  470  (1905).  At  common  law,  execution  m.ight  issue 
as  soon  as  judgment  was  signed  and  before  its  entry  of  record,  provided  there 
Avas  no  writ  of  error  depending  or  agreement  to  the  contrary.  Tidd's  Prac- 
tice (9th  ed.)  994;  Hastings  v.  Cunningham,  39  Cal.  137  (1870)  ;  Willson  v. 
Bin  ford,  54  Ind.  569  (1876)  ;  Los  Angeles  County  Bank  v.  Raynor,  61  Cal.  145 
(1882)  ;  Drake  v.  Harrison,  69  Wis.  99,  33  N.  W.  81,  2  Am.  St.  717  (1887)  ; 
Fontaine  v.  Hudson,  93  Mo.  62,  5  S.  W.  692,  3  Am.  St.  515  (1887),  otherwise 
justice's  judgments,  Huffman  v.  Sisk,  62  Mo.  App.  398  (1895)  ;  Weigley  v. 
Matson,  125  111.  64,  16  N.  E.  881,  8  Am.  St.  335  (1888),  otherwise  out  of 
term  time.  Knight  v.  Martin,  155  111.  486,  40  N.  E.  358  (1895);  Stevens  v. 
Manson,  87  Maine  436,  32  Atl.  1002  (1895)  ;  Lowenstein  v.  Caruth,  59  Ark. 
588,  28  S.  W.  421  (1894)  ;  Fisher  v.  Jones,  114  Ga.  648,  40  S.  E.  700  (1901). 
But  by  statutes  in  some  states  an  enrollment  or  docketing  of  the  judgment  is 
a  prerequisite  to  an  execution.  Barrie  v.  Dana,  20  Johns.  (N.  Y.)  307  (1822)  ; 
Marvin  v.  Herrick,  5  Wend.  (N.  Y.)  109  (1830)  ;  Smith  v.  Trenton  Delaware 
Falls  Co.,  20  N.  J.  L.  116  (1843)  ;  Blashfield  w.  Smith,  27  Hun  (N.  Y.)  114 
(1822)  ;  Balm  v.  Nunn,  63  Iowa  641,  19  N.  W.  810  (1884)  ;  Mason  &  Risch  Vo- 
calion  Co.  v.  Killough  Mu.ur  Co.,  45  S.  Car.  ii,  22  S.  E.  755  (1895)  ;  Dewey  v. 
Dewey,  151  Mich.  586,  115  N.  W.  735  (1908)  ;  Belfer  v.  Ludlozv,^6g  Misc.  486, 
126  N.  Y.  S.  130  (1910).  But  the  irregularity  may  be  cured  by  nunc  pro  tunc 
order.  Graham  v.  Lvnn,  4  B.  A'Ton.  (Ky.)  17,  39  Am.  Dec.  493  (1843); 
Doughty  v.  Meek,  lo.s  Iowa  16,  74  N.  W.  744,  67  Am.  St.  282  (1808).  As  to 
what  is  sufficient  docketing  see  Appleby  v.  Barry,  2  Rob.  (N.  Y.)  689  (1864). 


650 


EXECUTION 


FARMF.RS'  AND  MFXIIANICS'  NAT.  BANK  v.  CRANE 

Supreme  Court  or  New  York,  Special  Term,  1873 

IS  Ahh.  Pr.  {N.  S.)   (N.  Y.)  434 

The  plaintiffs,  the  Farmers'  and  Mechanics'  National  Bank  of 
Philailelphia,  sued  Walworth  D.  Crane  and  Joseph  C.  Danckelman, 
copartners,  to  recover  the  amount  of  an  overdraft ;  and  in  the  com- 
plaint alleged  fraud.  Judgment  was  obtained  against  both  defend- 
ants. Separate  executions  were  issued  against  the  person  of  each 
defendant.  The  plaintiffs  neglected  to  charge  the  defendant,  Danc- 
kelman, in  execution,  and  he  was  discharged  by  an  order  of  super- 
sedeas. The  defendant,  Crane,  now  moved  to  have  the  execution 
against  him  set  aside. 

Bushnell  &  Albright,  attorneys  for  defendant  Crane,  and  Samuel 
Jones,  of  counsel,  cited  6  T.  R.  525;  Gra.  Pr.  357;  2  Stra.  1218; 
Gra.  Pr.  411;  5  Duer  682. 

Sandford,  A\'oodruff  &  Robinson,  attorneys  for  plamtiffs,  and 
Edmund  R.  Robinson,  of  counsel,  cited  Fake  v.  Edgerton,  5  Duer 
681,  and  asked  to  be  allowed  to  amend  execution  by  indorsement 
directing  the  sheriff  to  apprehend  one  defendant  only. 

Fanciier,  J.:  It  is  a  well  settled  principle  of  practice  that  an 
execution,  being  founded  on  the  judgment,  must  in  all  respects  fol- 
low it,  and  be  warranted  by  it.  It  has  been  held  that  it  must  be  in 
the  name  of  all  the  plaintiffs  against  all  the  defendants  (6  T.  R.  525 ; 
Gra.  Pr.  357;  2  Stra.  1218),  and  that  it  must  strictly  pursue  tlie 
judgment  (Gra.  Pr.  411).® 

*The  execution  must  accord  with  the  judgment.  Breidenthal  v.  McKenna, 
14  Pa  St.  160  (1850)  ;  Kncib  v.  Graves,  72  Pa.  St^  104  (1872)  ]lVinsJowv. 
O'Prv  56  Ga.  138  (i876)T3'"a^'^^3' v.'Har^rafcr,  30  Gratt.  (Va.)  487  (1878); 
Van  Cleave  v.  Biicher,  78  Cal.  600,  21  Pac.  954  (1889)  ;  Brozvn  v.  Duncan  132 
111.  413,  23  N.  E.  1 126,  22  Am.  St.  545  (1S90)  ;  Moloney  v.  Real  Estate  B.  &  L. 
Assn  57  Mo.  App.  384  (1894);  Merrifield  v.  Western  Cottage  Piano  & 
Organ  Co.,  238  111.  526,  87  N.  E.  379  (1909)  ;  Schmitt  v.  Weber,  239  111.  377, 
88  N.  E.  268  (1909)  ;  Mallory  v.  Hartman,  86  Conn.  615,  86  Atl.  567  (1913)  ; 
Jordan  Bros.  v.  Gordon,  8  Ala.  App.  479.  62  So.  1023  (1913)-  In  Corhin  v. 
Pcarce,  81  111.  461  (1876),  it  is  said  by  the  court:  "A  variance  between  a 
judgment  and  an  execution  might  be  so  marked  that,  in  the  absence  of  other 
proof,  it  would  properly  be  inferred  that  the  judgment  in  question  was  not 
the  judgment  mentioned  in  the  writ,  but  such  inference  may  be  rebutted  by 
proof,  and  if  it  appears  that,  in  fact,  the  judgment  in  question  was  the  judg- 
ment 'upon  which  the  writ  was  issued,  in  such  case  the  variance,  though  an 
irregularity,  does  not  render  the  writ  void."  And  see  Chesehro  v.  Barme,  163 
Mass.  79,  39  N.  E.  1033  (1894).  Thus,  the  execution  should  follow  the  judg- 
ment in  the  statement  of  the  amount  due,  McSherry  V.  Queen,  2  Cranch  (C. 
C  )  406,  Fed.  Cas.  No.  8926,  (1823)  ;  Tipton  v.  Grubbs,  2  B.  Mon.  (Ky.)  83 
(1841)  ;  Monaghan  v.  Monaqhan,  25  Ohio  St.  325  (1874)  ;  J  affray  v.  Sauss- 
man,  52  Hun  561,  5  N.  Y.  S.  629  (1889),  but  a  slight  discrepancy  will  not 
vitiate  the  execution.  Becker  v.  Quigg,  54  111.  39°  (1870)  ;  Williams  v.  Brown, 
28  Iowa  247  (1869)  ;  Bruere  v.  Britton,  20  N.  J.  L.  268  (1844).  Contra:  Wilson 
V.  Fleming,  16  Vt.  649,  42  Am.  Dec.  531  (1844) ;  Hightower  v.  Handlin,  27  Ark. 
20  (1871). 


farmers'    &    mechanics'    NAT.    BANK   V.    CRANE  65I 

The  case  cited  from  term  reports  is  authority  for  holding  that 
if  a  separate  execution  against  the  body  of  the  defendant  is  issued 
upon  a  joint  judgment  against  two  defendants,  the  execution  will 
be  set  aside,  and  the  defendant  arrested  under  it  will  be  discharged. 

If  the  plaintiffs  wish  to  exonerate  one  of  several  defendants 
from  arrest  on  an  execution,  they  can  not  do  so  by  an  irregular  exe- 
cution, but  must  indorse  upon  it  a  direction  to  the  sheriff  (5  Duer 
682). 

As  to  the  amendment  suggested,  I  do  not  think  it  can  properly 
be  made  on  this  motion.  If  the  plaintiffs  desire  to  amend,  they 
should  move  for  that  purpose,  on  a  notice  to  the  defendants,  who 
perhaps  may  wish  to  be  heard  on  the  effect  of  the  former  arrest  of 
the  defendants,  the  discharge  of  one  of  them,  and  the  subsequent 
arrest  of  the  other  on  a  several  execution. 

The  motion  should  be  granted.'^ 


'Accord:  Whitman  v.  James,  10  Daly  (N.  Y.)  490  (1882),  affirmed  89 
N.  Y.  635.  Where  a  judgment  is  recovered  against  a  number  of  defendants 
it  is  irregular  to  issue  execution  against  less  than  all.  Anonymous,  Goodb. 
181  (1610)  ;  Panton  v.  Hall,  2  Salk.  598  (1689)  ;  Morse  v.  Dewey,  3  N.  H.  535 
(1826);  State  V.  Stout,  11  N.  J.  L.  362  (1830);  Boyken  v.  State,  3  Yerg. 
(Tenn.)  426  (1832)  ;  Saunders  v.  Gallagher,  2  Humph.  (Tenn.)  445  (1841)  ; 
Gihhs  V.  Atkinson,^/^  Pa.  T..  l^JVh\h)  139  (1843)  ;  Conn  V.  Pender,  1  Smedes 
&  M.  (Aliss.)  386  (1843)  ;  SJiaffexj^Watkins^zyi3lts  &  S.  (Pa.)  219  (1844)  ; 
Wilson  &  Wheeler  v.  Nance  &  Collins,  11  HumpH."XTennr)  189  (1850)  ; 
Saul  &  Hensinger  V.  Geist,  i  Wpodw.  (Pa.)  306  (1865)  ;  Flanagan  v.  Tinen, 
B3  Barb.  ( NTyIJ  sSTrSTTTowrFracTTso  (1867 )  ;  Linn  v.  Hamilton,  34  N.  J. 
L.  305  (1870)  ;  Dandistel  v.  Kronenherger,  39  Ind.  405  (1872)  ;  Elson  v. 
O'Dowd,  40  Ind.  300  (1872)  ;  Brinton  v.  Gerry,  7  111.  App.  238  (1880)  ;  Zelle 
V.  Bohh,  14  Mo.  App.  267  (1883) ;  Burdick  v.  Burdick,  16  R.  I.  495,  17  Atl.  859 
(1889)  ;  In  re  First  Nat.  Bank,  49  Fed.  120  (1891)  ;  Merrifield  v.  Western 
Cottage  Piano  Co.,  238  111.  526,  87  N.  E.  379,  149  111.  App.  i  (1909).  But  see, 
where  separate  judgments  or  orders  are  entered  in  one  proceeding.  Kempt  on 
V.  Cook,  4  Pick.  (Mass.)  21,  305  (1826)  ;  Sharpe  v.  Baker,  51  Ind.  App.  547, 
99  N.  E.  44,  96  N.  E.  627  (1912)  ;  Hyder  v.  Butler,  103  Tenn.  289,  52  S.  W. 
876  (1899)  ;  McMamts  v.  Price,  246  Mo.  438,  152  S.  W.  3  (1912).  Compare 
Land  Credit  Co.  v.  Fermoy,  L.  R.  5  Ch.  App.  322  (1870).  The  rule,  it  is  said, 
is  technical,  and  the  court  from  which  the  process  issues  will  take  care  that 
it  is  not  used  to  work  injustice.    Mortland^  v.  Himes^^JP^  SL.,265   (1848)  ; 


Sheets  y.  JFyw^oo^^4^^^^SL_I98_.(i873)  -yuffield  vTCooper,  87  Fa.  St.  443 
(1878) r  Aiidgenerally,  the  plaintiff,  under  his  powerTo  control  the  writ,  may 
direct  the  sheriff  to  make  the  amount  of  the  debt  out  of  the  property  of  one, 
or  any  or  all  of  the  defendants.  Godfrey  v.  Gibbons,  22  Wend.  (N.  Y.)  569 
(1840)  ;  Root  V.  Wagner,  30  N.  Y.  9,  86  Am.  Dec.  348  (1864)  ;  Crossitt  v. 
Wiles,  13  N.  Y.  Civ.  Pro.  327  (1888);  Flanders  v.  Batten,  50  Hun  543,  3 
N.  Y.  S.  728,  20  N.  Y.  St.  671  (1889). 

One  execution  can  not  issue  on  two  separate  and  distinct  judgments 
Doe  V.  Pue,  4  Blackf.  (Ind.)  263,  29  Am.  Dec.  368  (1836)  ;  Merchie  v.  Gaines, 
5  B.  Mon.  (Ky.)  126  (i8zt4)  ;  Bain  &  Wyatt  v.  Chrisman  &  Porter,  27  Mo. 
203  (1858)  ;  Lewis  v.  Dennis,  54  Tex.  487  (1881)  ;  B.  &  O.  R.  Co.  v.  Vander- 
warker,  19  W.  Va.  265  (1881)  ;  Bigham  v.  Dover,  86  Ark.  2^2>  no  S.  W.  217 
(1908). 

Upon  a  judgment  in  favor  of  several,  an  execution  issued  in  favor  of 
one  of  the  plaintiffs  is  irregular.  Moody  v.  R.  Hoe,  22  Fla.  314  (1886); 
Cleveland  v.  Simpson,  yj  Tex.  96,  13  S.  W.  851  (1890),  but  see  Railsback  v. 
Love  joy,  116  111.  442,  6  N.  E.  504  (1886);  Couch  v.  Atkinson,  32  Ala.  633 
(1858). 


652  EXECUTION 

1':arl  z:  brown 

Court  of  King's  Bench,  1750 

I  inis.  K.  B.  302 

The  plaintlfT  died  after  the  verdict  and  before  judgment  was 
entered  thereupon.  Afterwards  judgment  was  entered  and  an  exe- 
cution taken  out,  without  any  scire  facias  sued  out  at  the  suit  of  tlie 
]>laintiff's  representative.  y\nd  now  it  was  moved  to  set  aside  the 
execution  of  fieri  facias,  and  it  was  held  that  although  the  judgment 
v>as  regularly  entered  by  the  17  Car.  2,  c  8^  yet  the  fieri  facias 
issued  irregularly,  for  there  ought  to  have  been  a  scire  facias;  so 
the  fieri  facias  was  set  aside,  and  the  money  levied  thereupon  or- 
dered to  be  restored  to  the  defendant,  per  totam  curiam.^ 


*"The  death  of  either  party  between  the  verdict  and  judgment,  shall 
not  hereafter  be  alleged  for  error,  so  as  such  judgment  be  entered  within 
two  terms  after  such  verdict."  Act  of  17  Charles  II.  ch.  8  (1666).  MunmJL 
Coot£Z\_6_Serg,  &  R.  126  ( 1820)  ;  Walter  v.  ErdmaUj^  4jPa.  Super.  Ct.  348 

'Johnson  v.  Parmcly,  17  Johns.  (N.  Y.)  271  (1820);  Gansevoort  v. 
GiUUand,  i  Cow.  (N.  Y.)  218  (1823);  Harzvood  v.  Murphy,  13  N.  J.  L.  193 
(1832)  ;  Hiicy  V.  Redden,  3  Dana  (Ky.)  488  (1835)  ;  May  v.  State  Bank  of 
North  Carolina,  2  Rob.  (Va.)  56,  40  Am.  Dec.  726  (1843),  at  p.  69;  Warwick 

V. ,  20  N.  J.  L.  116  (1843)  ;  Moore  &  Cocke  v.  Bell,  13  Ala.  459  (1848)  ; 

Bellinger  v.  Ford,  14  Barb.  (N.  Y.)  230  (1852)  ;  Trail  v.  Snouffer,  6  Md.  308 
(1854)  ;  Hcwgly  v.  Johns,  3  Baxt.  (f  enn.)  85  (1873)  ;  Brown  v.  Parker,  15 
111.  307  (1853)  ;  ^I organ  v.  Taylor,  38  N.  J.  L.  317  (1876),  prior  to  the  practice 
act  of  1874;  Welch  v.  St.  Louis,  12  Mo.  516  (1882)  ;  Tucker  v.  Carr,  20  R.  I. 
477,  40  Atl.  I,  78  Am.  St.  893  (1898).  Quaere  whether  an  execution  so  issued 
is  void.  Seeley  v.  Johnson,  61  Kans.  337,  59  Pac.  631,  78  Am.  St.  314  (1900)  ; 
Meyer  v.  Mintonye,  106  111.  414  (1883)  ;  Bellinger  v.  Ford,  21  Barb.  (N.  Y.) 
311  (1856),  or  merely  voidable,  i2fl5LV,_57tar/i«_4_.WiiarL_CPa-)  339.  34  Am. 
Dec.  509  (1830')  ;  Darlington  v.  j>gafeniQ?UJ3  AVatts^&^S,.  lEa.)  182  (1845); 
Hughes  v.  Wilkinson,  37  Miss.  482  (1859)  ;  Jenness  v.  Circuit  Judge,  42  Mich. 
469,  4  N.  \V.  220  (1880).  In  many  of  the  states  the  common  law  rule  has  been 
changed  and  the  personal  representative  may  have  an  execution  without  a 
writ  of  revival.  For  example,  see  N.  Y.  Code  Civ.  Pro.,  §  1376;  Ireland  v. 
Litchfield,  22  How.  Pr.  178,  21  N.  Y.  Super.  Ct.  634  (1861)  ;  Guilerman  v. 
Coufant,  128  App.  Div.  453,  112  N.  Y.  S.  900  (1908)  ;  Pennsylvania  Act  of 
Peb^  2d.  1834.  P.  L.  70,  §  26 ;  Gcmmill  v.Btitl_cr,j^  Pa.^St.  232^1846)!  Mojgcin 
V.  Taylor,  38  i\'.  J.  L.  3J7  (1876)  ;  Mavi 


•Jity  v.  EastriJge,67  Hid.  211  (1879)  ; 
Hatcher  v.  Lord,  lis  Ga.  619  (1902),  41  S.  E.  1007,  61  L.  R.  A.  353  and  note; 
Kinkade  v.  Gibson,  209  III.  246,  70  N.  E.  683  (1904).  In  England  where  there 
is  a  change  of  parties  by  death  or  otherwise,  the  party  alleging  himself 
entitled  to  execution  may  apply  to  the  court  for  leave  to  issue  execution,  and 
the  court  may  make  an  order  to  that  effect  upon  such  terms  as  shall  be  just. 
Rules  of  Supreme  Court,  Order  XLII,  rule  17;  Mercer  v.  Lazvrence,  26  W. 
R.  506  (1878)  ;  Ex  parte  Woodall,  L.  R.  13  Q.  B.  Div.  479  (1884). 


COOPER   V.    MAY  653 

COOPER  V  MAY 

Superior  Court  of  Delaware,  1832 

I  Har.  {Del.)  18 

Certiorari.  Judgment  before  a  justice  of  the  peace  in  an  action  at 
the  suit  of  Thomas  May  against  Nathaniel  D.  Masten.  An  execution 
issued  in  1826,  on  which  a  sale  was  made,  but  no  part  applied  to 
that  execution.  Masten  died  in  1826,  and  his  widow  administered, 
and  af tervv'ards  intermarried  with  Cooper.  An  alias  fi.  fa.  was  issued 
in  1829. 

This  was  the  error  assigned,  that  the  alias  fi.  fa.  issued  several 
years  after  the  defendant's  death,  and  without  any  previous  sci.  fa.^" 

Clayton,  C.  J. :  If  judgment  is  recovered,  and  the  defendant 
dies  in  one  month  afterwards,  if  a  term  is  suffered  to  elapse,  so  that 
the  execution  must  be  tested  after  his  deatli,  such  execution  would 
be  irregular ;  for  the  rule  is,  that  when  a  new  person,  who  was  not 
a  party  to  a  judgment,  derives  benefit  by,  or  becomes  chargeable  to, 
the  execution,  there  must  be  a  sci.  fa.  to  make  him  a  party.  2 
Saund.  6,  n.  i ;  i  Ld.  Raym.  245 ;  i  Salk.  319-20;  2  Ld.  Raym.  768; 
2  Inst.  471.  So  when  the  defendant  dies  in  term  time  and  execution 
is  taken  out  immediately  after  the  term,  a  day  posterior  to  the  death 
of  defendant,  a  scire  facias  is  necessary  to  revive  the  judgment 
against  the  administrator.  6  T.  R,  368.  Lord  Kenyon  in  this  case 
says,  "great  injustice  may  be  done  to  creditors  if  v/e  permit  the  exe- 
cution to  stand."  The  plaintiff  should  have  sued  out  a  scire  facias 
to  revive  the  judgment  against  the  defendant's  executor.  The  mo- 
ment a  party  is  dead,  the  rights  of  his  creditors  are  fixed.  An  execu- 
tion once  begun  should  proceed.  I  understand  by  this  that  where 
chattels  or  other  property  are  seized  in  execution,  you  may  proceed 
to  complete  the  execution  at  any  time  after,  and  the  death  of  neither 
plaintiff  nor  defendant  will  stop  the  execution.^^  But  I  have  met  with 

"A  part  onlj'-  of  the  opinion  is  printed. 

"Accord:  Harivood  v.  Phillips,  O.  Bridgman  464  (1663)  ;  Adams  v.  Con- 
nelly, 118  111.  App.  441  (1905)  ;  Farrer  v.  Brooks,  i  Mod.  188  (1674)  ;  Fox  v. 
Lamar,  2  Brev.  (S.  Car.)  417  (1810)  ;  Massie  v.  Long,  2  Ohio  287,  15  Am.  Dec. 
547  (1826)  ;  Doe  V.  Heath,  7  Blackf.  (Ind.)  154  (1844)  ;  Wood  v.  Morehouse, 
45  N.  Y.  368  (1871)  ;  Holman  v.  Holman,  66  Barb.  (N.  Y.)  215  (1872); 
Rosenaarten  y.  Deemer.  i.  W-  N.  Cas.  Pa.  63  (1873);  Davis  v.  Moore,  103 
III.  445  (1882)  ;  Coffin  v.  Freeman,  84  Maine  535,  24  Atl.  986  (1892)  ;  ConneU. 
v.^Q'Nell,  I.S4  Pa.  St.  582,  26  Atl.  607  (1893)  ;  Knelly  v.  Bachert.  13  Pa  D.  R. 
135  (1903)-  Contra:  Davis  v.  Oswalt,  18  Ark  414,  68  Am.  Dec.  182  (1857)  ; 
Chandler  v.  Burdett,  20  Tex.  ,42  (1857)  ;  McMiller  v.  Butler,  20  Tex.  402 
(1857)  ;  Burge  v.  Brown,  5  Bush.  (Ky.)  535,  96  Am.  Dec.  369  (1869). 

In  Massie' s  Heirs'  Lessee  v.  Long,  2  (jhio  287,  15  Am.  Dec.  547,  it  is  said : 
"Itis  well  settled  that  if  the  defendant  die,  after  execution  is  sued  out  and 
levied,  that  the  execution  proceeds,  as  if  the  death  had  not  taken  place.  The 
reason  generally  given  for  this  is,  that  execution  is  an  entire  thing,  and  having 
once  commenced,  can  not  be  stopped.  But  there  is  undoubtedly  a  much  more 
satisfactory  reason  to  warrant  the  proceeding,  at  least  in  the  case  of  a  levy 


654  EXECUTION 

no  case  \vhcrc  von  can  take  out  execution  which  must  be  tested  after 
tlie  death  of  the  phiintitT  or  defendant.    A  scire  facias  is  necessary 
in  every  such  case.  The  ahas  li.  fa.  is  irregular,  and  the  proceedings 
must  l»e  reversed. ^- 
Judgnient  reversed. 


PAYNE  V.  PAYNE'S  EXR. 

Court  of  Appeals  of  Kentucky,  1848 

8B.  Mon.  {Ky.)  391" 

Simpson,  J.:  This  was  a  motion  to  quash  an  execution,  made 
by  the  defendant  in  the  execution. 

There  were  two  plaintiffs  in  the  judgment  at  law,  one  of  whom 
had  died  before  the  last  execution  issued.  His  death  was  suggested 
in  the  execution,  and  this  fact  was  also  relied  upon  as  a  ground  for 
quashing  it.  But  it  is  fully  settled  that  where  there  are  two  or  more 
plaintiffs  or  defendants  in  a  personal  action,  and  one  or  more  of 

upon  chattels.  By  the  levy,  the  property  of  the  defendant  _in_  the  goods  is 
divested,  and  the  sheriff  acquires  a  special  property,  which  it  is  his  duty  to 
divest  himself  of  according:  to  the  exigent  of  the  writ." 

^"At  common  law  if  there  is  but  one  defendant  and  he  dies  after  judg- 
ment and  before  execution,  an  execution  can  not  issue  tested  after  his  death 
without  first  reviving  the  judgment  by  writ  of  scire  facias.  Where  a  statutory 
remedy  is  substituted  for  scire  facias  it  must  be  followed  strictly.  Fitzherbert 
Natura  Brevium  266;  Vincent  v.  Dale,  I  Dyer  76b  (1552). 

Jefferson  v.  Morton,  2  Saund.  6  (1670)  ;  Boyd  v.  Armstrong,  I  Yerg. 
(Tenn.)  40  (1821)  ;  Den  ex  dent.  Sharp  v.  Humphreys,  16  N.  J.  L.  25  (1837)  ; 
Cartney  V.  Reed,  5  Ohio  221  (1831)  ;  Heapy  v.  Parris,  6  T.  R.  368  (i795)  ; 
Stvmets  v.  Brooks,  10  Wend.  (N.  Y.)  207  (1S33)  ;  Bragner  v.  Langmead,  7  T. 
R.20  (1796)  ;  Jeii'eit  v.  Smith,  12  Mass.  309  (i8is)  ;  Henderson  v.  Candy,  ll 
Ala.  431  (1847)  ;  State  v.  Michaels,  8  Blackf.  (Ind.)  436  (1847)  ;  Hildreth  v. 
Thompson,  16  Mass.  191  (1819)  ;  Springer  v.  Brozvn.  o  Pa.  St^o=;  (1848) 
Mcanor  v.  Hamilton,  27  Pa.  St.  137  (1856)  ;  Trail  v.  Snouffer,  6  MHr3o8  ( 1854) 
'ZaflinV.  Herrington,  l6  111.  301  (i«55T;  J^Voodv^ohvell.  :^^  Pa.  St.  02  (i8=;q) 
Ransom  v.  Williams,  69  U.  S.  313,  17  L.  ed.  803  (1864)  ;  Smith  v.  Reed,  52  Cal. 
345  (1877)  ;  Welch  v.  Bat  tern,  47  Iowa  147  (1877)  ;  Sims  v.  Eslava,  74  Ala.  594 
(1883)  ;  Middleton  v.Mjddleton,  106  Pa.  St^252  (1884)  ;  In  re  Shephard,  L.  R. 
43  Ch.  DTTsTTTWr;  5;i// V.  L.ilbertTW^owS'sX?,  44  N.  W.  815  (1890)  ;  Bar- 
field  V.  Barfield,  113  N.  Car.  230,  18  S.  E.  505  (1S93)  ;  Rcddick  v.  Long,  124  Ala. 
260,2780.  402  (1899)  ;^//aj  y?.  Co.  V.  5"»h7A,  52  App.  Div.  109,  64  N.  Y.  S.  1044 
(1900),  see  N.  Y.  Code  Civ.  Pro.,  §§  1380-1 ;  Seely  v.  Johnson,  61  Kans.  337, 
59  Pac.  631,  78  Am.  St.  314  (1900)  ;  Watson  v.  Moore,  40  Ore.  204,  66  Pac. 
814  (1901)  ;  Vogt  V.  Daily,  70  Nebr.  812,  98  N.  W.  31  (1904)  ;  Dunbar  v. 
Kelly,  189  Mass.  390,  75  N.  E.  740  (1905)  ;  PerrcTv^ Lepper,  -226-£a.  St.  ^8, 
75  Atl.  722,  (1910)  ;  Rose  v.  Dunbar,  20  Idaho  i,  115  Pac.  920  (1911)  ;  Craig 
v.  Wagner,  88  Conn.  100,  89  Atl.  916  (1914)  ;  Prentiss  v.  Bozvden,  145  N.  Y. 
342,  40  N.  E.  13  (1895).  An  execution  in  violation  of  this  rule  is  generally 
held  void.  Holloway  v.  Johnson,  7  Ala.  660  (1845)  ;  per  ctir.  "of  no  more  ef- 
fect than  waste  paper";  Wallace  v.  Sainton,  66  N.  Y.  188  (1876)  ;  Cunning- 
ham V.  Burk,  45  Ark.  267  (1885)  ;  Sawyers  v.  Sawyers,  93  N.  Car.  321  (1885)  ; 
Prentiss  V.  Bowdcn,  145  N.  Y.  342  (1895).  Contra,  holding  the  proceedings 
voidable  merely,  Butler  v.  Hcynes,  3  N.  H.  2i  (1823);  Sbeer  v.  Samt>k^/i 
V^atts  (Pa  )  367  (1835);  Harrington  v.  O'Reilly,  17  Miss.  2l6  (1848); 
fledges  v.  ll'hite,  19  R.  I.  717  (1897). 

"Part  of  the  opinion  of  the  court  is  omitted. 


ERWIN   V.    DUNDAS  655 

them  die  after  judgment,  execution  may  be  had  for  or  against  the 
survivors,  without  a  scire  facias.    (2  Saunders  72,  note  by  WilHams, 
and  the  cases  cited.)    This  ground  was  properly  held  untenable  and 
the  motion  overruled." 
Judgment  affirmed. 


ERWIN  V.  DUNDAS 

Supreme  Court  of  the  United  States,  1846 

4  How.  (U.  S.)  s8 

Error  from  the  Circuit  Court  of  the  United  States  for  the  South- 
ern District  of  Alabama. 

Ejectment  by  Erwin,  the  plaintiff  In  error,  to  recover  a  lot  In 
the  city  of  Mobile,  known  as  Hitchcock's  cotton  press,  to  which 
he  claimed  title  as  purchaser  at  sheriff's  sale  on  an  alias  fi.  fa.  Issued 
July  19,  1840,  on  a  judgment  against  Henry  Hitchcock  and  Robert 
D.  James.  Henry  Hitchcock,  the  former  owner  of  real  estate, 
died  August  12,  1839,  having  devised  the  land  to  his  wife,  who  con- 
veyed to  Cowperthwaite  and  Cowperthwaite  to  Dundas  and  others, 
tlie  defendants.  Upon  the  trial  the  court  below  directed  a  verdict 
for  the  defendants  to  which  the  plaintiff  excepted. ^^ 

Nelson,  J. :  A  series  of  cases,  coming  down  from  the  earliest 
history  of  the  law  on  the  subject,  and  the  reason  assigned  In  support 
of  them,  necessarily  lead  to  the  result — and  Avhich  has  also  been 
confirmed  by  express  decision  in  all  courts  where  the  authority  of 
the  common  law  prevails — that  an  execution  Issued  and  bearing 
teste  after  the  death  of  the  defendant  Is  Irregular  and  void,  and 
can  not  be  enforced  either  against  the  real  or  personal  property  of 
the  defendant,  until  the  judgment  Is  revived  against  the  heirs  or 
devisees  In  the  one  case,  or  personal  representatives  In  the  other. 

In  the  case  before  us,  the  judgment  upon  which  the  execution 
was  Issued  and  the  lands  sold  had  been  rendered  against  two  defend- 
ants, one  of  whom  was  living  at  the  time,  but  the  lands  sold  be- 
longed to  the  estate  of  the  deceased.  And  it  Is  material  to  inquire, 
whether,  In  this  aspect  of  the  case,  a  different  rule  can  be  applied  to 
the  sale. 

At  common  law  a  judgment  or  recognizance  In  the  nature  of  a 
judgment  did  not  bind  the  lands  of  the  defendant,  nor  did  the  exe- 


"Accord :  Y.  B.  48  Edw.  Ill,  12  b ;  Withers  v.  Harris,  2  Ld.  Raym.  806, 
3  Salk.  319  (1702)  ;  Hamilton  v.  Lyman,  9  Mass.  14  (1812)  ;  Bodwoin  v. 
Jordan,  9  Mass.  160  (1812)  ;  Bcrryhill  v.  Wells,  J,  Binn^ XPa^)  56  (1812) 
semble;  Lane  v.  Bcltzhoovcr,  1  Taney  ( C. TT.)  no,  FedTCas.  No.  8047  (1840)  ; 
Howell  &  Howell  v.  Eldridge,  21  Wend..  (N.  Y.)  678  (1840)  ;  Ellison  v. 
Andrews,  12  Ired.  (N.  Car.)  188  (1851)  ;  Cushman  v.  Carpenter,  62  Mass.  388 
(1851)  ;  Dickinson  v.  Bowers,  7  Baxt.  (Tenn.)  307  (T874).  Contra:  Ballingcr 
V.  Redhead,  i  Kans.  App.  434,  40  Pac.  828  (1895)  ;  Jreiler  v.  Freiler.  i  Pa. 
Co.  Ct  263  (1885)  ;  Frohock  v.  ggf.yh'nc,  8  Watts  (Pa.)  T2f  (18^0)  partition. 
"  ^'^Hie  slatement  ot  facts  is  abridgecTlind  the  arguments  of  counsel  and 
part  of  the  opinion  of  the  court  omitted. 


656  F.XF.CUTION 

cutidn  disturb  the  possession,  as  it  went  only  against  the  goods  and 
chattels.  The  Statute  of  Wcstm.  II,  eh.  18  (13  Edvv.  I),  first  sub- 
jected the  lands  of  the  debtor  to  execution  on  a  judgment  recovered 
against  him,  and  gave  the  plaint! If  the  writ  of  elegit  by  virtue  of 
which  the  sheriff  seized  and  delivered  a  moiety  of  the  lands  until 
the  debt  was  levied  out  of  the  rents  and  profits.  Under  this  statute, 
a  nioiety  of  the  land  is  deemed  bound  from  the  rendition  of  the 
judgi-:ient.  2  Bac.  Abr.,  tit.  Execution,  685 ;  3  Bl.  Com.  418;  3  Coke 
iz^TJie  People  v.  Hoskins,  7  Wend.  (N.  Y.)  466. 

Before  the  statute,  a  judgment  was  considered  a  charge  only 
upon  tlie  personal  estate  of  the  defendant ;  since,  a  charge  upon  both 
the  real  and  personal  estate. 

Before  and  since  the  statute,  in  case  of  a  judgment  against  two 
defendants,  and  the  death  of  one,  the  charge  of  the  judgment  sur- 
vived against  tlie  personal  estate  of  the  survivor;  and  execution 
could  be  taken  out  against  him  within  the  year  wdthout  a  scire  facias, 
and  the  debt  levied.  2  Tidd  1120;  i  Salk.  320;  Bing.  on  Ex.  136; 
Norton  v.  Lady  Harvey,  2  Wms.  Saund.  50,  51,  n.  4,  and  72,  n.  3; 
16  ]\Iass.  193,  n.  2;  I  Cow.  (N.  Y.)  738. 

The  writ,  however,  must  be  in  form  against  both,  to  correspond 
with  the  record,  but  it  could  be  executed  against  the  goods  of  the 
survivor  only ;  or,  on  making  a  suggestion  of  the  death  upon  the  rec- 
ord, the  writ  could  be  against  the  survivor  alone.^^ 

And  if  the  judgment  against  both  defendants  is  founded  upon 
contract,  the  surviving  defendant  is  entitled  to  contribution  out  of 
the  estate  of  the  deceased  (Bing.  on  Ex.  137,  and  cases  cited)  ;  if 
upon  tort,  it  would  be  otherwise. 

But  since  the  statute,  if  the  plaintifif  seeks  to  enforce  the  judg- 
ment against  the  real  estate  of  the  defendants  in  the  case  put,  he 
must  revive  it  by  scire  facias  against  the  surviving  defendant,  and 
the  heirs,  devisees,  and  terre-tenants  of  the  deceased,  before  execu- 
tion can  regularly  issue.  For,  as  to  the  real  estate  of  the  defendants, 
the  charge  of  the  judgment  does  not  survive;  and  the  execution 
must  go  against  the  lands  of  both ;  and  as  it  can  not  be  regularly 
issued  against  the  deceased  codefendant,  nor  be  allowed  to  charge 
the  estate  in  the  hands  of  his  heirs,  devisees,  or  terre-tenants,  until 
they  have  notice,  and  an  opportunity  to  set  up  a  defense,  if  any, 
to  the  judgment,  a  scire  facias  is  indispensable  to  the  regularity  of 
the  execution.    2  Wms.  Saund.  51,  n.  4;  Bing.  on  Ex.  137,  and 

"Accord:  Johnston  v.  Lynch,  3  Bibb  (Ky.)  334  (1814)  ;  Woodcock  v. 
Bennett,  i  Cow.  (N.  Y.)  711,  13  Am.  Dec.  568  (1823)  ;  Calloway  v.  Enbank, 
4  T.  T.  Mar.  (Kv.)  280  O830)  ;  Carnahan  v.  Brown,  6  Blackf.  (Ind.)  93 
(1841")  ;  Davis  v.  'flclm,  3  Smedes  &  M.  (Miss.)  17  (1844)  ;  Reams  v.  McNail, 
9  Humph.  (Term.)  542  (1848)  ;  Thompson  v.  Bondnrant,  15  Ala.  346,  50  Am. 
Dec.  136  (1849)  ;  Cheatham  v.  Brien,  3  Head  (Term.)  553  (1859)  ;  Blanks  v. 
Rector.  24  Ark.  496,  88  Am.  Dec.  780  (1866)  ;  Sheetr:  v  lV\<nkoot>.  lA  Pa.  St. 
198  (1873),  cf.  Stoner  v.  Stroman.  9  Vv'aUs  &  ^!).  (W.)  S=,  (i84.S)  ;  Holt  v. 
Lynch,  18  W.  Va~s^7  (1881)  ;  Duquesne  A'at.  Bank  v.  Mills,  22  Fed.  611 
('1883  Pa.)  ;  Reed  v.  Garfield,  15  111.  App.  290  (1884)  ;  LoomisjLMass.  12  Ea. 
Super.  Ct.J3.^  C1899)  ;  Forbes  v.  Thompson,  2  Penn.  (Del.)  530,  47  Atl.  1015 
(1900)  r'STerri field  V.  Western  Cottage  Piano  &c.  Co.,  149  HI-  App.  I  (1909)- 


ERWIN   V.    DUNDAS  657 

cases  cited;  4  Mod.  316;  2  Coke  14a;  i  Ld.  Raym.  244,  i  Salk.  320, 
Carth.  404;  16  Mass.  193  n. ;  i  Cow.  (N.  Y.)  711. 

It  will  be  seen,  therefore,  upon  these  authorities,  that  the  same 
objections  exist,  both  in  principle  and  in  reason,  as  it  respects  the 
enforcement  of  a  judgment  against  two  by  a  sale  of  the  real  estate 
on  execution  after  the  death  of  one,  which  have  been  sliov/n  to 
exist  against  the  enforcement  of  a  judgment  against  a  single  de- 
fendant after  his  death.  For  as  tlie  charge  of  the  judgment  against 
the  land  does  not  survive,  but  continues  upon  the  lands  of  both 
after  the  death  of  one,  the  same  as  before,  and  can  not  be  enforced 
against  the  real  estate  of  the  survivor  alone,  as  in  the  case  of  the 
personalty,  and  the  execution  must  therefore  be  issued  against  both 
if  issued  at  all,  it  is  obvious  the  lands  of  the  deceased,  in  that  event, 
are  as  liable  to  be  sold  by  the  sheriff  as  the  lands  of  the  survivor. 
The  rights  of  the  heirs  and  devisees,  and  the  reasons  for  protecting 
them  by  the  scire  facias,  are  the  same  in  the  one  case  as  in  the 
other;  and  when  the  law  disables  the  plaintiff  from  suing  out  exe- 
cution against  the  real  estate  on  a  judgment  against  one  defendant 
after  his  death,  it  must  equally  disable  him  from  suing  it  out  on  a 
judgment  against  two,  after  the  death  of  one.  Otherwise,  in  both 
cases,  the  interest  of  new  parties,  upon  whom  the  estate  has  fallen, 
or  to  whom  it  may  have  passed,  is  liable  to  be  suddenly  and  with- 
out notice  divested  by  the  silent,  and  till  then  dormant,  power  of 
the  law;  parties,  too,  who  from  their  age  and  situation  in  life  will 
not  unfrequently  be  the  least  qualified  to  understand  and  protect 
these  interests,  being  the  children  of  the  deceased  defendant. 

Upon  the  whole,  without  pursuing  the  examination  further, 
we  are  satisfied,  that,  according  to  the  settled  principles  of  the  com- 
mon law,  and  which  are  founded  upon  the  most  cogent  and  satis- 
factory grounds,  the  execution  having  issued  and  bearing  teste  in 
this  case  after  the  death  of  one  of  the  defendants,  the  judgment 
was  irregular  and  void;  and  that  the  sale  and  conveyance  of  the 
real  estate  of  the  deceased  under  it  to  the  plaintiff  was  a  nullity.^^ 

Judgment  affirmed. 


^'Accord :  Bacon's  Abridgement,  Executions,  G.  \;  In  re  Herberts  Case, 
3  Coke  12  (1584)  ;  Smarte  v.  Edsun,  i  Lev.  30  (1673)  ;  Lampton  v.  Colling- 
vjood,  4  Mod.  314  (1694);  Pennoir  v.  Brace,  I  Salk.  319  (1696);  Reed  v. 
Garvin ^  J  Scrg.  &  R.  (Pa.)  354  (1821)  ;  CoTumornvcalUiJvr Ihejtse  of  Fellas  V. 
ersE. 


VMUJerslkc,  8  SergTgr  RTXya.)  452  0^^22)YW'oo3cock\.  Bennett,  i  Cow. 
(N.  Yyyii,  13  Am.  Decr5S8~(i823)  ;  Stiles  v.  Brock  &  Co.,  1  Pa.  St.  215 
(1845)  ;  Austin  v.  Reynolds,  13  Tex.  SAA~C^^^?yrT^enderson  v.  Vdnlwok,  24 
Tex.  358  (1859)  ;  Millard  v.  Gavitt,  i.S  Phila.  (Pa.)  279  (1881).  Contra,  as  to 
lands  of  the  survivor,  Martin  v.  BranclTBank  atT)ecatur,  15  Ala.  587,  50  Am. 
Dec.  147  (1849)  ;  Hardin  v.  McCanse,  53  Mo.  255  (1873)  ;  Reed  v.  Garfield,  15 
111.  App.  290  (1884)  ;  Christ  v.  Flannagc.n,  23  Colo.  140,  46  Pac.  683  (189&)  and 
see  Baskin  v.  Huntington,  130  N.  Y.  313,  29  N.  E.  310  (1S91).  Section  1383  of 
the  New  York  Code  of  Civil  Procedure  declares  that  the  provisions  for  ob- 
taining leave  to  issue  execution  where  a  judgment  debtor  has  died  "do  not 
affect  the  right  of  a  judgment  creditor  to  enforce  a  judgment,  against  the 
property  of  one  or  more  surviving  judgment  debtors,  as  if  all  the  judgment 
debtors  were  living.  In  that  case,  an  execution  must  be  issued  in  the  usual 
form;  but  the  attorney  for  the  judgment  creditor  must  endorse  thereupon,  a 
notice  to  the  sheriff,  reciting  the  death  of  the  deceased  judgment  debtor,  and 
requiring  the  sheriff  not  to  collect  the  execution  out  of  any  property  which 
belonged  to  him." 
42 — Crv.  Proc. 


658  EXECUTION 


SECTION    2.     PROPERTY   AND    INTERESTS    SUBJECT 
TO  EXECUTION 

MACK  V.  PARKS 
Supreme  Judicial  Court  of  Massachusetts,  1857 

74  Mass.  517 

Action  of  tort  for  taking  the  plaintiff's  watch  from  his  person 
and  carrying  it  away,  and  converting  it  to  the  defendant's  use.  The 
question  whether  the  taking  was  lawful  was  submitted  to  the 
decision  of  the  court  upon  the  following  facts: 

The  defendant  was  a  deputy  sheriff  and  acting  in  his  official 
capacity  at  the  time  of  the  tort  alleged.  While  the  plaintiff  and 
one  or  two  others  were  in  a  shop,  talking  about  watches,  the  de- 
fendant came  in,  and  joined  in  the  conversation.  In  the  course  of 
it  the  plaintiff  took  the  defendant's  watch  into  his  hands  to  com- 
pare its  weight  with  that  of  his  own,  and  then  handed  bodi  to  the 
defendant.  The  defendant  then  (still  holding  the  plaintiff's  watch 
in  his  hand)  told  the  plaintiff*  that  he  had  a  writ  against  him  and 
must  attach  his  watch,  and  asked  him  to  take  it  off,  it  being  con- 
nected to  his  person  by  a  silk  band  ■which  passed  about  his  neck. 
The  plaintiff  refused  to  take  it  off;  upon  which  the  defendant 
severed  the  band  at  the  place  where  it  was  sewed  together,  and 
took  the  watch ;  and  afterward,  before  the  beginning  of  this  suit, 
tendered  to  the  plaintiff  the  value  of  the  silk  band.^^ 

BiGELOW,  J. :  It  seems  to  be  perfectly  well  settled  at  common 
law,  that  chattels  in  the  actual  possession  and  use  of  a  debtor  can 
not  be  taken  or  distrained.  It  is  laid  down  in  Co.  Lit.  47a,  that 
"aldiough  it  be  of  valuable  property,  as  a  horse,  etc.,  yet  when  a 
man  or  woman  is  riding  on  him,  or  an  axe  in  a  man's  hand  cutting 
of  wood  and  the  like,  they  are  for  that  time  privileged  and  can  not 
be  distrained."  So  "if  nets  are  in  the  hands  of  a  man,  they  can 
not  be  distrained  any  more  than  a  horse  on  which  a  man  is."  Har- 
grave's  note  294.    S.   P.  Read  v.   Burley,  Cro.  Eliz.   539,   596.^® 

"The  arguments  of  counsel  and  part  of  the  opinion  of  the  court  are 
omitted. 

"Accord:  Storey  v.  Robinson,  6  T.  R.  138  (1795).  But  in  State  ex  rel. 
Rogers  v.  Dilliard,  3  Ired.  (N.  Car.)  102,  38  Am.  Dec.  708  (1842)  it  was  said 
that  a  horse  although  ridden  by  its  owner,  could  be  levied  on  and  that  it  was 
the  duty  of  the  party  to  surrender  the  horse  to  the  officer.  In  Bell  v.  Douglass, 
I  Yerg.  (Tenn.)  397  (1830),  tools  of  a  meclianic  in  use  were  held  subject  to 
levy.  In  Green  v.  Palmer,  15  Cal.  411,  76  Am.  Dec.  492  (i860),  a  levy  upon  a 
bag  of  gold,  which  the  debtor  was  carrying  along  the  street,  was  sustained  as 
not  tortious.  Field,  C.  J,  said :  "The  coin  was  contained  in  a  bag,  which  was 
held  by  the  plaintiff  in  his  hand,  and  from  its  seizure  thus  situated  the  plain- 
tiff could  not  claim  any  exemption,  as  he  might,  perhaps,  do  in  reference  to 
money  upon  his  person.  Thus  situated  it  was  like  a  horse  held  by  its  bridle, 
subject  to  seizure  under  execution  against  its  owner." 

In  Moormati  v.  Quick,  20  Ind.  67  (1863),  the  sheriff  levied  on  money  as 
it  was  being  counted  out  to  the  debtor  at  a  bank  in  payment  of  a  check. 


MACK   V.    PARKS  659 

In  the  leading  case  of  Simpson  v.  Hartopp,  Willes,  512,  which  Mr. 
Justice  Buller  saj-s  (4  T.  R.  568)  is  "of  great  authority  because  it 
was  twice  argued  at  the  bar,  and  Lord  Chief  Justice  Willes  took 
infinite  pains  to  trace  with  accuracy  those  things  which  are  priv- 
ileged from  distress,"  it  is  distinctly  adjudged  that  things  in  actual 
use  can  not  be  taken  or  distrained ;  and  the  reason  given  is,  that  an 
attempt  to  distrain  such  articles  would  lead  to  a  breach  of  the 
peace.  In  the  modern  case  of  Sunholf  v.  Alford,  3  M.  &  W.  253, 
it  is  laid  down  as  well  settled  law,  that  "goods  in  the  actual  pos- 
session and  use  of  the  debtor  can  not  be  distrained" ;  "a  man's 
clothes  can  not  be  taken  off  his  back  in  execution  of  a  fieri  facias."^'' 
The  main  ground  on  v/hich  these  and  other  authorities  rest  is,  that 
it  would  tend  directly  to  a  collision  and  breach  of  the  peace,  if 
articles  thus  situated  were  allowed  to  be  taken  from  the  hands  of  a 
debtor.  Gorton  v.  Falkner,  4  T.  R.  565 ;  Storey  v.  Robinson,  6 
T.  R.  139;  Adames  v.  Field,  12  Ad.  &  El.  649,  and  4  P.  &  Dav,  504. 
Com.  Dig.  Distress,  C.  Gilbert  on  Distresses,  43.  There  are  many 
articles  of  personal  property,  subject  to  attachment  under  our  laws 
and  usages,  which  could  not  have  been  distrained  or  taken  at  com- 
mon law  under  the  rule  as  stated  in  the  earliest  authorities.  Potter 
V.  Hall,  3  Pick.  (Mass.)  368.  But  in  the  absence  of  any  proof  of 
usage  or  custom  in  this  state,  from  which  it  might  be  inferred  that  a 
different  rule  of  law  has  ever  been  adopted,  the  present  case  falls 
v/ithin  the  principles  on  which  the  English  authorities  rest,  and 
m_ust  be  governed  by  them. 

The  v/atch,  at  tlie  time  it  was  taken  by  the  defendant,  was  in 
the  plaintiff's  actual  possession  and  use,  v-orn  as  part  of  his  dress 
or  apparel,  and  v^as  severed  from  his  person  by  force.  Such  an 
act,  if  permitted,  v/ould  tend  quite  as  directly  to  a  breach  of  the 
peace  as  to  take  from  a  man  the  horse  on  which  he  vv^as  riding,  or 
the  axe  with  v/hich  he  was  felling  a  tree.  It  is  indeed  a  m.ore  gross 
violation  of  the  sanctity  of  the  person,  and  tends  to  a  greater 

Held,  that  there  was  not  si:ch  a  title  in  the  money  in  the  debtor  as  would, 
previous  to  its  dehvery  to  him,  enable  the  sheriff  to  seize  it.  Accord :  Richards 
V.  Heger,  122  Mo.  App.  512,  99  S.  W.  802  (1907).  See  also  Cotirtoy  v.  Vincent, 
15  B_^eav.  486  (1S52)  ;  Bindon's  Case,  Moores  (K.  B.)  214  (1585)  Arguendo. 

In  Hardtstey  and  Barney,  Comb.  356  (1695),  it  is  said,  per  Holt,  C.  J.: 
"Upon  a  fieri  facias  the  sheriff  may  take  any  thing  but  wearing  clothes;  nay, 
if  the  party  hath  two  gowns,  he  may  take  one  of  them."  In  Cooke  V.  Gibbs', 
3  Mass.  193  (1807),  it  is  said,  per  Parsons,  C.  J.,  "a  fieri  facias  at  common 
law  is  issued  against  the  goods  and  chattels  of  the  debtor  without  any  excep- 
tion; but  if  the  sheriff  were  to  strip  the  debtor's  wearing  apparel  from  his 
body,  he  would  be  a  trespasser,  for  such  apparel  when  worn,  is  not  liable  to 
the  execution."  In  Bumpus  v.  Maynard,  38  Barb.  (N.  Y.)  626  (1861),  it  was 
held  that  the  sheriff  was  not  liable  for  failure  to  seize  on  execution  the 
necessary  wearing  apparel  of  the  judgment  debtor  who  was  in  bed  at  the 
time  of  levy. 

By  statute  in  many  jurisdictions  wearing  apparel  is  exempt  from  execu- 
tion. Bozvne  v.  Witt,  19  Wend.  (N.  Y.)  47s  (1838);  Fra-ier  v.  Barnum. 
19  N.  J.  Eq.  316,  97  Am.  Dec.  666  (1868).  Jewelry  may  be  so  classed  but  debt- 
ors will  not  be  permitted  to  invest  large  sums  in  articles  of  personal  adornment 
and  by  wearing  them,  defraud  their  creditors.  In  re  Gemmel,  155  Fed.  551 
(1907)  ;  In  re  Evans  &  Co.,  158  Fed,  153  (1907)  ;  In  re  Leech,  171  Fed.  622 
(1909). 


(^yO  EXl-Cl'TION 

ai:s;ravatlon  of  the  fcclin£::s  of  the  dohtor.  Nor  would  it  be  prac- 
ticable to  place  any  limit  to  the  exercise  of  such  a  rioht.  If  allowed 
at  all,  it  nuist  extend  to  every  article  of  value  usually  worn  or  car- 
ried about  the  person;  if  an  officer  can  sever  a  silken  cord,  he 
may  likewise  break  a  metalic  chain;  if  he  can  seize  and  take  a 
watch,  so  he  may  wrest  a  breastpin  or  earring  from  the  person,  or 
thrust  his  hand  into  the  pocket  and  carry  off  money ;_  he  may,  in 
short,  resort  to  any  act  of  force  necessary  to  enable  him  to  attach 
property  in  the  personal  custody  of  the  debtor.  It  is  obvious  that 
such  a  doctrine  would  lead  to  consequences  most  dangerous  to  tlie 
good  order  and  peace  of  society. 

It  is  no  answer  to  this  action,  that  the  defendant  tendered  to 
the  plaintiff  the  value  of  the  cord  by  which  the  watch  was  attached 
to  the  person,  or  that  the  watch  itself,  detached  from  the  person, 
was  subject  to  attachment.-^  The  wrong  consists  in  having  taken 
an  article  from  the  person  of  the  plaintiff,  which  was  at  the  time 
by  law  exempted  from  attachment.  The  mode  in  which  it  was  done 
is  wholly  immaterial.  He  is  liable  for  the  value  of  the  watch,  being 
a  trespasser  ab  initio.  "No  lawful  thing,  founded  on  a  wrongful 
act,  can  be  supported."  Lutt'm  v.  Benin,  ii  Mod.  50;  Ilsley  v. 
Nichols,  12  Pick.  (Mass.)  270.  The  v/atch,  although  liable  to  at- 
tachment if  it  had  been  taken  by  tlie  defendant  when  not  connected 
with  the  person  of  the  plaintiff',  was  wrongfully  seized  and  can  not 
now  be  held  under  attachment. 

Judgment  for  the  plaintiff.-- 


=^In  Deposit  Naf.  Bank  v.  Wichham,  44  How.  Pr.  (N.  Y.)  421  (1873). 
the  defendant,  the  judgment  debtor,  while  under  supplementary  proceedings, 
in  which  he  was  restrained  from  disposing  of  his  property,  handed  his  watch 
to  his  attorney  as  a  fee  for  services  to  be  rendered;  for  this  he  was  adjudged 
guiltv  of  contempt  and  directed  to  be  imprisoned.  In  Frasier  v.  Barnnm, 
19  N.  J.  Eq.  316.  97  Am.  Dec.  666  (1868),  in  proceedings  in  equity  for  the 
examination  of  the  judgment  debtor  it  was  disclosed  that  the  defendant  was 
in  possession  of  jewelry  worth  $300.  The  chancellor  said:  "The  rings  and 
jewelr>-  are  not  wearing  apparel,  and  must  be  given  up  to  the  complainant  to 
satisfy  his  debt.  Being  articles  generally  worn  on  the  person,  it  may  be  out 
of  the  power  of  the  sheriff  to  levy  on,  or  take  possession  of  them,  but  a 
receiver  will  be  appointed  in  this  cause,  and  an  order  made  to  deliver  them 
to  him." 

"So,  also,  property  taken  from  the  person  of  a  prisoner  upon  his  arrest, 
whether  upon  criminal  or  civil  process,  is  not  subject  to  levy.  Robinson  v. 
Howard,  61  Mass.  257  (i8si);  Morris  v.  Pcnniiuan,  80  Mass.  220,  74  Am. 
Dec.  675  (1859)  :  Davie s  v.  Gallagher,  17  Phila.JPaJ  229  (1883)  ;  Commercial 
Exchange  Bank  vTHcLeod,  65  Iowa  665,  19  N.  W.  329,  22  N.  W.  919,  54  Am. 
Rep.  36  (1885)  ;  Dahms  v.  Scars,  13  Ore.  47,  il  Pac.  891  (1885)  ;  Richardson 
v.  Anderson,  4  White  &  Wilson's  Civil  Cases  Court  of  Appeals  (Tex.),  §  286, 
18  S.  W.  195  (1892)  ;  Connolly  v.  Thurher  Whyland  Co.,  92  Ga.  651,  18  S.  E. 
1004  (1893)  ;  Holker  v.  Hennessey,  141  Mo.  527,  42  S.  W.  1090,  39  L.  R.  A. 
165,  64  Am.  St.  524  (1897)  ;  Hill  v.  Hatch,  gq  Tenn.  39,  41  S.  W.  349,  63  Am. 
St.  822  (1897)  ;  Hubbard  v.  Garner,  115  Mich.  406,  73  N.  W.  390,  69  Am.  St. 
580  (1897).  Contra:  Ex  parte  Htirn.  92  Ala.  102,  9  So.  S^S,  I3  L.  R.  A.  120, 
25  Am.  St.  23  (1890)  ;  Closson  v.  Morrison,  47  N.  H.  482,  93  Am.  Dec.  459 
(1867),  in  the  absence  of  bad  faith;  Reifsnyder  v.  Lee,  44  Iowa  loi,  24  Am. 
Rep.  733  (1876)  ;  Byrne  v.  Byrne,  89  Wis.  659,  62  N.  W.  413  (1895),  where 
the  action  against  the  prisoner  was  by  the  person  who  suffered  the  loss  of  the 
f  roi"  ertv. 

"The  general  rule  of  law  is  that  all  chattels,  the  property  of  the  dcb.to-, 


TURNER   V.    FEXDALL  66 1 

TURNER  V.  FENDALL 
Supreme  Court  of  the  Uxited  States,  iSoi 

I  Cr.  {U.  S.)  117 

Error  to  the  Circuit  Court  of  the  District  of  Columbia.  The 
plaintiff  in  error  and  defendant  below  had  been  sergeants  of  the 
town  of  Alexandria  and  had  returned  on  a  writ  of  fieri  facias, 
issued  on  a  judgment  rendered  by  the  Court  of  Hustings  in  favor 
of  Philip  Richard  Fendall,  that  he  had  made  the  debt,  but  had 
levied  thereon  a  writ  of  fieri  facias  on  a  judgment  against  Young 
and  Fendall  trading  as  Robert  Young  &  Co.  Before  the  next  suc- 
ceeding term  the  Hustings  Court  was  abolished  and  its  powers 
transferred  to  the  circuit  court.  Fendall  moved  for  and  obtained 
judgment  against  Turner  for  failure  to  pay  him  the  amount  levied 
on  his  writ.   Turner  brought  error.-^ 

Marshall,  C.  J. :  Tv/o  questions  have  been  made  at  the  bar. 
(i)  Can  an  execution  be  levied  on  money?  (2)  Can  it  be  levied  on 
money  in  the  hands  of  the  officer? 

The  principle  that  an  execution  can  not  be  levied  on  money  has 
been  argued  to  be  maintainable  under  the  authority  of  adjudged 
cases,  and  under  the  letter  and  meaning  of  the  act  of  the  Virginia 
legislature  on  the  subject  of  executions.  Yet  no  such  case  has  been 
adduced.  Lord  Mansfield,  in  the  case  cited  from  Douglas  219, 
said  "he  believed  there  were  old  cases  where  it  had  been  held  that 
the  sheriff  could  not  take  money  in  execution  even  though  he  found 
it  in  the  defendant's  scrutoir,  and  that  a  quaint  reason  was  given 
for  it,  viz.,  that  money  could  not  be  sold,"  and  it  is  believed  that 
there  may  be  such  cases,  but  certainly  there  are  cases  in  which  the 
contrary  doctrine  has  been  held.  In  2  Shower  166,  it  Is  laid  down 
expressly  that  money  may  be  taken  on  a  levari  facias,  and  no  dif- 
ference in  this  respect  is  perceived  between  the  two  sorts  of  execu- 
tion. In  Dalton's  Sheriff  145,  it  is  also  stated  in  terms  that  money 
may  be  taken  in  execution  on  a  fieri  facias.  The  court  can  perceive 

may  be  taken  in  execution,  and  v/lienever  an  officer  has  it  in  his  power  to 
satisfy  an  execution  in  his  hands,  it  is  his  dut}^  to  do  so,  and  if  he  omits  to 
perform  his  duty  he  must  be  accountable  to  those  who  may  be  injured  by  the 
omission."  Per  Marshall,  C.  J.,  in  Turner  v.  Fendall,  i  Cranch.  117  (1801). 
See  also  Fleetwood's  Case,  8  Coke  340  (i&io)  ;  Francis  and  Nash,  Temp. 
Hard.  53  (1733)  ;  Henson  v.  Edzvards,  10  Ircd.  (N.  Car.)  43  (1S49)  ;  Stief  v. 
Hart,  I  N.  Y.  20,  4  How  Pr.  (N.  Y.)  223  (1847)  ;  Knox  v.  HiirJ,  18  Mo.  243 
(1853).  In  Oystead  v.  Shed,  12.  Mass.  505  (1815),  it  was  held  that  private 
papers  and  account  books  were  not  goods  and  chattels  that  could  be  sold  on 
execution.  So  also  manuscripts.  Dart  v.  WoodJiousc,  40  Mich.  399,  29  Am. 
Rep.  544  (1879).  Contra:  IVashington  Bank  v.  Fidelity  Abstract  Co.,  15 
W^ash.  487  (1896)  and  see  Banker  v.  CaldzveU,  3  ]\Iinn.  (Gil.  46)  94  (1859). 
As  to  intoxicating  liquors  see  Hincs  V.  Stahal,  79  Kans.  88,  99  Pac.  2^2,  131 
Am.  St.  280.  20  L.  R.  A.,  N.  S.,  11 18  (1908)  and  note. 

"The  facts  arc  abridged  and  onlj'^  extracts  from  the  opinion  of  the  court 
printed. 


662  EXECUTION 

no  reason  in  the  nature  of  thuiLis  wliy  an  execution  should  not  be 
levied  on  nionev."' 

But  has  numey  not  yet  paid  to  the  creditor  become  his  prop- 
erty? That  is,  allhoui^h  his  title  to  the  sum  levied  may  be  com- 
plete, has  he  tlie  actual  legal  ownership  of  the  specific  pieces  of 
coin  which  the  officer  may  have  received?  On  principle  the  court 
conceives  that  he  has  not  this  ownership.  The  judgment  to  be 
satisfied  is  for  a  certain  sum,  not  for  the  specific  pieces  which  con- 
stitute that  sum,  and  the  claim  of  the  creditor  on  the  sheriff  seems 
to  be  of  the  same  nature  with  his  claim  under  the  judgment,  and 
one  which  may  be  satisfied  in  the  same  manner.  No  right  v/ould 
exist  to  ]nirsue  the  specific  pieces  received  by  the  officer,  although 
they  should  even  have  an  earmark;  and  an  action  of  debt  not  of 
detinue,  may  be  brought  against  him  if  he  fails  to  pay  over  the 
sum  received,  or  converts  it  to  his  own  use.  It  seems  to  the  court 
that  a  right  to  specific  pieces  of  money  can  only  be  acquired  by 
obtaining  the  legal  or  actual  possession  of  them,  and  until  this  is 
done  there  can  be  no  such  absolute  ownership  as  that  an  execution 
may  be  levied  on  them.  A  right  to  a  sum  of  money  in  tlie  hands 
of  a  sheriff  can  no  more  be  seized  than  a  right  to  a  sum  of  nioney 
in  the  hands  of  any  other  person,  and  however  wise  or  just  it  may 
be  to  give  such  a  remedy,  the  law  does  not  appear  yet  to  have 
given  it."' 

"^Accord:  King  v.  IVehh,  2  Show.  i66  (i6Si);  Armistcad  v.  Phil  pot,  i 
Dougl.  231  (1779)  ;  Brooks  v.  Thompson,  i  Root  (Conn.)  116  (1790)  ;  Handy 
V.  Dobbin,  12  Johns.  (N.  Y.)  220  (1815);  Holmes  v.  Nimcaster,  12  Johns. 
(N.  Y.)  395  (1815)  ;  Summers  v.  Caldwell,  2  N.  &  McC.  (S.  Car.)  341  (1820)  ; 
Spencer  v.  Blaisdcll,  4  N.  H.  198,  17  Am.  Dec.  412  (1827)  ;  Sheldon  v.  Root, 
33  Mass.  (16  Pick.)  ^67,  28  Am.  Dec.  266  (1835)  ;  Hcrron's  Apt>eal,j2Q  Fa.  St. 
240   (1857);  Klin£[clter^Bm£^JL.JlLhMlh2  376    (1884); 


Noble  v.  Kellv,  40  N.  Y.  415  (iSGoYT'SulJrvan  v.  Tinker.  140  Pa.  St.  3.S.  21 
At!  2^7  (1891);  Exchange  Nat.  Bank  of  Montgomery  v.  Stewart,  158  Ala. 
218,  48  So.  487  (1909).  See  Pa.  Act  of  June  16^  1836.  P.  h^2l5,  §§  24,  25; 
New  York  Code  Civ.  Proci7?T4io. 

^Accord:  Ross  v.  Clarke,  1  Dall.  (U.  S.)  354,  i  L-  ed.  173  (1788); 
Wilder  v.  Bailey,  3  Mass.  2S9  (1807)  ;  Knight  v.  Criddle,  9  East  48  (1807)  ; 
Dawson  v.  Holcomb,  1  Ohio  27s,  13  Am.  Dec.  618  (1824)  ;  Dubois  v.  Dubois, 
6  Cow.  (N.  Y.)  494  (1826)  ;  Prentiss  v.  Bliss,  4  Vt.  513,  24  Am.  Dec.  631 
(1832);  Thompson  v.  Brown,  34  Mass.  (17  Pick.)  462  (1835);  Masters  v. 
Stanley,  8  Dowl.  169  (1840)  ;  Reddick  v.  Smith,  4  111.  (3  Scam.)  451  (1842)  ; 
Collingridge  v.  Paxton,  11  C  "B.  683  (1851)  ;  Clymer  v.  Willis,  3  Cal.  363,  58 
Am.  Dec.  414  (1853);  Muscott  v.  Woolworth,  14  How.  Pr.  (N.  Y.)  477 
(1857)  ;  Sibert  v.  Humphries,  4  Ind.  481  (1853)  ;  Baker  v.  Kenworthy,  41  N. 
Y  215  (1869)  ;  State  v.  Taylor,  56  Mo.  492  (1874)  ;  Hardy  v.  Tilton,  68  Maine 
105,  28  Am.  Rep.  34  (1S78);  Smith  v.  McMillan,  84  N.  Car.  593  (1881); 
Manly  v.  McCarty,  5  N.  J.  L.  218  (1882).  Contra:  Dolby  v.  Mttllins,  3  Humph. 
(Tenn.)  437,  39  Am.  Dec.  180  (1842)  ;  New  Haven  Steam  Saw  Mill  Co.  v. 
Fowler,  28  Conn.  103  (1859)  ;  Mann  v.  Kelsey,  71  Tex.  609,  12  S.  W.  43.  10 
Am.  St.  800  (188S),  and  compare  Harding. v.  Stevenson,  6  H.  &  J.  (Md.) 
254  (1824)  ;  Crane  v.  Freese,  16  N.  J.  L.  305  (1838). 

The  principle  has  been  applied  to  a  surplus  remaining  in  the  sheriff's 
hands  after  satisfaction  of  a  prior  execution.  Fieldhonse  v.  Croft,  4  East 
SIC  (1804);  Willows  v.  Ball,  2  B.  &  P.  (N.  S.)  376  (1806);  Harrison  v. 
Paynter,  6  M.  &  W.  387  (1840)  ;  Wood  v.  Wood,  4  Ad.  &  El.  (N.  S.)  397 
C1843).  But  the  v.'eight  of  authority  is  contra.  Jaquett  v.  Palmer,  2  Harr. 
(Del.)  144  (1836)  ;  King  v.  Moore,  6  Ala.  i5o,  41  Am.  Dec.  44  (1844)  ;  Lang- 
don  V.  Locket t,  6  Ala.  727,  41  Am.  Dec.  78  (1844)  ;  Pierce  v.  Carleton,  12  111. 


BAYER   V.    DOSCHER  663 

The  mandate  of  the  writ  o£  fieri  facias  as  originally  formed,  is 
that  the  officer  have  the  money  in  court  on  the  return  day,  there  to 
be  paid  to  the  creditor.  Forms  of  writs  furnish  strong  evidence  of 
whsX  was  law  when  they  were  devised,  and  of  the  duty  of  the 
officer  to  whom  they  are  directed. 

Judgment  affirmed. 


BAYER  V.   DOSCHER 

Supreme  Court  of  New  York,  Appellate  Division,  1910 

139  App.  Div.  (N.  Y.)  324 

Appeal  by  the  defendant,  John  H,  Doscher,  from  a  judgment 
of  the  Supreme  Court  in  favor  of  the  plaintiff.  The  complaint  was 
for  services  rendered,  materials  furnished  and  upon  an  account 
stated.  Judgment  was  demanded  for  $55.75.  The  defendant's  an- 
swer admitted  that  there  was  due  the  plaintiff  $55  and  alleged  as 
a  defense  that  on  a  judgment  obtained  by  Winthrop  P.  Soule  against 
Thomas  P.  Bayer  for  the  sum  of  $85.85  an  execution  was  duly 
issued  out  of  the  Supreme  Court  and  on  December  2,  1909,  the 
sheriff  "duly  levied  under  said  execution  upon  the  sum  of  $55  in 
cash,  in  the  possession  of  the  defendant  herein,  the  property  of  the 
aforesaid  Thomas  P.  Bayer,  plaintiff.  That  thereupon  any  and  all 
sums  due  from  this  defendant  to  the  plaintiff  were  discharged  and 
satisfied."  The  facts  thus  alleged  in  the  answer  occurred  after 
the  commencement  of  this  action.  The  plaintiff  demurred  to  the 
foregoing  defense  on  the  ground  that  it  was  insufficient  in  law  and 
the  court  sustained  the  demurrer  and  gave  judgment  for  $55.-^ 

Cochrane,  J. :  The  answer  is  insufficient  as  a  defense  to  the 
causes  of  action  alleged  in  the  complaint  because  there  is  no  con- 
nection shown  between  the  money  alleged  to  have  been  levied  upon 
as  the  property  of  the  plaintiff  and  such  causes  of  action."   That 

358,  54  Am.  Dec.  405  (1851)  ;  Wheeler  v.  Smith,  11  Barb.  (N.  Y.)  345  (iS'^i)  ; 
Herron's  Appeal,  29  Pa.  St.  24Q  (1857);  Walton  v.  Compton,  28  Tex." 569 
(1866)  ;  Roddey  v.  Erwin.'^i^S).  Car.  36,  9  S.  E.  729  (1888)  ;  Oppenheimer  v. 
Marr,  31  Nebr.  811,  48  N.  W.  818,  28  Am.  St.  539  (1891)  ;  Wiant  v.  Hays,  38 
W.  Va.  681,  18  S.  E.  807,  23  L.  R.  A.  82  (1893)  ;  Young  Smyth  Field  &  Co.  v. 
Levy,  6  Super.  Ct.  Pa.  23  (1897);  Commerce  Vault  Co.  v.  Barrett,  123  111. 
App.  398  (1905)  ;  Turner  v.  Gibson,  (Tex.)  152  S.  W.  839  (1913). 

As  a  general  principle,  and  in  the  absence  of  statutes  establishing  a 
special  rule  for  particular  cases,  property  in  the  custody  of  the  law  is  not 
subject  to  execution.  Wineqardner  v.  Hafer.js.Vsi.  St.  144.  (1850);  IViswall 
V.  Sampson,  55  U.  S.  52,  14  L.  ed.  322  (1852)  ;  Columbian  Book  Co.  v.  De 
Golyer,  115  Mass.  67  (1874)  ;  First  Nat.  Bank  v.  Dunn,  97  N.  Y.  149,  49  Am. 
Rep.  517  (1S84)  ;  Rockland  Bank  v.  Alden,  103  Maine  230,  68  Atl.  863  (1907). 

^^Part  of  the  statement  of  facts  and  opinion  of  the  court  are  omitted. 

^'To  be  subject  to  levy  the  identical  money  must  be  the  property  of  the 
debtor.  It  is  not  sufficient  that  the  sum  is  owing  to  him  or  is  on  general 
deposit  in  bank.  Maxzvell  v.  McGee,  66  Mass.  137  (1853)  ;  McMillan  v. 
Richards,  9  Tal.  365,  70  Am.  Dec.  655  (i8s8)  ;  Scott  Kerr  &  Co.  v.  Smith, 
2  Kans.  438  (1864)  ;  Carroll  v.  Cone,  40  Barb.  (N.  Y.)  220  (1862)  ;  Rozell  v, 
Rhodes,  116  Pa.  St.  129,  Q_Atl.  160,  2  Am.  St.  591   (1887)  National ~BahT~of 


664  EXECUTION 

irioiioy  ninv  have  represented  any  cither  transaction  between  the 
]>artics.  ]\lonevs  belonijing  to  a  judgment  debtor  may  be  levied  upon 
under  an  execution.  Code  Civ.  Pre,  section  1410.  But  if  the  de- 
fendant had  in  his  possession  money  belonjjinjj  to  the  plaintiff  which 
was  thus  levied  upon,  that  could  not  affect  the  cause  of  action 
ajrainst  defendant  for  services  rendered  and  material  furnished  or 
on  an  account  stated.  He  still  remained  indebted  on  those  causes 
of  action. 

Assuming,  however,  that  the  defendant  intended  to  allege  that 
he  paid  to  the  sheriff  on  the  execution  against  plaintiff  the  amount 
which  defendant  admits  having  owed  the  plaintiff'  on  the  causes  of 
action  alleged  in  the  complaint  such  payment  was  voluntary.  It  is 
well  settled  that  a  chose  in  action  is  not  subject  to  the  lien  of  an 
execution  and  is  incapable  of  levy  or  seizure  by  the  sheriff.  Mc- 
N'eely  v.  [fV/xr,  166  N.  Y.  124;  Clark  v.  Warren,  7  Lans.  (N.  Y.) 
180;  Clarke  v.  Goodridge,  41  N.  Y.  210;  Duffy  v.  Dawson,  2  Misc. 
(N.  Y.)  403.  Defendant  simply  owed  a  debt  to  the  plaintiff  and 
could  not  extinguish  that  debt  by  voluntarily  paying  some  other  debt 
which  the  plaintiff  owed.  The  sheriff  could  not  levy  on  the  debt  of 
defendant  to  plaintiff  and  defendant  had  no  more  right  to  volun- 
tarily pay  the  sheriff  than  he  had  to  pay  the  judgment  creditor 
directly.'® 

Judgment  affirmed. 


the  Republic  v.  Young,  125  111.  App.  139  (1905);  Summerfield  v.  Goldstein, 
59  Misc.  387,  112  N.  Y.  S.  357  (1908)  ;  Wash  v.  Hendrick,  143  Ky.  443,  136 
S.  W.  883  (1911)- 

^'At  common  law  choses  in  action  were  not  subject  to  execution.  Co. 
Litt.  290b;  Francis  v.  Nash,  Lee  Temp.  Hardw.  53  (1733)  ;  Diindas  v.  Dutens, 
I  Ves.  Jr.  196  (1790)  ;  Denton  v.  Livingston,  9  Johns.  (N.  Y.)  96,  6  Am. 
Dec.  264  (1812)  ;  Wicr  v.  Davis,  4  Ala.  442  (1842)  ;  Johnson  v.  Crawford, 
6  Blackf.  (Ind.)  337  (1843)  ;  Moore  v.  Pillow,  3  Humph.  (Tenn.)  448  (1842)  ; 
Rhoadsjv^M^egonigal,2  Pa.  St.  3g  Q845)  ;  Price  v.  Brady,  21  Tex.  614  (1858)  ; 
CTwndler  v7  Caldzvcll,  17  Ind.  256  ( 1861 )  ;  Brotver  v.  Smith,  17  Wis.  410 
(1863)  ;  Dore  v.  Dougherty,  72  Cal.  232,  13  Pac.  621,  i  Am.  St.  48  (1887)  ; 
Crawford  v.  Schmitc,  139  111.  564,  29  N.  E.  40  (1891)  ;  Tradesmen's ^BlJ.a._^ 
LoanAssn  v  Mnh^r^g  P?  Sjiprr  ^<".  3411.^^809)  ;  Champagne  v.  Bloch  Bros., 
121  La.  Ann.  193,  46  So.  207  (1908)  ;  Bidle  v.  Hamilton,  161  111.  App.  587 
(1911);  In  re  Fritz's  Estate,  83  N.  J.  Eq.  610,  91  Atl.  1017  (1914).  As  to 
equity  see  note  to  Hall  v.  Henderson,  126  Ala.  449,  61  L.  R.  A.  621  (1900). 

In  many  jurisdictions  choses  in  action  can  be  reached  by  attachment 
or  garnishment.  And  for  certain  classes  of  choses  in  action  there  are  statu- 
tory provisions  for  their  sale  upon  execution.  Such  statutes  mark  the  limits 
of  the  ricrht  and  prescribe  the  manner  in  which  it  shall  be  exercised.  California 
Code  Civ.  Pro.,  §  688;  Davis  v.  Mitchell,  34  Cal.  81  (1867)  ;  Hoxie  v.  Bryant, 
131  Cal.  85,  63  Pac.  153  (1900)  ;  Iowa  Code  (1897)  3971;  Burns'  Ind.  Ann. 
Stat.  (1914),  §  763;  Bay  v.  Saulspaugh,  74  Ind.  397  (1881)  ;  N.  J.  Comp.  Stat. 
(1910),  p.  2244,  §  4  ;  Pq  Art  nf  Jiinp  TfS,  t8^6,  P.  L.  7^^-;,  ^  22,  P.  &  L.  Dip.  (2d 
ed.)  3387:  Rojelle  v.  Rhodes,  I-I6  Pa.  St.  i29^_Atl.  100,  2  Am.  St.  591  (1887)  ; 
X.  Y.  Code  Civ.  Pro.,  §  141 1;  McKecly  v.  Weh,  166  N.  Y.  124,  59  N.  E.  697 
C1901)  ;  Henry  v.  Traynor,  42  Minn.  234,  44  N.  W.  II  (1889)  Judgments; 
Fishhurn  v.  Loudershausen,  50  Ore.  363,  92  Pac.  1060,  14  L.  R.  A.,  N.  S.  1234 
C1907)  Promissory  notes;  Freeman  on  Executions  (3d  ed.),  §  112;  Herman 
on  Executions,  §  122. 


PARI-IAM    V.    THOMPSON  665 

PARHAM    V.    THOMPSON 
Court  of  A.ppeals  of  Kentucky,  1829 
2  7.  /.  Mar.    (Ky.)    159 

Robertson,  J. :  The  only  question  which  it  is  necessary  to 
decide  in  this  case  is  whether  a  creditor  who  has  a  fieri  facias 
against  the  estate  of  his  debtor  is  guilty  of  a  trespass,  by  entering 
on  land  in  the  possession  of  the  debtor,  for  the  purpose  of  assisting 
the  officer  to  levy  the  execution  on  the  growing  crop,  and  afterward 
entering,  to  bid  at  the  sale  of  the  crop,  before  it  is  ripe,  or  is  secured. 
A  fieri  facias  may  be  levied  on  a  growing  crop ;  it  is  a  chattel.  It 
is  "fructus  industriale,"  which  goes  to  the  executor;  2  Tidd's  Pr. 
917;  Gil.  Executor,  19;  i  Salk.  368;  2  Bl.  Coram.  428;  Toller,  204. 

Corn  growing  passes  to  the  devisee  of  the  personal  property, 
and  not  to  the  devisee  of  the  land.  Toller  204 ;  Swin.  933.  It  passes 
by  parol  contract.  Roberts  on  Frauds  126;  Noble  v.  Smith,  2  Johns. 
(N.  Y.)  52;  I  Ld.  Raym.  182;  Bui.  Ni.  Pri.  34. 

Consequently,  although  it  may  be  inconsistent,  and  injurious, 
to  sell  growing  corn,  and  therefore  the  general  practice  is  to  wait 
after  the  levy,  until  it  shall  be  gathered ;  yet  the  legal  right  to  sell 
it  before  it  shall  be  gathered,  results  from  its  personal  character 
and  the  right  to  le\y  on  it.  See  Tidd.  91,  and  Whipple  v.  Foote,  2 
Johns.  (N.  Y.)  422.  The  argument  "ab  inconvenienti"  applies  no 
more  to  this  case  tlian  it  would  to  the  mere  right  to  sell  anything 
else  which  is  immature,  as  a  colt  or  a  pig. 

The  creditor,  therefore,  is  not  a  trespasser,  by  entering  with 
the  sheriff,  to  levy  and  to  sell ;  nor  for  directing  the  sale,  and  pur- 
chasing the  crop,  if  the  process  be  regular,  the  judgment  valid,  and 
the  sale  fair,  as  they  all  seem  to  have  been  in  this  case. 

Judgment  af^rmed.-^ 


^"Accord :  Penhallow  v.  Dzvight,  7  Mass.  34,  5  Am.  Dec.  21  ( 1810)  ; 
Stewart  v.  Doughty,  9  Johns.  (N.  Y.)  108  (1812)  ;  Hartwell  v.  Bissell,  17 
Johns.  (N.  Y.)  128  (1819)  ;  Peacock  v.  Purvis,  2  Brod.  &  Bingh.  362  (1820)  ; 
Stambaugh  v.  Yeates,  2  Rawle  (Pa.)  161  (1828)  ;  Craddock  v.  Riddlesbarger, 
2  Dana  (Ky.)  205  (1834);  SimtJTw'Tritt,  i  Dev.  &  Bat.  (N.  Car.)  241,  28 
Am.  Dec.  565  (1835);  Shepard  v.  Philbrick,  2  Den.  (N.  Y.)  174  (1846); 
Northern  v.  State,  I  Ind.  113  (1848)  ;  Wharton  v.  Naylor,  12  Ad.  &  El. 
(N.  S.)  673  (1848)  ;  gggrvgt^grr,  16  Pa.  St.  175,  55  Am.  Dec.  490  (1851); 
State  V.  Cemmill,  i  Houst.  (Del.)  9  (i8s5;  ',  Mackenzie  &  Son  v.  Lamplcy,  31 
Ala.  526  (1858)  ;  Bloom  v.  IVelsh,  27  N.  J.  L.  177  (1858)  ;  Lindley  v.  Kclley, 
42  Ind.  294  (1873)  ;  Pickens  v.  Webster,  31  La.  Ann.  870  (1879);  Gillitt  v. 
Truax,  27  Minn.  528,  8  N.  W.  767  (1881)  ;  Crine  v.  Tifts  &  Co.,  65  Ga.  644 
(1880)  ;  Preston  v.  Ryan,  4=^  Mich.  174,  7  N.  W.  819  (1S81)  ;  Long  v.  Seavers, 
103  Pa.  St.  m7  (188O  ;  Willis  v.  Moore,  59  Tex.  628,  46  Am." Rep.  284  (1883)  ; 
Sele'cman  V.  Kinnard,  55  Mo.  App.  635  (1893)  ;  Policy  v.  Johnson,  52  Kans. 
478,  35  P'ic.  8,  23  L.  R.  A.  258  (1893)  ;  Voils  v.  Battin,  6  Kans.  App.  742,  50 
Pac.  940  (1897)  ;  Sims  v.  Jones,  54  Nebr.  769,  75  N.  W.  150,  69  Am.  St.  749 
(1898)  ;  GordQn_\  Gordon,  a^  Pa.  Super.  Ct.  95  (1911).  In  some  states,  how- 
ever, it  is  only  when  severed  or  fit  to  be  severed  that  crops  are  deemed  sub- 
ject to  leyy.  Heard  v.  Fairbanks,  46  Mass.  (5  Mete.)  iii,  38  Am.  Dec.  394 
C1842)  :  N orris  v.  Watson,  22  N.  H.  364,  55  Am.  Dec.  160  (1851)  ;  Burleigh 


OOO  EXECUTION 


POOLE'S   CASE 
At  Nisi  Prius  in  Middlesex,  1703. 

iSalk.  368 

Tenant  for  years  made  an  under-lease  of  a  house  in  Holborn 
to  J.  S.,  who  was  by  trade  a  soap  boiler.  J.  S.,  for  the  convenience 
of  "his  trade,  put  up  fats,  coppers,  tables,  partitions,  and  paved  the 
back-side,  etc.  And  now  upon  a  fieri  facias  against  J.  S.,  which 
issued  on  a  judgment  in  debt,  the  sheriff  took  up  all  these  things, 
and  left  the  house  stripped,  and  in  a  ruinous  condition ;  so  that  the 
first  lessee  was  liable  to  make  it  good,  and  thereupon  brought  a  spe- 
cial action  on  the  case  against  the  sheriff,  and  those  that  bought  the 
goods,  for  the  damage  done  to  the  house.  Et  per  Holt,  C.  J.,  it  was 
held, 

First. — That  during  the  term  the  soap-boiler  might  well  remove 
the  fats  he  set  up  in  relation  to  trade,  and  that  he  might  do  it  by 
the  common  law  (and  not  by  virtue  of  any  special  custom)  in  favor 
of  trade  and  to  encourage  industry  ■/'"  but  after  the  term  they  become 
a  gift  in  law  to  him  in  reversion,  and  are  not  removable.^^ 

Secondly. — That  there  was  a  difference  between  w-hat  the  soap- 

V.  Piper,  51  Iowa  649,  2  N.  W.  520  (1879)  Scolley  v.  Pollock,  65  Ga.  339 
(1880)  ;  Ellithorpc  v.  Reidcsil,  71  Iowa  315,  32  N.  W.  238  (1887)  ;  Tipton  v. 
Martzell,  21  Wash.  273,  57  Pac.  806,  75  Am.  St.  838  (1889).  In  other  states 
statutes  expressly  restrict  the  levy  or  sale  to  crops  that  have  matured. 
Gillitt  V.  Truax,  27  Minn.  528,  8  N.  W.  767  (1881)  ;  Farmer's  Bank  v.  Morris, 
79  Kv.  1^7  (1880)  ;  Edwards  v.  Thompson,  85  Tenn.  720,  4  S.  W.  913,  4  Am. 
St.  807   (1S87);  Keslcr  v.  Cornelison,  98  N.  Car.  2>^2„  2  S.  E.  839   (1887). 

"Friictus  naturales"  while  unsevered  are  not  subject  to  execution  as 
personalty.  Sparrozsj  V.  Pond,  49  Minn.  412,  52  N.  W.  36  (1892)  ;  Adams  v. 
Smith,  I  Breese  (III.)  283  (1828)  ;  Bank  of  Lansingburgh  v.  Crary,  i  Barb. 
(X.  Y.)  542  (1847)  ;  Rogers  v.  Elliott,  59  N.  H.  201,  47  Am.  Rep.  192  (1879). 
As  to  peaches  compare  State  v.  Gemmill,  1  Houst.  (Del.)  9  (1855),  with 
Wilson  V.  Fowler,  88  Md.  601,  42  Atl.  201  (1898).  As  to  trees  in  a  nursery 
compare  Miller  v.  Baker,  42  Mass.  27  (1840),  with  Maples  v.  Millon,  31  Conn. 
598  (1863). 

Quaere:  Can  a  sheriff  seize  and  sell  crops  of  seed  sown  before  they  are 
sprung  up?    Bagshaw  v.  Farnsworth,  2  L.  T.  (N.  S.)  390  (i860). 

'"A  fixture  erected  by  a  tenant  on  demised  premises,  for  the  purpose  of 
carrying  on  his  trade  is  personal  property  and  may  be  removed  or  levied  on 
by  fieri  facias  against  him.  Cresson  v.  Stout,  17  Johns.  (N.  Y.)    116,  8  Am. 
l^ec.  373  (1819)  ;  Pitt  V.  Shew,  4  B.  &  Aid.  206  (1S21)  ;  Winn  v.  Ingilby,  5 
B.  &  Aid.  625  (1822)  ;  Farrant  v.  Thompson,  5  B.  &  Aid.  826  (1822)  ;  Doty 
V.   Gorham,  22  Mass.  487    (1827);    Wetherby  v.   Foster,  5  Vt.    136    (1832) 
Taffe  V.  Warnick,  3  Blackf.  (Ind.)   in,  23  Am.  Dec.  383   (1832)  ;  ljum£^ 
Miles.  A  Watts  (Pa.)  3.-^o  (1835);  Ombony  v.  Jones,  19  N.  Y.  234   (1859) 
Slate  V.  Bonham,  18  Ind.  231   (1862)  ;  Hey  y.  Bruner,  61  Pa.  ^87  (1S69)  . 
Fifield  v.  Maine  Cent.  R.  Co.,  62  Maine  77  (1873)  :  He  finer  v.  Lewis,  23_Iji. 


.St^302  (1873)  ;  Antrim  v.  Dobbs,  L.  R.  30  In  424  (1891)  ;  Gallagher  v.  L>avis, 
179  Pa._St_^04^36  Atl.  319   (1897);   Crossley  Bros.  v.  Cee,  L.   R.    (1908) 

"Lyde  v.  Russell,  i  B.  &  Ad.  394  (1830)  ;  Minshall  v.  Lloyd,  2  M.  &  W. 
450  (1837);  Throt>t>'s  Appeal,  70  Pa.  St.  vy=^  (1872);  Donnewald  v.  Ttirner 
Real  Estate  Co'.,  ^\  Mo.  App.  350  (1891)  ;  Morey  v.  Hoyt,  62  Conn.  542,  26  Atl. 
127,  19  L.  R.  a1  611  (1893)  accord. 


PETERSON    V.    SAN    FRANCISCO  66/ 

boiler  did  to  carry  on  his  trade,  and  v/hat  he  did  to  complete  the 
house,  as  hearths  and  chimney  pieces,  which  he  held  not  removable,^^ 
Thirdly. — That  the  sheriff  might  take  them  in  execution,  as  well 
as  the  under-lessee  might  remove  them,  and  so  this  was  not  like 
tenant  for  years  without  impeachment  of  waste;  in  that  case  he 
allowed  the  sheriff  could  not  cut  down  and  sell,  though  the  tenant 
might;  and  the  reason  is,  because  in  that  case  the  tenant  hath  only 
a  bare  power  without  an  interest ;  but  here  the  under-lessee  hath  an 
interest  as  well  as  a  power,  as  tenant  for  years  hath  in  standing 
corn,  in  which  case  the  sheriff  can  cut  down  and  sell. 


PETERSON  V.  SHERIFF  OF  SAN  FRANCISCO 

Supreme  Court  of  California,  1896 

115  Col.  211" 

McFarland,  J. :  The  appellant  filed  a  petition  in  the  superior 
court  for  a  writ  of  mandate.  He  averred  in  his  petition  (briefly) 
that  he  had  obtained  a  judgment  in  a  justice's  court  against  the 
Eureka  Electric  Company,  a  corporation,  for  two  hundred  and 
thirty-three  dollars  and  fifty  cents ;  that  he  had  taken  out  an  execu- 
tion upon  said  judgment,  which  had  been  returned  nulla  bona; 
that  upon  an  examination  of  the  secretary  of  said  company  he 
discovered  that  it  was  the  owner  of  two  certain  United  States 
letters  patent,  and  the  inventions  covered  thereby;  that  thereupon 
he  procured  an  alias  execution,  which  he  delivered  to  the  sheriff 
with  instructions  "to  levy  upon,  advertise,  and  sell  all  the  right, 
title  and  interest  of  said  defendant,  the  Eureka.  Electric  Company, 


'"Real  fixtures,  articles  so  annexed  to  the  freehold  as  to  pass  as  a  part 
thereof,  are  not  subject  to  levy  as  personalty.  The  difficulty  lies  in  deciding 
what  is  such  a  fixture,  and  can  only  be  determined  by  reference  to  the  sub- 
stantive law  of  fixtures.  Compare  Goddard  v.  Chase,  7  Mass.  432  (1811); 
Voorhis  v.  Freeman,  2  Watts  &  S.  (Pa.)  116,  37  Am.  Dec.  490  (1841); 
IVinslow  v.  Merchants  InsT'Co.,  45  (4  TVletc.)  Mass.  306,  38  Am.  Dec.  368 
(1842)  ;  Rice  V.  Adams,  4  Harr.  (Del.)  332  (1S45)  ;  Harlan  v.  HarlaHj^lS  Pa. 
St.  507,  53  Am.  Dec.  612  (1850)  ;  Titus  v.  Mabce,  2^111.' 2S7  T1861)  ;  Titus  v. 
'Gmlieimer,  27  111.  462  (1861);  Strickland  v.  Parker,  54  Maine  263  (1866); 
Latham  V.  Blakely,  70  N.  Car.  368  ( 1874)  ;  Keve  v.  Paxton,  26  N.  J.  Eq.  107 
(1875)  ;  Newhall  &  Stebhins  v.  Kinney,  56  Vt.  591  (1884)  ;  Hackett  v.  Ams- 
den,  57  Vt.  432  (1885)  ;  McNally  v.  Connolly,  70  Cal.  3,  il  Pac.  320  (1886)  ; 
Willis  v.  Morris,  66  Tex.  628,  I  S.  W.  799,  59  Am.  Rep.  634  (1886)  ;  Hopewell 
Mills  V.  Taunton  Sav.  Bank,  150  Mass.  519,  23  N.  E.  327,  6  L.  R.  A.  249,  15 
Am.  St.  235  ( 1S89)  ;  Friedlander  v.  Ryder,  30  Nebr.  783,  47  N.  W.  B>z,  9  L.  R. 
A.  700  (1890);  Svoitzer  v.  Allen,  11  Alont.  160,  27  Pac.  408  (1891),  with 
Sturgis  v.  Warren,  11  Vt.  433  (1839)  ;  Teaff  v.  Hewitt,  1  Ohio  St.  511,  59  Am. 
Dec.  634  (1S33);  Hutchman's  Appeal,  27  Fa..  St.  209  (1856):  Murdoch  v. 
Gifford,  18  N.  Y.  28  (1858)  ;  Vaughcn  v.  Haldeman,  33  Pa.  St.  522,  75  Am. 
Dec.  622  (1859)  ;  Johnson  y.^reTiajTy,  43^Ta.  SE^o87  82  Am.  Dec.  568  (1862). 

"The  arguments  of  counieTare  omitted.  ~ 


66S  r.xF.cuTioN 

in  and  to  ?nid  letters  patent,  and  the  iincntions  covered  and  pro- 
tected thereby";  and  that  the  said  sheriff  refused  to  advertise  and 
sell  said  rights,  etc.,  of  said  company  to  said  patent  rights.  Where- 
fore, he  prayed  for  a  writ  of  mandamus  requiring  the  sheriff  "to 
advertise  and  sell  all  the  right,  title  and  interest"  of  said  company 
in  and  to  said  patent  rights.  A  general  demurrer  to  the  petition  was 
sustained  by  the  sui'icrior  court,  and  judgment  was  entered  for  the 
respondent.   From  this  judgment  the  petitioner  appealed. 

The  demurrer  was  properly  sustained.  There  is  no  method  by 
which  tlie  sheriff  could  levy  upon  said  property.  It  was  neither 
"personal  property,  capable  of  manual  delivery,"  which,  under  sub- 
division 3  of  section  542  of  the  Code  of  Civil  Procedure,  must  be 
attached  by  taking  it  into  custody,  nor  does  it  come  under  the  cate- 
gory of  "debts  and  credits,  and  other  personal  property  not  capable 
of  manual  delivery,"  which  must  be  attached  by  leaving  notice  with 
a  third  person  owing  such  debts  or  having  such  credits  or  personal 
property  in  his  possession.  A  patent  right  is  a  thing  created  entirely 
by  federal  legislation.  It  is  a  personal  favor  or  monopoly  granted 
to  a  particular  person  by  the  United  States  Goverjiment.  It  could 
not  be  transferred  to  another  person  at  all,  if  the  government  had 
provided  no  method  of  transferring  it ;  but  the  government  has 
provided  that  it  may  be  transferred  by  assignment,  and  that  is  the 
only  method  by  which  it  can  be  transferred.  And  if  a  creditor  of 
the  patentee  can  have  the  patent  right  subjected  to  the  satisfaction 
of  his  judgment  at  all,  it  can  be  done  only  by  a  court  of  equity, 
acting  in  personam  and  compelling  the  patentee  to  make  an  assign- 
ment. It  can  not  be  advertised  and  sold  under  a  common  execution ; 
as  before  said,  there  is  no  way  in  which  it  can  be  levied  upon ;  and 
the  mere  advertising  and  selling  of  it  upon  notice  could  convey 
nothing  to  the  purchaser.  Carver  v.  Peck,  131  Mass.  291,  and  cases 
there  cited ;  Pacific  Bank  v.  Robinson,  57  Cal.  520;  40  Am.  Rep.  120. 
In  Carver  v.  Peck,  supra,  the  court  says :  "The  incorporeal  and  in- 
tangible right  of  an  inventor  or  an  author  in  a  patent  or  a  copyright 
can  not  be  taken  on  execution  at  law."  In  Pacific  Bank  v.  Robinson, 
supra,  the  court  says:  "But  a  patent  right  is  not  tangible  property. 
It  is  an  incorporeal  thing,  subsisting  in  grant  from  the  Government 
of  the  United  States.  Yet  it  is  subjected  to  some  of  the  legal  inci- 
dents of  ov/nership  of  tangible  property,  such  as  succession  and 
transfer;  but  as  a  creation  of  legislation  it  is  transferable  only 
according  to  the  provisions  of  the  statutes  which  created  it,  and  the 
only  question  is,  has  a  court  of  equity  power  to  compel  its  assign- 
ment and  sale  for  the  benefit  of  judgment  creditors?" 

The  judgment  appealed  from  is  affirmed.^* 


"Accord:  Cooper  v.  Gitnn,  4  B.  Mon.  (Ky.)  594  (1844);  Stephens  v. 
Cady,  14  How.  (U.  S.)  528,  14  L.  ed.  528  (1852)  ;  Stevfns  v.  Gladding,  17 
How.  (U.  S.)  447,  15  L.  ed.  155  (1854)  ;  Banker  v.  Caldwell,  3  Minn.  (Gil.  46) 
94  (1859)  ;  Carver  v.  Peck,  131  Marss.  291  (1881)  ;  Harrin^LoiLJl^  Cmnbrid_ge, 
jitJ^L^jJCas^-tEaJ  456  (1884);  Newton  y.  Bjicks.  72  Pa..^SL J?77  (i8g6)  ; 
Ball  V.  Coker,  168  Fed.  304  (1909).  In  Fennsylvania  a  patent  right  own«d  by^ 
an  insolvent  corporation  may  be  sold  under  the  special  fieri  facias  Act  of  \ 


DENTON    v.    LIVINGSTON  669 

DENTON  V.  LIVINGSTON 

Supreme  Court  of  New  York,  1812 

9  Johns.  (iV.  Y.)  96 

Assumpsit  by  the  plaintiff  against  the  defendant  to  recover 
money  alleged  to  have  been  collected  and  received  upon  a  u^rit  of 
venditioni  exponas,  issued  out  of  the  Supreme  Court  and  directed 
to  tlie  defendant  as  sheriff  of  the  county  of  Columbia  at  the  suit  of 
the  plaintiffs,  against  the  goods  of  one  Samuel  Edmonds. 

The  plaintiffs  proved  that  the  amount  of  the  sales  was  sufficient 
to  satisfy  their  execution. 

The  defendant  proved  that  among  the  goods  and  chattels  sold 
■was  a  share  in  the  Bank  af  Columbia  which  sold  for  fifty  dollars, 
and  three  shares  in  the  Hudson  Library,  which  sold  for  nine  dol- 
lars. The  defendant  contended  that  the  shares  were  not  liable  to 
be  sold  on  execution,  and  that  the  defendant  was  not  liable  for  them, 
Ashley,  the  purchaser,  having  refused  to  pay  for  them. 

The  judge  charged  the  jury  that  the  plaintiffs  were  not  entitled 
to  recover  for  the  shares  and  that  the  jury  must  find  for  the  plain- 
tiffs after  deducting  these,  and  other,  items.  The  jury  accordingly 
found  a  verdict  for  the  plaintiffs.^^ 

Kent,  C.  J. :  The  bank  stock  and  library  shares  were  levied 
on  by  mistake,  for  these  were  mere  choses  in  action,  and  not  the 
subject  of  a  le\y  and  sale  by  fieri  facias  any  more  than  bonds  and 
notes ;  and  such  things  can  not  be  taken  in  execution.  Francis  v. 
Nash,  2  Geo.  II  K.  B.  cited  in  Com.  Dig.  tit.  Execution,  ch.  4.^° 

But,  on  other  grounds,  rule  granted  for  new  trial. 

April  7,  1870,  P.  L.  58.  Erie  Wringer  Mfg.  Co.  V.  National  Wringer  Co.,  63 
Fed.  248  (1894);  £/affff  v    Famsmorth,  12  W.  N^Cas.JPa.)  500  (1882). 

A  patent  right  or  copyright  althoiTgh  ribt^iibJecrto~executioh  at  law  may- 
be subjected  by  a  court  of  chancery  to  the  payment  of  a  judgment  debt  of 
the  patentee.  Agcr  v.  Murray,  105  U.  S.  126,  26  L.  ed.  942  (1881)  ;  Gordon 
V.  Anthony,  16  Blatch.  (U.  S.)  234,  Fed.  Cas.  No.  5605  (1897)  ;  Gillett  v. 
Bate,  86  N.  Y.  87,  10  Abb.  N.  Cas.  88  (1881)  ;  Gorrell  v.  Dickson,  26  Fed.  454 
(1886)  ;  Pennsvlvania^^ct  of  Ma^_Q^_i889^ _P.  L.  172,  P.  &  L.  Dig.  (2d  ed.) 
1361 ;  Doud  &  Miller  v.  Bonta  Plate  Glass  Co.,  28JPitts.  L.  J. JK_S.)  358 
(1898).  And,  in  New  York,  also^by~proceedihgs  suppTementary'to  execution. 
Barnes  v.  Morgan,  3  Hun  (N.  Y.)  703  (1875). 

In  Brooks  v.  Cassebeer,  157  App.  Div.  (N.  Y.)  683,  142  N.  Y.  S.  781 
(1913),  it  is  held  that  an  execution  will  not  lie  against  voluntary  payments 
by  husband  to  wife  after  separation. 

°^The  statement  of  facts  is  paraphrased  and  only  so  much  of  the  case  as 
relates  to  the  shares  of  stock  printed. 

^"At  common  law  shares  of  stock  in  a  corporation  were  not  subject  to 
execution.  Cooper  v.  Dismal  Szvamp  Canal  Co.,  2  Murphy  (N.  Car.)  195 
(1812);  Williamson  v.  Smoot,  7  Mart.  (O.  S.)  (La.)  31,  12  Am.  Dec.  494 
(1819)  ;  Nashville  Bank  v.  Ragsdale,  Peck  (Tenn.)  296  (1823)  ;^  Sjaymaker 
y.  Bank  of  Gettysburg.  10  Pa.  St.  -^7;^  (1840)  at  p.  375;  Foster  \.  t" otter, 
2,7  JWlo.  525  ( 1866)  ;  Van  Norman  v.  Jackson,  45  Mich.  204,  7  N.  W.  796 
(1881)  ;  Barnard  v.  Life  Jns.  Co.,  4  Mackey  (15  D.  C.)  63  (1885)  ;  Rhea  v. 
Powell,  24  111.  App.  77  (1887)  ;  In  re  Leavesley,  L.  R.  (1891),  2  Ch.  Div.  I  at 
p.  7;  Fowler  v.  Dickson,  i  Boyce  (Del.)    113,  74  Atl.  601   (1909)   at  p.  122. 


O/O 


EXECUTION 


GUE  V.  THE  TIDE  WATER  CANAL  CO. 

Supreme  Court  of  the  United  States,  i860 

6s  U.  S.  25/' 

Taney,  C.  J. :  It  appears  from  the  record  in  this  case  that  a 
judgment  was  obtained  by  Robert  Gtie,  the  appellant,  against  the 
Tide  Water  Canal  Company,  in  the  Circuit  Court  of  the  United 
States  for  the  District  of  Maryland,  upon  which  he  issued  a  fieri 
facias,  and  the  marshal  seized  and  advertised  for  sale  a  house  and 
lot,  sundry  canal  locks,  a  wharf,  and  sundry  other  lots ;  all  of  which 
property,  it  is  admitted,  belonged  to  the  canal  company  in  fee. 

The  canal  company  thereupon  filed  their  bill  in  the  circuit  court, 
praying  an  injunction  to  prohibit  the  sale  of  this  property  under 
the  fieri  facias.  The  injunction  was  granted,  and  afterward,  on  final 
hearing,  made  perpetual.  And  from  this  decree  the  present  appeal 
was  taken. 

In  most  jurisdictions  the  common-law  rule  has  been  changed  by  statute,  but, 
where  a  levy  upon  and  sale  of  stock  is  authorized  by  law,  the  provisions  of 
the  statute  must  be  substantially  observed  or  the  sale  will  be  treated  as  void. 
Hoxve  V.  Starkweather,  17  Mass.  240  (1821)  ;  Princeton  Bank  v.  Crozcr, 
22  N.  J.  L.  383,  53  Am.  Dec.  254  (1850)  ;  Blair  v.  Compton,  2)i  Mich.  414 
(1876);  Voorhis  v.  Terhnne,  50  N.  J.  L.  147,  13  Atl.  391,  7  Am.  St.  781 
(1887) ;  Feige  v.  Burt,  118  Mich.  243,  yy  N.  W.  928,  74  Am.  St.  390  (1898). 
The  legislation  upon  this  subject  in  the  different  states  varies  greatly.  See 
Cook  on  Stock  and  Stockholders  (3d  ed.),  §  483;  Cal.  Code  Civ.  Pro.,  §  688; 
N.  J.  Comp.  Stat.  (1910),  p.  2244;  Mass.  Rev.  L.  (1902),  ch.  177,  §§46-51  ;  Peo- 
ple v.  Goss  &  P.  Mfg.  Co.,  99  111.  355  (1881)  ;  State  v.  First  Nat.  Bank,  89  Ind. 
302  (1883)  ;  Nashville  Trust  Co.  v.  Weaver,  102  Tcnn.  66,  50  S.  W.  763  (1808). 
In  New  York  the  stock  of  a  debtor  may  be  reached  by  attachment,  Code  Civ. 
Pro.,  §  647;  Plympton  V.  Bigclow,  11  Abb.  N.  Cas.  (N.  Y.)  180,  63  How.  Pr. 
(N.  Y.)  484  (1882)  ;  O'Brien  v.  Mechanics  &c.  Ins.  Co.,  56  N.  Y.  52,  15  Abb. 
Pr.  (U.  S.)  222,  46  How.  Pr.  (U.  S.)  429  (1874).  InPcnnsxkania,_  execu- 
tion against  the  stock  of  a  corporation  held  by  a  defendant  may  be,  either 
by  fieri  facias  under  the  Act  of  JMarch  29,  1819,  7  Sm.  L.  217,  §  2,  or  by 
attachment  execution  under  §  34  of  the  act  of  June  16,  1836,  P.  L.  755,  P.  &  L. 
Dig.  (2d  ed.)  Ml"? ;  Commonwealth  v.  Watmough,  6  Wliart.  (Pa.)  117  (1840)  ; 
Lex  V.  Potter-Zj  i6_Pa.  St  295  (i  8577  \lVcaver^v^lTunting3bn  &  B.  T  M.  R. 
&c  Co^  50  Pa.  Str3iTTi865).  Shares~oI  national  Fank  stock  may  be  sold, 
5j7ji££L!E£iflIc^-i65l^-  St.  184,  30  Atl.  746  (1895)  ;  Oldacre  v.  Butler,  116 

Ala.  652,  23  So.  3  (iSgTir     ,  ^  ,  .      ,      j      •  -i       r  .1 

The  situs  of  stock  for  the  purpose  of  attachment  is  the  domicile  ot  the 
corporation  issuing  the  shares.  Christmas  v.  Biddle,i?>  Pa.  St.  223.(1850); 
Plimpton  V.  Bigeloiv,  93  N.  Y.  592,~4TTv.  Pro7i89(iF83)  ;  Jellemck  v.  Huron 
Copper  Min.  Co.,  177  U.  S.  i,  44  L-  ed.  647  (1899)  ;  Daniel  v.  Gold  Hill  Min. 
Co..  28  Wash.  411,  68  Pac.  884  (1902);  Gundry  v.  Kcakirt,  173  Fed.  167 
(1909),  see  Young  v.  South  Tredegar  iron  Co.,  85  Tenn.  189,  2  S.  W.  202, 
4  Am.  St.  752  (1886)  ;  Dean  R.  Tel.  Co.  v.  Howell,  162  Mo.  App.  ico,  144 

S.  W.  135  (1911).  ,„,..,  „  J    t,         1         r 

In  England  by  the  statute  of  l  &  2  \  ict.,  ch.  no,  s  14  and  the  rules  of 
the  Supreme  Court,  Order  XLVI,  rules  I  to  11,  if  a  person  against  whom  a 
judgment  has  been  entered  holds  government  stock,  or  stock  or  shares  in  any 
public  company  in  England,  the  court  may,  on  application  of  the  judgment 
creditor,  order  such  stock  to  stand  charged  with  the  payment  of  the  amount 
due.  In  re  Hutchinson,  L.  R.  16  Q.  B.  Div.  515  (1885);  In  re  Leavesley, 
L  R.  (1891)  2  Ch.  Div.  I. 

''The  arguments  of  counsel  are  omitted. 


GUE   V.    TIDE   WATER    CANAL    CO.  67I 

The  Tide  Water  Canal  is  a  public  improvement  situated  in  the 
State  of  Maryland,  and  constructed  and  owned  by  a  joint  stock 
company  chartered  by  the  State  of  Maryland  for  that  purpose.  The 
canal  extends  from  Havre  de  Grace,  in  Maryland,  to  the  Pennsyl- 
vania line ;  and  it  is  admitted  that  the  property  levied  on  is  necessary 
for  the  uses  and  working  of  the  canal. 

Upon  the  matters  alleged  in  the  bill  and  answer  several  ques- 
tions of  much  interest  and  importance  have  been  raised  by  the 
respective  parties,  and  discussed  in  the  argument  here.  But  we  do 
not  think  it  necessary  to  decide  them,  nor  to  refer  to  them  partic- 
ularly, because,  if  it  should  be  held  that  this  property  is  liable  to  be 
sold  by  a  judicial  proceeding  for  the  payn;ient  of  this  debt,  yet  it 
would  be  against  equity  and  unjust  to  the  other  creditors  of  the 
corporation,  and  to  the  corporators  who  own  the  stock,  to  suffer 
the  property  levied  on  to  be  sold  under  this  fieri  facias  and  conse- 
quently the  circuit  court  was  right  in  granting  the  injunction. 

The  Tide  Water  Canal  is  a  great  thoroughfare  of  trade,  through 
which  a  large  portion  of  the  products  ot  the  vast  regions  of  country 
bordering  on  the  Susquehanna  river  usually  passes,  in  order  to 
reach  tide  water  and  a  market.  The  whole  value  of  it  to  the  stock- 
holders consists  in  a  franchise  of  taking  toll  on  boats  passing  through 
it,  according  to  the  rates  granted  and  prescribed  in  the  act  of  assem- 
bly which  created  the  corporation.  The  property  seized  by  the  mar- 
shall  is  of  itself  of  scarcely  any  value,  apart  from  the  franchise  of 
taking  toll,  with  which  it  connected  in  the  hands  of  the  company,  and 
if  sold  under  this  fieri  facias  without  the  franchise,  would  bring 
scarcely  anything;  but  would  yet,  as  it  is  essential  to  the  working 
of  the  canal,  render  the  property  of  the  company  in  the  franchise, 
now  so  valuable  and  productive,  utterly  valueless. 

Now  it  is  very  clear  that  the  franchise  or  right  to  take  toll  on 
boats  going  through  the  canal  would  not  pass  to  the  purchaser 
under  this  execution.  The  franchise  being  an  incorporeal  heredita- 
ment, can  not,  upon  the  settled  principles  of  the  common  law,  be 
seized  under  a  fieri  facias.  If  it  can  be  done  in  any  of  the  states, 
it  must  be  under  a  statutory  provision  of  the  state;  and  there  is 
no  statute  of  Maryland  changing  the  common  law  in  this  respect. 
Indeed,  the  marshal's  return  and  the  agreement  of  the  parties  shows 
it  was  not  seized  and  consequently,  if  the  sale  had  taken  place,  the 
result  would  have  been  to  destroy  utterly  the  value  of  the  property 
owned  by  the  company,  while  the  creditor  himself,  would  most 
probably,  realize  scarcely  anything  from  these  useless  canal  locks, 
and  lots  adjoining  them. 

The  record  and  proceedings  before  us  show  that  there  were 
other  creditors  of  the  corporation  to  a  large  amount,  some  of  whom 
loaned  money  to  carry  on  the  enterprise.  And  it  would  be  against 
the  principles  of  equity  to  allow  a  single  creditor  to  destroy  a  fund 
to  which  other  creditors  had  a  right  to  look  for  payment,  and 
equally  against  the  principles  of  equity  to  permit  him  to  destroy  the 
value  of  the  property  of  the  stockholders,  by  dissevering  from  the 
franchise  property  which  was  essential  to  its  useful  existence. 


672  EXECUTION 

In  tills  view  of  the  subject,  the  court  do  not  deem  it  proper  to 
express  any  opinion  as  to  the  right  of  this  creditor,  in  some  other 
form  of  judicial  proceeding,  to  compel  the  sale  of  the  whole  prop- 
erty of  the  corporation,  including  the  franchise,  for  the  payment  of 
his  debt.  Nor  do  wc  mean  to  express  any  opinion  as  to  the  validity 
or  operation  of  the  deeds  of  trust  and  acts  of  Assembly  of  the 
Slate  of  Maryland,  referred  to  in  the  proceedings.  If  the  appellant 
has  a  right  to  enforce  the  sale  of  the  whole  property,  including  the 
franchise,  his  remedy  is  in  a  court  of  chancery,  where  the  rights  and 
priorities  of  all  the  creditors  may  be  considered  and  protected,  and 
the  property  of  the  corporation  disposed  of  to  the  best  advantage, 
for  tlie  benefit  of  all  concerned.  A  court  of  common  law,  from  the 
nature  of  its  jurisdiction  and  modes  of  proceeding,  is  incapable  of 
accomplishing  this  object;  and  the  circuit  court  was  right  in  grant- 
ing tlie  injunction,  and  its  decree  is  therefore  affirmed.^^ 

*^At  common  law  a  public  franchise  can  not  be  taken  and  sold  upon  fieri 
facias.  AiniuQiiJ  v^New  Alexandria  &  P.  Turnpike  Road  Co.,  i.^  Serg.  &_R. 
(Pa.)  210,  15  Am.  Dec.  S93  (^^STJ^^^ymoitr  \.  Mi  fjord  &  C.  Tpk.  Co~  10 
Ohio  476  (1841)  ;  Susquehanna  Canal  Co^.  Bonhani^g  Watts&S,_(PA.)  27, 
42  Am.  Dec.  315  ^845)  ;  .b/a/^  v.'  Rives,  5  Tred^'^CI?:  Xar.)~~297  (1844); 
Winchester  &  L.  Tpk.  Co.  v.  Vimont,  5  B.  Men.  (Ky.)  I  (1S14)  ;  Thomas  v. 
Armstrong,  7  Cal  286  (1857)  ;  James  v.  Pontiac  P.  R.  Co.,  8  Mich.  91  (1860)  ; 
Richardson  V.  Sibley,  03  Mass.  65  (il  Allen),  By  Am.  Dec.  700  (1865); 
Steii-art  V.  Jones,  40  }vIo.  140  (1867);  Foster  &  Co.  v.  Fozi'ler  &  Co..  60 
Fa.  St.  27  (1S68);  Youncman  \.  Elmira  K.  Co^,  65;  Pa.  St.  278,(1870); 
Hatcher  v.  Toledo,  Wabash  &~W.  R.  Co.,  62  nr477~(i872)  ;  Randolph 
V.  Lamed,  27  N.  J.  Eq.  557  (1876)  ;  Palestine  City  v.  Barnes,  50  Tex. 
538  (187S)  ;  Ba.rter  V.  Nashville  &  H.  Turnpike  Co.,  10  Lea.  (Tenn.)  48S 
(1882)  ;  East  Ala.  R.  Co.  v.  Doe,  115  U.  S.  340,  5  Sup.  Ct.  869,  29  L.  ed. 
136  (18S4);  Louisville  &c.  R.  Co.  v.  Boney,  117  Ind.  501,  20  N.  E.  432, 
3  L.  R.  A.  435  (18S8)  ;  Brady  v.  Johnson,  75  Md.  445,  26  Atl.  49,  20  L.  R.  A. 
7}.7  (1S92).  But  in  most  jurisdictions  statutes  have  provided  a  method  by 
v.hich  franchises  ma}'  be  subjected  to  execution  which  must  be  strictly  fol- 
lowed in  order  to  make  a  valid  sale.  California  Code  Civ.  Pro.,  §  388, 
Gregory  v.  Blanchard,  98  Cal.  311,  33  Pac.  199  (1893)  ;  2  Consolidated  Laws 
N.  Y.,  "Corporations,"  §§  70-6;  Penna.  Act  of  April  7  1870,  P.  L.  58,  §  i,  P. 
&  L.  Dig.  (2d  ed.)  3517;  Maiisel  v.  .l)'czv  York  (yc.  K.  Co  ,  ii\  Pa.  St.  606, 
ZZ  Atl.  2)77  (1895)  ;  Smith  y7Z4ltoj)na  &  P.R^(Jd.,iS2  Pa.  St.,,i39,  37  Atl.  930 
(1807);  Sinyiwns  v.  ly arUimpTon.  i7o'^fass7~2o;^.  49  N.  E.  114  (1897); 
Williams  V.  East  Wdreham  '&'c.lT.  Co.,  171  Alass.  61,  50  N.  E.  646  (1898)  ; 
Keystone  Bank  V.  Donnelly,  196  Fed.  832  (1912).  As  laid  down  in  the  prin- 
cipal case,  property  indispensably  necessary  for  the  exercise  of  a  public 
or  quasi  public  franchise  is  not  subject  to  execution  unless  made  so  by 
statute.  rj^r^^^2iS-  P'^'-'^'iT^i,  F.  W.  &c.  R.  Co.,  3-Pllila^CEa.)  I73  (1858); 
Foster  &  Co.  v.  Foivler  &  Co..  60  Pa.  bt.  ^7^  (1868)  ;  Hackley  v.  Mack,  60 
Mich.  591,  27  N.  W.  871  (1886)  ;  Northern  Pacific  R.  Co.  v.  Shimmel,  6  Mont. 
161,  9  Pac.  889  (18S6),  office  safe  not  subject  to  execution;  Sherman  County 
Irrigation  Co.  v.  Drake,  65  Xcbr.  699,  91  N.  \V.  512  (1902).  Contra:  Boston 
&  C.  &  M.  R.  V.  Cilmore,  37  N.  H.  410,  72  Am.  Dec.  336  (1858) ;  Lathrop  v. 
Middlcton,  23  Cal.  257,  83  Am.  Dec.  112  (1863)  ;  Risdon  Iron  &  Locomotive 
Works  v.  Citizens'  Traction  Co.,  122  Cal.  94,  54  Pac.  529,  6S  Am.  St.  25 
(189S)  ;  Tulare  I.  Dist.  v.  Collins,  154  Cal.  446,  97  Pac.  1124  (1908).  So,  w^here 
the  franchise  is  no  longer  exercised  the  property  becomes  subject  to  execu- 
tion. Benedict  v.  Heineberg,  43  Yt.  231  (1870)  ;  Gardner  v.  Mobile  &  N.  W. 
R.  Co.,  102  Ala.  635,  15  So.  271,  48  Am.  St.  84  (1893). 

The  property  of  strictly  private  corporations  is  liable  to  be  taken  on 
execution  precisely  as  the  property  of  an  individual  debtor.  Overton  Bridge 
Co.  V.  Means,  33  Nebr.  857,  51  N.  W.  240,  29  Am.  St.  514  (1892)  ;  Reynolds 


LYOX    V.    CITY    OF    ELIZABETH  673 

LYON  V.  CITY  OF  ELIZABETH 

Supreme  Court  of  New  Jersey,  i88i 

43  A^  /.  L.  158 

Van  Syckel,  J. :  The  plaintifif  having  recovered  a  judgment 
against  the  city  of  Elizabeth  in  this  court,  caused  a  M^rit  of  fieri 
facias  to  be  issued  thereupon,  by  virtue  of  which  the  sheriff  of 
Union  county  has  levied  upon  eight  several  lots  of  land  in  said 
city,  and  advertised  the  same  for  sale  to  satisfy  said  judgment. 

Lots  numbers  i,  2,  3,  4  and  7  were  purchased  by  the  city  at  a 
sale  made  under  the  authority  of  the  city  charter  for  unpaid  taxes 
assessed  thereon.  Lots  numbers  5  and  6  were  conveyed  to  the  city 
for  the  purpose  of  erecting  school  houses  thereon  for  public  schools, 
but  no  school  house  has,  as  yet,  been  erected  upon  either  lot.  Lot 
number  8,  upon  which  there  is  a  dwelling  house,  is  a  lot  lying  within 
the  exterior  lines  of  a  public  street  recently  laid  out  by  the  city.  The 
lot  has  been  condemned  for  the  purposes  of  the  highway,  but  the 
house  has  not  yet  been  removed,  and  is  rented  to  a  tenant. 

On  behalf  of  the  city  application  is  made  to  set  aside  this  levy. 
In  England  an  action  would  not  lie  against  a  quasi  political 
corporation  for  breach  of  duty  except  by  force  of  positive  law,  as 
in  the  case  of  neglect  to  make  hue  and  cry,  for  which  an  action 
was  given  against  the  hundred  by  the  statute  of  Winton.  13  Edw.  I. 
Upon  the  rendition  of  judgment  the  remedy  for  enforcing  its  pav- 
ment  was  not  by  execution  against  the  property  of  the  corporation, 
but  by  levying  the  damages  out  of  the  property  of  any  one  or  more 
of  the  persons  within  the  limits  corporate.'^ 

Outside  of  the  New  England  states  it  has  never  been  held  that 
the  creditors  of  a  municipal  corporation  can  resort  to  the  individual 
property  of  the  inhabitants  to  satisfy  a  judgment  obtained  against 
the  corporate  body.  The  practical  construction  of  the  courts  in 
New  England  has  been  that  in  an  action  by  or  against  a  municipal 
corporation,  every  member  of  it  is  a  party  to  the  suit,  and  upon  that 
ground  the  practice  there  held  has  been  maintained.  Chase  v.  Merri- 
mack Bank,  19  Pick.  (Mass.)  564;  Beardsley  v.  Smith,  16  Conn. 
368.^^ 

V,  R^ymM/ Lumber  Co..  160  Pa.  St_626,:j2_Atl.  537  (1895)  ;  East  Side  Bank 
\.  Columbus  Tannin n  Co.,  lyoTa^t  i.  32,Atl.  539  (1895)  ;  Arnold  \.  IVeimer, 
40  Nebr.  216,  58  N.  W.  709  (1894)  ;  lones  v.  Bank,  10  Colo.  464,  17  Pac.  272 
(1887)  ;  Poor  V.  Chapin,  97  Maine  295,  54  Atl.  753  (1903). 

^"Russell  V.  The  Men  Dwelling  in  the  County  of  Devon,  2  T.  R.  667 
(1788);  Cozsi'lcy  V.  Newmarket  Local  Board,  L.  R.  (1892)  App.  Cas.  345; 
Maguire  v.  Liverpool,  L.  R.  (1905),  i  K.  B.  767;  IVeightman  v.  Washington, 
I  Black  (U.  S.)  39,  17  L.  ed.  52  (1861)  ;  Brabham  v.  Hinds,  54  Miss.  363,  28 
Am.  Rep.  352  (1877)  ;  Kincaid  v.  Hardin  Co.,  S3  Iowa  430,  5  N.  W.  589,  36 
Am.  Rep.  236  (1S80). 

""By  usage,  peculiar  to  the  New  England  States,  the  property  of  an 
inhabitant  may  be  taken  on  execution  upon  a  judgment  against  a  town. 
Brewer  v.  New  Gloucester,  14  Mass.  216  (1817)  ;  Fernald  v.  Lewis,  6  Maine 
264   (1830);  Gaskill  V.  Dudley,  47  Mass.  546   (6  Mete),  39  Am.  Dec.  750 

43 — Civ.  Prgc. 


f)74  EXECUTION 

In  Rcrs  v.  City  of  jratcrtozcn,  19  Wall.  (U.  S.)  107,  this  prac- 
tice was  pronounced  to  be  indefensible,  and  contrary  to  tbe  funda- 
mental principle  embodied  in  the  Constitution  of  the  United  States, 
that  no  man  shall  be  deprived  of  his  property  without  due  process 
of  law.  In  suits  against  municipal  corporations  the  individual  citizen 
is  not  a  party  to  the  proccctling,  he  is  not  served  with  process  and 
has  no  opportunity  of  being  heard  in  his  defense. 

It  seems  to  be  clear,  also,  that  a  fieri  facias  against  the  public 
property  of  a  municipal  corporation  is  unknown  to  the  common  law. 
The  reason  why,  in  the  absence  of  express  legislative  sanction,  tliese 
political  divisions  of  tlie  state  can  not  be  subjected  to  such  process, 
is  obvious.  Municipal  corporations  are  erected  for  political  pur- 
poses only,  and  are  mere  instrumentalities  through  which  the  legis- 
lature administers  the  civil  policy  of  the  state.  The  legislature 
delegates  to  them  such  measures  of  political  power  as  may  be 
deemed  essential  for  the  efficient  administration  of  their  local  affairs 
and  for  tlie  government  of  the  people  within  the  corporate  limits. 
Their  control  of  property  is  intended  only  for  corporate  purposes, 
and  is  to  be  applied  only  to  promote  the  objects  for  which  they  are 
erected  into  governments.  The  taxing  power  ordinarily  furnishes 
the  only  means  they  possess  for  raising  the  revenue  essential  to 
defray  their  expenses. 

The  municipality  can  not,  in  the  absence  of  express  legislation, 
be  deprived  of  the  means  indispensable  to  the  exercise  of  the  func- 
tions with  which  it  is  charged.  Otherwise  a  judgment  creditor,  by 
force  of  an  execution,  could  destroy  the  corporate  powers  by  with- 
drawing the  resources,  without  which  they  can  not  be  exercised. 
It  would  be  manifestly  contrary  to  the  theory  upon  which  a  part  of 
the  sovereignty  of  the  state  is  delegated  to  local  governments  to 
concede  to  an  individual  the  right  thus  to  arrest  their  operations. 
The  unrestricted  right  in  the  creditor  to  pursue  the  corporation  by 
execution  could,  for  all  practical  purposes,  as  effectually  annul  a 
city  charter  as  its  absolute  repeal.  M onaghan_}L_Qity  of  Philadelphia, 
28  Pa.  St.  207 ;  S chaffer  v.  Cadwallader.  ;^6  Pa.  St  126;  ChJcaoo  v. 
Hasley,  25  111.  595 ;  j3ill.  on  Mun.  Corp.,  sections  446-686;  Common- 
wealthy^  P£rkinSj  4.^  Pa.  St.  400;  Frank  v.  Chosen  Freeholders  of 
FI  lid  son,  10  Vroom  (N.  J.)  347. 

In  a  recent  decision  by  the  Supreme  Court  of  the  United  States, 
Meriwether  v.  Garret,  102  U.  S.  472,  the  immunity  from  execution 


(1843)  ;  Beardsley  v.  Smith,  16  Conn.  368,  41  Am.  Dec.  148  (1844)  ;  Union  v. 
Craziford,  19  Conn.  331  (1848)  ;  Hill  v.  Boston,  122  Mass.  344,  23  Am.  Rep. 
332  (1877),  where  it  is  said  "payment  of  such  a  judgment  has  never  been 
compelled  by  mandamus  against  the  corporation,  as  in  other  parts  of  the 
United  States";  Eames  v.  Savage,  77  Maine  212,  52  Am.  Rep.  751  (1885); 
Bloovtfield  V.  Charter  Oak  Bank,  121  U.  S.  121,  30  L.  ed.  923  (1887).  But 
the  general  rule  is  that,  in  the  absence  of  a  statute,  the  private  property  of  an 
individual  within  the  limits  of  a  municipality  can  only  be  subjected  to  the 
debts  of  the  municipality  by  taxation.  McriwctJier  v.  Garrett,  102  U.  S.  472, 
26  L.  ed.  197  (1880)  ;  Emcrick  v.  Gilinan,  ID  Cal.  404,  70  Am.  Dec.  742  C1858)  ; 
North  Lebanon  \  Arnold.  a7  Pa.  St.  488  ("1864)  ;  Miller  V.  McWilliams,  50 
Ala.  427,  20  Am.  Rep.  297  (1874)  ;  I-Hh  v.  Taylor,  88  N.  Car.  489  (1883). 


LYON    V.    CITY    OF   ELIZABETH  675 

of  property  held  by  a  city  for  public  uses  was  very  broadly  recog- 
nized.  In  Emeric  v.  Gilman,  lo  Cal.  404,  Justitce  Field  says : 

"Whoever  becomes  a  creditor  of  a  county  must  look  to  its 
revenues  alone  for  payment.  The  statute  authorizes  a  suit  against 
the  county  by  which  the  demand  may  pass  into  judgment,  but  it  has 
given  no  remedy  by  execution,  and  when  the  judgment  is  rendered 
the  plaintiff  must  resort  to  mandamus." 

Mr.  Freeman,  in  his  work  on  Executions,  section  22,  takes  the 
same  view :  "A  judgment  against  a  county  or  municipal  corporation 
is  ordinarily  no  more  than  the  mere  establishment  of  a  valid  claim, 
for  which  it  is  the  duty  of  the  proper  officers  to  provide  means  of 
payment  out  of  the  revenues  of  the  defendant.  It  is  error  to  award 
or  issue  execution  on  such  judgment." 

There  are  cases  which  hold  that  a  political  corporation  is  im- 
pressed with  a  dual  character,  the  one  public,  the  other  private.  In 
the  exercise  of  their  powers,  governmental  and  public,  they  are 
clothed  with  the  immunities  of  sovereignty.  When  they  step  outside 
of  the  domain  where  they  are  engaged  strictly  in  the  exercise  of 
sovereign  powers,  and  make  contracts  in  their  private  capacity,  they 
incur  the  responsibilities  of  individuals  or  private  corporations. 
Lloyd  V.  New  York,  1  Seld.  (N.  Y.)  369;  Clarke  v.  Rochester,  24 
Barb.  (N.  Y.)  466,  482.  Assuming  that  when  they  make  an  agree- 
ment in  their  private  capacity,  the  law  will  afford  every  remedy 
incident  to  the  enforcement  of  ordinary  contracts,  property  acquired 
for,  and  employed  in  tlie  discharge  of  their  sovereign  functions, 
could  not  be  diverted  to  the  satisfaction  of  obligations  resting  upon 
them  in  their  character  of  private  corporations.  Logically,  property 
held  in  their  private  capacity,  could  alone  be  appropriated  to  the 
liquidation  of  such  private  claims,  by  process  of  execution. 

But  it  is  insisted  that  by  force  of  the  first  section  of  the  act 
concerning  judgments  (Rev.,  p.  520),  all  lands  are  liable  to  be  levied 
on  and  sold  by  execution,  whether  the  property  of  individuals  or 
municipal  corporations. 

By  the  common  law,  execution  went  against  lands  or  tenements 
of  the  defendant  at  the  suit  of  the  king  only.  The  plaintiff  could 
have  satisfaction  only  of  goods,  chattels  and  the  present  profits  of 
lands  by  fieri  facias  or  levari  facias,  but  not  the  possession  of  the 
lands  themselves,  in  consequence  of  the  feudal  principles  which 
prohibited  alienation  and  the  encumbering  of  the  fief  with  the  debts 
of  the  owner.  In  England  the  sale  of  lands  by  execution  is  the 
creature  of  statutory  regulation  since  the  restrictions  upon  alienation 
began  to  wear  avv^ay. 

The  act  to  subject  lands  in  this  state  to  sale  by  execution  was 
passed  February  16,  1799  (Pat.  L.  368),  and  was  intended  to  bring 
within  the  reacli  of  creditors,  then  entitled  to  make  their  money  by 
execution,  the  landed  property  of  their  debtors.  There  is  nothing 
in  the  act  which  expressly,  or  by  necessary  intendment,  brings  the 
public  property  of  municipal  corporations  within  its  operation. 
Under  it  creditors  had  no  more  right  to  sell  lands  devoted  to  the 
public  uses  of  the  corporation  than  they  had,  prior  to  its  passage, 


676  EXECUTION 

ti)  sell  furniture  necessary  in  the  use  of  its  pul)lic  offices.  It  would 
be  a  startlint:^  proposition  to  hold  that  a  creditor  could  seize  and 
sell  a  court  house  or  a  jail,  and  that  the  sheriff  could  be  required 
to  put  him  in  possession  of  il.  To  ^'we  the  act  so  wide  a  ranj:^e 
would  be  a  constant  menace  to  the  life  of  the  body  corporate,  and 
so  clearly  contrary  to  public  ]>(jlicy,  that  it  can  not  be  conceived  that 
it  was  intended  to  be  so  ai^plied. 

In  Monaghan  v.  Plnladt'lpJiia,  28  Pa,  St^-.2IQ,  the  court  said, 
"it  was  very  clear  that  none  of  the  property  necessary  for  govern- 
mental purposes  could  be  seized  and  sold,  even  if  the  usual  process 
for  collecting  a  judgment  could  issue  against  such  corporation." 
It  will  be  impossible  for  these  political  bodies  to  dispense  the  impor- 
tant functions  of  government  committed  to  them,  if  they  are,  to  the 
same  extent  as  individuals,  subject  to  the  ordinary  process  of  levy 
and  sale  by  execution. 

The  practice  in  this  state  has  uniformly  been  to  issue  execution 
against  the  municipal  body,  not  to  seize  and  sell  its  public  property, 
but  for  the  purpose  of  laying  a  foundation  for  mandamus  proceed- 
ings. In  aid  of  the  judgment  creditor  legislation  has  been  deemed 
necessary.  Rev.,  p.  391,  S.  9,  repealed  by  Act  of  March  14,  1879 
(Pamph.  L.,  p.  293)  ;  Act  of  March  27,  1878  (Pamph.  L.,  p.  182). 
An  implication  may  arise  from  the  language  of  these  acts  that  a 
public  corporation  may  possess  property  which  shall  be  subject  to 
seizure  under  a  fieri  facias,  but  there  is  nothing  in  their  terms  which 
presumably  enables  a  creditor  to  deprive  it  of  such  property  as  is 
essential  to  the  beneficial  exercise  of  its  granted  powers.  These 
statutory  provisions  should  be  strictly  construed  to  prevent  the 
mischief  which  would  flow  from  the  practice  sought  to  be  enforced 
in  this  case. 

All  the  real  estate  levied  on  in  this  case  is  exempt  from  sale. 
Two  lots  were  conveyed  to  and  are  held  by  the  city  for  school- 
house  purposes.  The  house  on  one  lot  is,  under  the  term.s  of  the 
charter,  to  be  sold  and  the  proceeds  appropriated  to  paying  the  dam- 
ages on  the  street.  It  can  not,  at  the  will  of  the  creditor  be  diverted 
from  the  use  for  which  the  law  has  marked  it.  The  remaining  lots 
v\ere  purchased  by  the  city  for  unpaid  taxes,  and  are  held  as  a 
means  of  enabling  it  to  raise  the  necessary  revenues  for  current 
expenses.  The  lands  are  held  for  public  uses,  for  out  of  them  the 
city  must  realize  the  funds  essential  to  the  discharge  of  its  obliga- 
tions. A  sale  by  execution  would  surely  result  in  a  ruinous  sacrifice 
of  the  property,  and  would  defeat  the  collection  of  taxes,  without 
paying  the  city  debt.  Nothing  could  be  more  hurtful  to  the  city  than 
such  an  interference  with  the  collection  of  its  revenues. 

What  relief  the  court  will  give  the  judgment  creditor  on  man- 
damus proceedings  can  not  now  be  considered. 

The  levy  must  be  set  aside.*^ 

"In  some  states  the  strictly  private  property  of  a  m.iinicipal  corporation 
charged  with  no  public  trusts  may  be  taken  in  execution.  Birmingham  v. 
Rv.mscy  &  Co.,  63  Ala.  352  (1879)  ;  Hart  v.  New  Orleans,  12  Fed.  292  (1882)  ; 
Murf^hree  V.  Mobile,  108  Ala.  663,  18  So.  740  (1895)  ;  School  Dist.  of  ft. 
Smith  V.  Board  of  Imp.,  65  Ark.  343,  46  S.  W.  418  (1898)  ;  Dunham  v.  Angus, 


JONES   V.    JONES  6/7 

JONES   V.   JONES 

High  Court  of  Chancery  of  Maryland,  1827 

I  Bland.  (Md.)  443'* 

Bland,  Ch. :  It  was  a  well  settled  principle  of  the  common  law 
of  England,  that  the  real  estate  of  a  debtor  could  not  be  taken  in 
execution  at  the  suit  of  a  citizen  creditor,  and  sold  for  the  satisfac- 
tion of  the  debt.  This  rule  was  considered  as  a  fair  and  necessary 
result  from  the  nature  of  the  feudal  tenures,  according  to  which 
all  the  lands  of  tliat  country  were  held.  And,  as  the  most  liberal 
species  of  those  tenures  was  expressly  declared  to  be  that  by  which 
all  the  lands  of  Maryland  should  be  held,  it  followed  that  real 
estate  could  be  no  further  subject  to  be  taken  in  execution  here  than 
the  same  kind  of  estate  was  liable  in  England. 

In  the  case  of  the  king,  however,  an  execution  always  issued 
against  the  lands  as  well  as  the  goods  of  a  public  debtor;  because 
the  debtor  was  considered  as  being  not  only  bound  in  person,  but 
as  a  feudatory  who  held  mediately  or  immediately  from  the  king; 
and  therefore,  holding  what  he  had  from  the  king,  he  was  from 
thence  to  satisfy  what  he  owed  to  the  king.  As  a  consequence  of 
this  liability  and  for  tlie  public  benefit,  if  a  judgment  was  obtained 
against  a  public  debtor  by  the  king,  he  thereby  acquired  a  lien  upon 
the  real  estate  of  such  debtor,  which  took  effect  not  merely  from 
the  date  of  tlie  judgment,  but  by  relation  from  the  commencement 
of  the  suit  to  the  exclusion  of  all  subsequent  incumbrances.    In 


145  Cal.  165,  78  Pac.  557  (1904).  Elsewhere  it  is  held  that  the  proper  remedy 
of  the  creditor  is  by  mandamus  to  compel  paj'm.ent  or  the  collection  of  a  tax 
for  that  purpose.  Emcric  V.  Gilman,  ID  Cal.  404,  70  Am.  Dec.  7J.2  (1858); 
Cnm'innmii/'nl.fh  V.  Perkins,  4.'^  Pa.  St^  400jfi862)  ;  Morrison  v.  Hinkson,  87 
ITr~587,  29  Am.  Rep.  77  (1877);  Uarling  v.  Baliimorc,  51  I^id.  I  (1S78)  ; 
Emery  V.  Bnrrcsen,  14  Utah  328,  47  Pac.  91,  2>7  L.  R.  A.  7z^,  60  Am.  St.  898 
(1896).  The  decisions  are  influenced  by  local  statutes.  But  the  authorities 
are  in  accord  that  property  of  a  municipality  owned  or  used  for  public  pur- 
poses is  not  subject  to  sale  on  execution.  Ill  Dillon  Municip.  Corp.  (5th  ed.), 
§  992;  Davenport  v.  Peoria  Marine  &  Fire  Ins.  Co.,  17  Iowa  276  (1864); 
Darlington  v.  New  York,  31  N.  Y.  164,  28  How.  Pr.  (N.  Y.)  352,  88  Am.  Dec. 
248  (1865);  Brinckcrhoff  V.  Board  of  Education,  6  Abb.  Pr.  (N.  S.)  428, 
2  Daly  443,  2>7  How.  Pr.  (N.  Y.)  499  (1869)  ;  Ransom  v.  Boat,  29  Iowa  68, 
4  Am.  Rep.  195  (1870)  ;  Klein  v.  Nezv  Orleans,  99  U.  S.  149,  25  L.  ed.  430 
(1878)  ;  New  Orleans  v.  Morris,  105  U.  S.  600,  26  L.  ed.  1184  (1881)  ;  Low 
V.  Howard  County,  94  Ind.  553  (1883);  The  Protector,  20  Fed.  207  (1884), 
police  boat;  Ellis  v.  Pratt  City,  lii  Ala.  629,  20  So.  649,  33  L.  R.  A.  264,  56 
Am.  St.  76  (1895),  proceeds  of  policy  of  insurance  on  public  hall  and  market 
house;  Board  of  Directors  v.  Bodkin,  108  Tenn.  700  (1902),  money  in  bank 
to  meet  interest  on  levee  bonds ;  Kerr  v.  New  Orleans,  126  Fed.  920,  61  C.  C. 
A.  450  (1903)  ;  Equitable  Loan  &c.  Co.  V.  Edwardsville,  143  Ala.  1S2,  38  So. 
1016,  III  Am.  St.  34  (1904),  stock  of  liquors  in  town  dispensary;  People 
ex  rel.  Post  v.  San  Joaquin  Valley  Agricultural  Assn.,  151  Cal.  797,  91  Pac. 
740  (1907)  ;  School  Town  of  Windfall  v.  Somerville,  181  Ind.  463,  104  N.  E. 
859  (1914)  ;  Morpanfon  Hardware  Co.  v.  Morganton  Graded  Schools,  151 
N.  Car.  507,  66  S.  E.  583  (1Q09).  Compare  Clarissy  v.  Metropolitan  Fire  Dept., 
7  Abb.  Pr.  (N.  S.)  352,  31  N.  Y.  Super.  Ct.  224  (1869). 

"An  extract  only  from  the  opinion  of  the  chancellor  is  printed. 


()-S  EXECUTION 

F.nplnnd  the  king's  debt  is  preferred  in  execution  and  in  tlic  admin- 
istration of  a  deceased's  estate,  to  that  of  a  citizen ;  which  right  of 
preference  was  in  Maryland  extended  to  the  lord  proprietary. 
After  our  revolution  it  was  held  to  have  devolved,  according  to  the 
principles  of  the  common  law,  upon  the  state;  and  it  has  been  ex- 
pressly declared,  that  all  lands  and  tenements  belonging  to  any  pub- 
lic debtor,  after  the  commencement  of  suit  against  him,  shall  be 
liable  to  execution  in  whatever  hands  or  possession  they  may  be 
found.*'^  By  Avhich  legislative  enactment  the  state's  lien,  as  in  Eng- 
land, relates  not  merely  to  the  date  of  the  judgment,  but  to  the* 
commencement  of  the  action.  Whence  it  follows,  tliat  the  liability 
of  the  real  estate  of  a  debtor  to  the  state  to  be  taken  in  execution, 
and  the  lien  of  the  state  incident  to  such  liability,  are  founded  upon 
the  common  law  and  the  acts  of  assembly  passed  in  express  relation 
to  debts  due  to  the  state. 

But  the  general  rule  of  the  common  law  in  regard  to  the  liability 
of  real  estate  to  be  taken  in  execution  as  between  party  and  party, 
was  modified  by  a  statute  passed  in  the  year  1285,**  which  made 
such  estates  liable  to  be  partially  taken  in  execution.  This  statute, 
w^hich  gave  the  writ  of  elegit  enlarged  the  remedy  of  the  creditor 
by  declaring,  tliat,  w-hen  a  debt  was  recovered  or  damages  adjudged, 
it  should  be  in  the  election  of  the  plaintiff  to  have  a  fieri  facias,  or  to 
have  all  the  debtor's  chattels  and  the  one-half  of  his  lands  delivered 
to  him  until  the  debt  was  levied  to  a  reasonable  extent ;  which  gave 
the  election  immediately  that  the  debt  was  recovered ;  and  therefore 
the  whole  land  was  held  to  be  bound  from  the  day  of  the  rendition 
of  the  judgment;  and  those  concerned,  it  was  presumed,  might 
easily  ascertain  from  the  record  by  what  judgments  the  lands  of  the 
debtor  were  thus  bound.  But  as  some  inconvenience  arose,  because, 
according  to  the  common  law,  judgments  took  effect  by  relation  from 
the  first  day  of  the  term,  it  was  in  the  year  1677  declared  by  the 
statute  of  frauds,^^  that  the  day  on  wdiich  judgments  were  rendered 
should  be  entered  upon  the  record;  and  that  purchasers  should  be 
charged  from  such  time  only,  and  not  from  the  first  day  of  the  term 
whereof  the  judgment  was  entered.  This  then  was  the  nature  and 
extent  of  the  judicial  lien,  as  between  party  and  party,  wath  which 
the  real  estate  of  a  debtor  might  become  bound  in  Maryland  as  well 
as  in  England.  And  this  judicial  lien  was  afterward  mainly  fortified 
and  enlarged  by  a  statute  passed  in  the  year  1732,*^  applicable  only 

"Contra:  Evans  v.  Walsh,  41  N.  J.  L.  281,  32  Am.  Rep.  201  (1879). 

**Statute  of  Westminster  II  (13  Edw.  I),  ch.  18,  I  Stat,  of  Realm  81. 
"When  debt  is  recovered  or  knowledged  in  the  King's  Court,  or  damages 
awarded,  it  shall  be  from  henceforth  in  the  election  of  him  that  sucth  for 
such  debt  or  damages,  to  have  a  writ  of  fieri  facias  unto  the  sheriff  for  to 
levy  the  debt  of  the  lands  and  goods ;  or  that  the  sheriff  shall  deliver  to  him 
all  the  chattels  of  the  debtor,  saving  only  his  oxen  and  beasts  of  his  plow, 
and  tlie  one  half  of  his  land,  until  the  debt  be  levied  upon  a  reasonable  price 
or  extent :  And  if  he  be  put  out  of  that  tenement,  he  shall  recover  by  a 
writ  of  novel  disseisin,  and  after  by  writ  of  redisseisin,  if  need  be." 

*^29  Car.  II,  ch.  3,  §§  14  and  15. 

*'Gco.  II,  ch.  7.  For  a  further  account  of  the  act  of  1732  see  Coombs 
V.  Jordan,  3  Bland  (Md.)  284,  22  Am.  Dec.  236  (1831),  at  p.  304.  In  Massa- 
chusetts as  early  as  1696  and  in  Pennsylvania  as  early  as  1700  lands  were,  by 


DALZELL   V.    LYNCH  679 

to  the  then  colonies  of  Great  Britain,  and  received  as  law  in  Mary- 
land, which  subjected  the  whole  of  a  debtor's  real  estate  to  be  taken 
in  execution  and  sold  for  the  payment  of  his  debts. 


DALZELL  V.  LYNCH 

Supreme  Court  of  Pennsylvania,  1842 
4  Watts  and  Scrg.  (Pa.)  255 

Error  to  the  District  Court  of  Allegheny  County. 

This  was  an  action  of  ejectment  by  Francis  Lynch  against 
William  Dalzell,  in  which  the  plaintiff,  inter  alia,  gave  in  evidence 
the  record  of  a  judgment  against  William  Dalzell,  a  fieri  facias 
issued  upon  it  and  a  levy  upon  the  house  and  lot  in  controversy,  de- 
scribing it  as  being  "a  leasehold  property,  with  some  nine  or  ten 
years  to  run."  The  property  was  sold  by  the  sheriff  upon  the  fieri 
facias,  and  he  made  a  deed  to  the  plaintiff  for  it,  which  was  regu- 
larly acknowledged  in  open  court.^''  Upon  the  trial  of  the  cause  the 

colonial  statutes,  rendered  liable  to  sale  on  execution  for  debts.  Lav/s  of 
Massachusetts  (1742)  p.  75;  Presbyterian  Corporation  )L.JVallace,  j_Ra^e 
(Pa.)  100  (1831),  at  p.  141.  By  torce  ot  tlie  express  statutory  provisions  and 
codes  of  the  different  states  the  interest  of  a  debtor  in  real  estate  may  be  sold 
on  execution.  For. a  summary  of  the  practice,  which  varies  greatly  in  the 
several  jurisdictions,  see  4  Kent's  Commentaries  430,  where  it  is  said,  "The 
general  regulation,  and  one  prevalent  in  most  of  the  states  is  to  require  the 
creditor  to  resort,  in  the  first  instance,  to  the  personal  estate,  as  the  proper 
and  primary  fund,  and  to  look  only  to  the  real  estate  after  the  personal  estate 
shall  have  been  exhausted  and  found  insufficient."  But  contra  Isham  v. 
Downer,  8  Conn.  282  (1830)  ;  Pitts  v.  Magie,  24  111.  610  (i860).  In  Massa- 
chusetts executions  may  be  levied  on  lands  and  chattels  contemporaneously. 
Hoar  v.  Tilden,  178  Mass.  157,  59  N.  E.  641  (1901)  ;  Rev.  Laws  Mass.  (1902), 
ch.  178,  vol.  2,  p.  1603.  And  see  further  New  York  Code  Civ.  Pro.,  §  1430 
ct  scq.,  Ohio  Gen.  Code  (1910),  2495,  §  11655;  Penna.  act  of  June  16,  1S36, 
P.  L.  755,  §  43  et  seq.,  2  P.  &  L.  Dig.  (2d  ed.)  3453^  ■ 

In  England  under  the  writ  of  elegit  given  by  the  statute  of  Westminster 
II  the  money  due  the  creditor  could  be  made  by  delivering  to  him  all  the 
chattels  of  the  debtor  and  one  half  of  the  land.  This  was  extended  by  the 
Judgments  Act  of  1838  (i  and  2  Vict.,  ch.  no),  §  11  to  the  whole  of  the 
debtor's  land  and  restricted  by  the  Bankruptcy  Act  of  1883  (46  and  47  Vict., 
ch.  52),  §  146  so  as  to  exclude  "goods."  By  the  rules  of  the  Supreme  Court, 
Order  XLIII,  rule  I,  writs  of  elegit  are  to  be  executed  as  heretofore.  Under 
the  Judgments  Act  of  1864  (27  and  28  Vict.  ch.  112),  §  4,  where  land  has 
actually  been  delivered  to  the  creditor  under  the  writ  of  elegit  he  may  apply, 
by  originating  summons,  to  the  Chancery  Division  for  an  order  for  the  sale 
of  his  debtor's  interest  in  the  land,  the  practice  upon  application  to  follov/ 
that  of  the  court  of  chancery  with  respect  to  sales  of  the  real  estate  of 
decedents  for  the  payment  of  debts.  Rules  of  Supreme  Court,  Order  LV, 
rule  9b ;  In  re  Duke  of  Neivcastle,  L.  R.  8  Eq.  700  ( 1869)  ;  In  re  Bithray, 
59  L.  J.  Ch.  66  (1889)  ;  In  re  Harrison  and  Bottomley,  L.  R.  (1899)  i  Ch. 
Div.  465. 

"Sowers  V.  Vie.iA  Pa^  St.  99  (1850)  ;  IVilliams  v.  Downing,  t8  Pa.  St-6i 
(1851),  hold  that  on  a  sberift's  sale  of  a  term  a  deed  is  unnecessary.  In 
England  the  sheriff  assigns  the  judgment  debtor's  term  in  writing  under  his 
official  seal.  Doe  ex  dem.  .James  v.  Brazen,  5  B.  &  Aid.  243  (1821);  Doe  ex 
dem.  Hughes  v.  Jones,  9  M.  &  W.  372  (1842)  ;  Play  fair  v.  Musgrove,  14  M.  & 
W.  239  (1845)  ;  Coleman  v.  Razvlinson,  i  F.  &  F.  330  (1858). 


68o  EXECUTION 


l>laiiitilT  ofTcrcd  this  deed  in  evidence;  it  was  olijected  to  by  the 
ilcfendant  on  the  ground  that  there  was  no  inciuisition  upon  or  con- 
demnation of  the  property.  The  same  question  was  raised  in  a  point 
put  to  the  court  by  the  defendants. 

ludge  Shaler  overruled  the  objection  to  the  evidence,  and  after 
a  careful  examination  of  the  subject  and  the  peculiar  phraseology 
of  our  acts  of  assembly  on  the  subject  of  taking  lands  in  execution, 
ruled  the  point  against  the  defendant.  Verdict  and  judgment  accord- 
ingly.'*^ 

Per  Curiam  :  It  is  said  by  Lord  Coke,  in  his  annotations  on  the 
British  statute,  that  a  term  for  years  has  been  extended  by  force 
of  the  words  medietatem  terrae  suae ;  but  he  has  not  said  that  such 
was  the  practice  in  his  day,  and  indeed  it  would  have  been  strange 
had  a  term  been  treated  as  land  for  the  purposes  of  an  elegit,  and 
as  a  chattel  for  the  purposes  of  a  common-law  extent,  or  of  a  fieri 
facias.*"  A  lessee  for  years  is  not  seised,  nor  is  he  a  terre-tenant; 
and  the  land  of  which  he  is  barely  possessed,  can  not  be  called  his 
in  the  technical,  more  than  it  can  in  the  popular  sense.  But  whatever 
may  have  been  the  practice  under  the  British  statute,  it  is  certain  that 
none  such  as  that  supposed  to  have  been  intimated  by  Lord  Coke 
has  prevailed  under  our  own;  and  a  practical  interpretation  for  more 
than  a  century  would  alone  be  decisive  of  the  question.  But  it  is  evi- 
dent that  any  other  than  the  one  we  have  adopted,  would  have  been 
inconsistent  with  the  design  of  the  legislature.  A  term  for  years  is  a 
chattel  which  might  always  be  sold  on  a  common-lav/  execution ;  and 
our  statute,  which  is  an  enabling  and  not  a  disabling  one,  was  in- 
tended to  subject  land  to  sale  for  payment  of  debts  in  the  aspect  in 
v.-hich  it  had  before  been  exempted.  It  left  the  writ  of  fieri  facias, 
as  to  chattels,  exactly  where  it  found  it.  There  was  no  motive  to 
burden  a  leasehold  interest,  which  is  usually  of  little  value  beyond 
the  rent  reserved,  with  the  costs  of  an  inquisition ;  and  that  estates 
of  freehold  were  subjected  to  execution  only  sub  modo,  arose  from 
a  lingering  regard  for  feudal  prejudices.  There  is  reason  to  think 
that  the  penmen  of  our  early  statutes,  who  seem  to  have  been  bred 
to  the  law  and  more  familiar  with  black-letter  than  the  lawyers  of 
our  day,  were  peculiarly  heedful  of  accuracy  in  the  use  of  technical 
words ;  and  it  is  said  in  the  Touchstone,  page  92,  on  the  authority  of 
Brooke,  Done  41,  that  leases  for  years  do  not  pass  by  a  general  grant 
of  lands,  though  it  seems  they  may  be  comprehended  with  the  assist- 
ance of  special  description,  or  by  force  of  the  context.  There  is  no 
reason  to  think  the  legislature  meant  to  give  that  word  a  more 


**The  arguments  of  counsel  are  omitted. 

"But  see  Palmer's  Case,  4  Coke  74,  Cro,  Eliz.  584  (i597)  ;  Fleetwood's 
Case,  8  Coke  340  (1610)  ;  Coniyn  v.  Bradlyn,  Moore  873  (1614)  ;  Richardson 
V.  Webb,  I  Morrell's  Bankruptcy  Cases  40  (1884);  Johns  v.  Pink,  L.  R. 
( 1900)  I  Ch.  Div.  296,  from  which  it  appears  that  in  England  the  judgment 
creditor  may  proceed  by  fieri  facias  and  sale  of  the  term,  or,  by  elegit  and 
either  take  the  term  at  an  annual  valuation  as  lands  extended,  or  take  the 
term  as  a  chattel  at  a  valuation  or  have  it  sold  to  a  third  person  at  such  valua- 


NICHOLS   V.    GUTHRIE  68l 

extended  meaning;  and  the  admission  of  the  sheriff's  deed,  as  well 
as  the  direction  consequent  on  it,  was  entirely  proper. ^° 
Judgment  affirmed. 


NICHOLS  V.  GUTHRIE 

Supreme  Court  of  Tennessee,  1902 
109  Tenn.  535 

Appeal  from  the  Chancery  Court  of  Maury  county. 

This  case  involves  a  controversy,  growing  out  of  the  third  clause 
of  the  will  of  Thomas  Walker,  made  in  1852,  which  is  as  follows : 
"To  my  granddaughter,  Elizabeth  Sims,  I  give  the  tract  of  land  on 
which  she  now  resides,  containing  about  one  hundred  acres,  also 
another  tract  of  about  the  same  size  adjoining  William  McLane 


^"A  term  of  years  is  a  chattel  real  and  liable  to  execution  as  personalty. 
King  v.  Deane,  2  Shower  85  (1658)  ;  Taylor  v.  Cole,  3  T.  R.  292  (1789); 
Sparrow  v.  Earl  of  Bristol,  i  Marsh.  (Ky.)  10  (1813)  ;  Doe  ex  dem.  West- 
moreland V.  Smith,  I  M.  &  Ry.  137  (1827)  ;  Rojian  v.  King,  L.  R.  (1S94)  2 
Ir.  R.  6^8;  Chapman  v.  Gray,  15  Mass  439  (1819)  ;  Adams  V.  French,  2  N.  H. 
3S7  (1821)  ;  Coombs  V.  Jordan,  3  Blr.nd  (Md.)  284,  22  Am.  Dec.  236  (1831)  ; 
Thomas  v.  Blackemore,  5  Yerg.  (Tenn.)  113  (1833)  ;  Barr  v.  Dee  ex  dem. 
Binford,  6  Blackf.  (Ind.)  335,  38  Am.  Dec.  146  (1842)  ;  Shelton  v.  Codman, 
S7  Mass.  318  (1849);  V/illia_msjv.  Dozening,  iSJPa.  St.  60  (18^1)  :  Doe  ex 
dem.  Uriah  Glenn  v.  Peters,  44  N.  Car.  457,  59  Am.  Dec.  563  (1853)  ;  Bigelow 
V.  Finch,  17  Barb.  (N.  Y.)  394  (1S53)  ;  Buhl  v.  Kenyan,  11  Mich.  249,  83  Am. 
Dec.  738  (18&3);  TJiusvUle  Novelty  Iron  Works'  ApHcd,  77  Pa.  St.  103 
(1874),  levy  out  of  view^ifficient ;  Bismark  Building  Assn.  v.  Bolster,  92_Pa. 
St.  123  (1S79)  ;  Kile  V.  Giebncr.  114^ Fa.  St.  -^8"i77~A.tl.  i;a  fiS^^'o):  /j^rew\. 
Rinehart,  3  Pa.  CoTTt.  ^o  (1887)  ;  McCrecry  v.  Bcrncy  Nat.  Bank,  iTFAla. 
224,  22  So.  577,  67  AmT^St.  105  (1S96)  ;  Smith  v.  Scanlon,  ic6  Ky.  572,  51 
S.  W.  152,  21  Ky.  L.  169  (1899)  ',  Acklin  v.  Waltermler,  19  Ohio  C.  Ct.  372 
(1899)  ;  Le fever  v.  Armstrong,  \^  Pa.  Super.  Ct.  ,^6.^  (looi)  ;  Gcllaglicr  v. 
Hicks,  2ib  Fa.  St.  24^.  6;  AtT  623  (1907)  :  Pozvcll  v.  Nichols.  2b  Ukla.  734, 
no  Pac.  762  (1910).  Contra:  Miin  v.  Carrington,  2  Root  (Conn.)  15  (1793); 
Hyatt  v.  Vincennes  N.  B.  (Ind.),  113  U.  S.  408,  5  Sup.  Ct.  573,  28  L"  ed.  1009 
(1884)  ;  Loring  v.  Melendy,  II  Ohio  355  (1842),  permanent  lease.  Also  contra 
under  statutes  forbidding  assignment  of  terms  without  the  landlord's  con- 
sent, Holliday  v.  Achle,  99  Mo.  273,  12  S.  \V.  797  (1SS9)  ;  Moser  v.  Tucker, 
87  Tex.  94,  26  S.  W.  1044  (1894)  ;  Boone  v.  First  Nat.  Bank,  17  Tex.  Civ. 
App.  36s,  43  S.  W.  594  (1897)  ;  Mexican  Nat.  Coal,  Timber  &  Iron  Co.  v. 
Frank,  154  Fed.  217  (1907),  although  the  general  rule  is  that  a  clause  for- 
bidding assignments  does  not  apply  to  executions.  Doe  ex  dem.  Mitchinson 
V.  Carter,  8  T.  R.  57  (1798)  ;  Jackson  ex  dem.  Schuyler  v.  Corliss,  7  Johns. 
(N.  Y.)  531  (1811)  ;  Jackson  ex  dem..  Stevens  v.  Silvernc.il,  15  Johns.  (M.  Y.) 
278  (1818)  ;  Smith  v.  Putnam,  3  Pick.  (Mass.)  221  (1825)  ;  Riggs  v.  Piirsell, 
66  N.  Y.  193  (1876)  ;  Farnuin  v.  Hefner,  79  Cal.  575,  21  Pac.  955,  12  Am.  St. 
174  (1889)  ;  Medina  Temple  Co.  v.  Currey,  58  111.  App.  433  (1895)  ;  in  re 
Bush,  126  Fed.  878  (1904)  ;  Powell  v.  Nicholls,  26  Okla.  734,  no  Pac.  762 
(1910). 

A  tenant  at  will  lias  not  such  an  interest  in  the  land  as  can  be  sold  en 
execution.  Waggoner  v.  Speck,  3  Ohio  293  (1827)  ;  Bigelow  v.  Finch,  11  Barb. 
CN.  Y.)  498  (1851),  17  Barb.  (N.  Y.)  394  (1853).  Contra :  Gerhrr  v  Nnrf-rcia. 
iiVJ^'N.  Cas.  (Pa.)  I97,  (1881).  By  §  1430  of  R.  V.  Code  Civ.  Pro.  the 
expression  "real  property/'  as  used  in  reference  to  executions,  includes  lease- 
hold property  where  the  lessee  is  possessed  of  five  years  unexpired  term. 
United  States  O.  Co.  v.  Btige,  136  N.  Y.  S.  297  (1912). 


682  EXECUTION 

♦  *  *  to  have  and  to  hold  said  property  during  her  natural  life, 
to  be  free  from  the  debts,  liabilities  or  contracts  of  her  present 

*  *  *  husband,  and  at  her  ileath  all  of  said  property  is  to  be 
equally  divided  among  the  children  of  said  Elizabeth  then  living,  or 
tlic  descendants  of  such  children." 

During  the  existence  of  the  life  tenancy  of  Elizabeth  Sims,  a 
judgment  creditor  of  Walter  Sims,  who  was  a  son  of  the  life  tenant, 
caused  to  be  levied  an  execution  upon  his  interest  in  the  land,  and, 
at  the  sale  made  under  and  by  virtue  of  this  levy,  became  the 
purchaser,  and  took  from  the  sheriff  a  deed  to  the  same.  Whatever 
interest,  if  any,  he  acquired  thereunder,  was  subsequently  passed 
to  one  Hoge,  who  is  defendant  to  this  cause.  After  the  levy,  but 
before  the  sheriff's  sale  thereunder,  W^alter  Sims  aliened  and  con- 
veyed all  his  interest  in  the  same  land  to  his  sister,  and  she  subse- 
quently conveyed  the  same  interest  to  one  Nichols,  who  is  one  of  the 
complainants  in  this  cause.  The  life  tenant  died  after  these  various 
transactions,  and  the  present  bill  was  filed  for  a  partition,  or  a  sale 
for  partition,  of  this  land.  The  only  controversy  in  the  case  arises 
witli  regard  to  the  Walter  Sims  interest. 

The  complainant  Nichols  insists  that  the  levy  and  sale  were 
ineffectual  to  vest  any  title  or  interest  in  the  defendant  Hoge,  be- 
cause of  the  fact  that,  at  the  date  of  such  levy  and  sale,  the  interest 
of  Walter  Sims  was  a  mere  possibility  or  expectancy  not  subject 
to  execution.  His  further  insistence  is  that  this  expectancy,  or 
possibility,  could  be  alieniated,  and,  as  an  alienee,  he  was  substituted 
to  all  tlie  right  and  interest  of  Walter.  The  converse  of  these  propo- 
sitions is  maintained  by  the  execution  purchaser,  Hoge.^^ 

Beard,  C.  J. :  The  present  certainly  falls  within  the  class  of  cases 
where  the  event  on  which  the  contingency  depends  is  certain,  while 
the  person  to  take  on  the  happening  of  the  event  is  uncertain.  For 
which  one,  if  any,  of  the  children  of  Elizabeth  Sims  would  survive 
her,  and  then  be  capable  of  taking  the  remainder,  was  uncertain 
until  her  death  occurred,  and  whatever  interest  either  of  these  chil- 
dren had  in  the  remainder  was  a  pure  expectancy. 

It  would  seem,  on  principle,  that  such  an  interest  or  expectancy, 
not  transmissible  at  common  law,  was  beyond  the  reach  of  an  execu- 
tion creditor.  Whether  a  contingent  remainder  of  any  kind  can  be 
subjected  by  a  judgment  creditor,  may  be  regarded  as  an  open 
question  in  this  state,  though  in  Henderson  v.  Hill,  9  Lea  (Tenn.) 
34,  in  the  form  of  dictum,  it  is  said :  "The  weight  of  authority  seems 
to  be  that  a  legal  contingent  remainder  is  not  subject  to  execution." 
Citing  Freeman  on  Execution,  section  175. 

Upon  examination  of  the  cases,  we  think  it  will  be  found  that 
this  statement,  though  a  dictum,  is  correct.  At  least,  such  was  the 
holding  in  Watson  v.  Dodd,  68  N.  Car.  528;  Howard  v.  Peavey,  128 
111.  430;  Diicker  V.  Burnham,  146  111.  9;  Roundtree  v.  Roundtree, 
26  S.  Car.  450;  Young  v.  Young,  89  Va.  675 ;  Jackson  v.  Middleton, 
52  Barb.  (X.  Y.)  9. 


"The  statement  of  facts  is  from  the  opinion  of  the  court,  part  of  which 
is  omitted. 


NICHOLS   V.    GUTHRIE  683 

Moore  V.  Llttel,  41  N.  Y.  66,  and  Woodgate  v.  Fleet,  44  N.  Y. 
9,  are  cited  as  contra,  but  the  first  of  tliese  cases  simply  held  that 
an  interest,  vested  or  conting;ent,  is  alienable  during  the  continuance 
of  the  antecedent  estate,  while  in  the  second  the  argument  of  the 
court  Vv"as  mainly  devoted  to  the  determination  of  the  question 
whether  the  remainder  involved  was  contingent  or  vested. 

But  it  is  said  that  the  effect  of  section  63  of  Shannon's  Code, 
which  provides  that  the  words  "real  estate,"  "real  property,"  "lands," 
include  lands,  tenements  and  hereditaments,  and  all  rights  thereto, 
and  interests  therein,  equitable  as  well  as  legal,  is  to  change  the  rule, 
and  make  an  interest  purely  contingent  as  tlie  one  in  question,  sub- 
ject to  the  claim  of  an  execution  creditor.  We  are  referred  to  the 
case  of  White  v.  McPheeters,  75  Mo.  286,  where,  in  construing  a 
statute  similar  to  ours,  this  view  is  expressed. 

But  if  we  are  right  in  our  holding  that,  during  the  life  tenancy, 
the  rem.ainder  in  the  property  in  question  vested  in  the  class  as  a 
unit,  and  not  severally  in  the  members  of  that  class,  then  there  is 
no  room  for  the  application  of  this  statute,  as  in  such  case  no  mem- 
ber of  the  class  has  an  interest  v/hich  can  fairly  be  called  legal  or 
equitable.  On  the  other  hand  if  tlie  other  view  obtains,  that  this 
was  a  mere  possibility  made,  by  reason  of  the  contingency  as  to  the 
person,  the  same  results  follow. 

It  results,  therefore,  that  the  execution  purchaser,  Hoge,  took 
nothing  by  his  purchase,  while  complainant  Nichols,  as  alienee,  if 
upon  no  other  ground,  upon  that  of  estoppel,  did  acquire  the  inter- 
est of  Walter  Sims  when  it  fell  in  upon  the  death  of  the  life  tenant. 

Affirmed.s2 


^^An  estate  in  reversion  is  subject  to  execution.  Williams  v.  Amory,  14 
Mass.  20  (1817)  ;  Burton  v.  Smith,  13.  Pet.  (U.  S.)  464,  10  L.  ed.  248  (1839)  ; 
Den  ex  dem.  Miirrell  V.  Roberts,  11  Ired.  L.  22  N.  Car.  424,  53  Am.  Dec.  419 
(1850)  ;  Bangor  v.  Warren,  34  Maine  324,  56  Am.  Dec.  657  (1851)  ;  Bean  v. 
Kiilp,  7  Phila^PajL650_li87o)  ;  Woodgate  v.  Fleet,  44  N.  Y.  i,  11  Abb.  Pr. 
(NT'S:)' 4TT1 870)  ;  AtwaieFv.  Manchester  Sav.  Bank,  45  Minn.  341,  48  N.  W. 
187,  12  L.  R.  A.  741  (1891).   So,  also,  a  vested  remainder.  Roe  v.  Humphreys, 

2  Yeates  (Pa.) ^27.  2  Dall.  22^  (i795)  ;  Den  ex  dem.  Rickey  v.  HUTman, 
7  N.  J.  L.  180  (1824)  ;  Brown  V.  Gale,  5  N.  H.  416  (1831)  ;  Kelly  v.  Morgan, 

3  Yerg.  (Tenn.)  437  (1832);  Wiley  v.  Bridgman,  1  Head.  (Tenn.)  63 
(1858);  Bonham  V.  Bishop,  23  S.  Car.  96  (18.S4)  ;  Railshack  v.  Lovejov,  116 
111.  442,  6  N.  E.  504  (1886)  ;  Shipp  v.  Gibbs,  88  Ga.  184,  14  S.  E.  196  (£891)  •, 
Stevens  v.  Mulligan,  167  Mass.  84,  44  N.  E.  1086  (1896)  ;  Deadman  v.  Yantis, 
230  111.  243,  82  N.  E.  592,  120  Am.  St.  291  (1907)  ;  Dnnkerson  v.  Goldberg,  162 
Fed.  120  (1908);  Shirran  v.  Dallas,  21  Cal.  App.  405,  132  Pac.  454  (1913). 
As  in  the  principal  case,  it  has  been  frequently  held  that  a  contingent  re- 
mainder is  not  subject  to  execution.  Baker  v.  Copenbargcr,  15  111.  103,  58  Am. 
Dec.  600  (1853)  ;  Pcnn  v.  Spencer,  17  Grat.  ("Va.)  85,  91  Am.  Dec.  375  (1866)  ; 
Jackson  v.  Middleton,  52  Barb.  (N.  Y.)  9  (1866)  ;  Watson  v.  Dodd,  68  N.  Car. 
528  (1873);  Dodge  v.  Beattie,  61  N.  H.  loi  (1881)  ;  Harvard  v.  Peavey,  128 
111.  430,  21  N.  E.  503,  15  Am.  St.  120  (1889)  ;  Young  v.  Young,  89  Va.  675,  17 
S.  E.  470,  23  L.  R.  A.  642  (1893)  ;  Smith  v.  Gilbert,  71  Conn.  149,  41  Atl.  284, 
71  Am.  St.  163  (1898)  ;  Taylor  v.  Taylor,  118  Iowa  407,  92  N.  W.  71  (1902). 
But  contra:  Cohalan  v.  Parker,  138  App.  Div.  849,  123  N.  Y.  S.  343  (1910)  ; 
White  V.  McPheeters,  75  Mo.  286  (1882)  ;  Peoples  Trust  Co.  of  Madison,  Ind. 
V.  Dewees,  143  Ky.  730,  137  S.  W.  201  (1911)  ;  De  Haas  v.  Bunn.  2  Pa.  St. 
335.  44  Am.  Dec.  201  (1845)  ;  Drake  v.  Brown,  68  Pa.  bt.  223  ( l^yiV:  Robbins' 


584  EXECUTION 

HUMn-IRl'-Y  T'.  GERARD 
Supreme  Court  of  Errors  of  Connecticut,  191  i 

S3  Conn.  346 

Action  to  quiet  and  settle  the  title  to  real  estate,  and  for  other 
equitable  relief,  brougjht  to  and  reserved  by  the  Superior  Court  in 
New  Haven  County,  Williams,  J.,  upon  an  agreed  statement  of  facts, 
for  the  advice  of  this  court  upon  questions  stipulated  by  counsel 
pursuant  to  sections  70-71  of  the  rules  of  this  court. ^^ 

Prentice,  J. :  The  plaintiffs  claim  that  Mrs.  Beecher  ^vas  en- 
titled to  compensation  from  the  other  owners  of  the  reversionary 
interest  in  the  property,  by  reason  of  the  improvements  which,  dur- 
ing the  continuance  of  her  life  estate,  she  made  upon  it  in  the  belief 
that  upon  her  death  it  would  pass  to  her  heirs ;  and  that  the  plaintiffs, 
by  virtue  of  the  foreclosure  of  their  lien,  are  entitled  to  receive  out 
of  the  proceeds  of  a  sale,  if  ordered  as  prayed  for,  the  amount  of 
such  compensation.   They  contend  that  they  are  in  a  position  to  be 

Estate,  199  Pa.  500,^  49  Atl.  233  (looi) ;  Kenvon  v.  Davis.  219  Pa.  585,  69  Atl. 
62  (1908)  ;  compare  Pattciyoii  v^^qldzceU,_i24j^a^St^^  Atl.  18,  10  Am. 

St.  598  (1889).  See  also  Moore  w717ittel,  41  N.  Y.  66  (1869)  ;  Sheridan  v. 
House,  43*  N.  Y.  (4  Keyes)  569,  4  Abb.  Dec.  218  (1868)  ;  Packer's  Estate 
(Nr>?j_j^l6  Pa.  T16.  QZJS.t\.  70   (iQU)  • 

rn  PInllips  v.  Rogers^  S3  M:iss.  405  (1847),  it  was  held  that  an  estate 
defeasible  upon  the  debtor's  dying  without  issue  living  at  the  time  of  his 
decease  could  be  taken  in  execution  and  held  until  the  happening  of  the 
contingency.  And  see  Kendall  v.  Laurence,  22  Pick.  (Mass.)  540  (1839)  ; 
I-Iarvey  v.  West,  87  Ga.  553,  13  S.  E.  693  (1891)  ;  McClure  v.  Cook,  39  W.  Va. 
579,  20  S.  E.  612  (1894)  ;  Bayer  v.  Walsh,  i66_Pa  St  38,  30  Atl.  1039  (1895). 
In  Harbcr  &  Brother  v.  Nash,  126  Ga.  tttTsS  ^-  -t^-  92S  (1906),  land  was 
devised  to  three  daughters  of  testator  with  a  provision  tliat  so  soon  as  one  of 
said  daughters  should  "leave  the  land  either  by  marriage,  death  or  otherwise" 
she  should  have  no  further  interest  therein.  Held,  that  a  daughter  had  not 
such  an  interest  as  was  subject  to  execution. 

As  to  ground  rents  compare  Hurst  v.  Liihjjrozv,  2  Yeates  (Pa.)  24,  i 
Am.  Dec.  326  (1795),  with  Payn  v.  Beat,  4  Den?  ( JN .  Y . )  405  ( 1847 ) . 

"Only  so  much  of  the  case  as  relates  to  executions  is  printed.  The 
facts  were,  briefly,  that  ^Mrs.  Maltby  died  in  1871  and  by  her  will  devised 
one  fourth  of  he'r  real  estate  in  trust  for  her  niece  Mrs.  Beecher  for  life 
and  after  her  death  to  her  "lawful  heirs."  On  the  distribution  of  Mrs. 
Maltby's  estate  the  premises  in  dispute  were  set  out  to  the  trustee  for  Mrs. 
Beecher  v/ho  was  given  a  lease  of  the  property.  It  was  then  supposed  that 
the  remainder  in  fee  was  vested  in  Mrs.  Beecher's  son,  G.  L.  Gerard,  and 
Mrs.  Beecher  at  her  own  expense  erected  a  valuable  brick  building  upon  the 
land.  In  1901  Mary  E.  Ives  (now  Humphrey)  and  others  filed  judgment 
Hens  against  Mrs.  Beecher's  interest  in  the  property  which  were  foreclosed 
and  the  judgment  creditors  ptit  in  possession.  G.  L.  Gerard  then  brougl.t 
proceedings  to  determine  his  interest  in  the  property  in  which  it  was  held 
that  he  took  no  interest  under  Mrs.  Maltby's  v.ill,  and  that  the  remainder, 
subject  to  Mrs.  Beecher's  life  estate,  was  in  the  intestate  estate  of  I^Irs. 
Maltbv.  Mrs.  Beecher  having  died,  the  judgment  plaintiffs  and  heirs  of  Mrs. 
Maltby  ask  for  an  adjudication  upon  their  respective  interests.  See  Ives  v. 
Beecher,  75  Conn.  153,  52  Atl.  746  (1903)  ;  /wj  v.  Beecher,  75  Conn.  564,  54 
Atl.  207  (1903)  ;  Gerard  v.  Ives,  78  Conn.  485,  62  Atl.  607  (1906)  ;  Gerard  v. 
Beecher,  80  Conn.  363,  68  Atl.  43S  (1908). 


HUMPHREY   V.    GERARD  685 

substituted  for  her  in  the  enforcement  of  any  claim  of  this  character 
which  could  be  enforced  in  her  interest.  This  contention  involves 
the  maintenance  of  two  independent  propositions,  to  Avit:  (i)  that 
the  circumstances  attending  the  making  of  the  improvements  by 
Mrs.  Beecher  were  such  as  to  justify  the  assertion  of  a  claim  in 
equity  for  compensation  for  them,  and  (2)  that  the  plaintiffs  by 
their  foreclosure  have  come  into  the  rights  in  that  regard  which 
otherwise  would  be  enjoyed  by  her  estate. 

We  have  no  need  to  enter  upon  an  examination  of  the  question 
as  to  what  the  rights  of  Mrs.  Beecher's  estate,  arising  out  of  the 
circumstances  under  which  the  improvements  were  made  by  her, 
or  the  conduct  of  the  parties  interested  in  the  estate,  or  both  together, 
might,  in  the  absence  of  the  foreclosure,  be.  It  is  sufficient  for  the 
negation  of  the  plaintiff's  contention  that  they  have  not  succeeded 
in  appropriating  to  themselves  any  claim  of  that  character  and  in 
coming  into  a  position  to  enforce  such  a  claim.  It  is  the  policy 
of  our  law  that  all  the  property  of  a  debtor  should  be  responsible 
for  his  debts,  and  in  consonance  with  this  policy  we  have  held 
that  our  statutes  regulating  attachments  and  executions  svibject 
to  these  processes  certain  equitable  interests  in  property.  The  in- 
terests which  have  been  thus  brought  within  the  reach  of  execu- 
tion have  included  the  equitable  title  which  a  cestui  que  trust 
has  in  lands  or  property,  the  legal  title  of  which  is  held  by  another 
under  a  trust  for  his  benefit,  the  equity  of  redemption  in  prop- 
erty subject  to  a  mortgage,^*  the  equity  in  shares  of  stock  pledged 
as  collateral  for  a  loan,  and  the  income  of  a  trust  fund  which 
the  cestui  que  trust  is  entitled  to  receive  as  of  right.  Punderson 
V.  Brown,  i  Day  (Conn.)  93,  96;  Davenport  v.  Lac  on,  ly  Conn. 
278,  281;  Middletown  Sav.  Bank.  v.  Jarvis,  33  Conn.  372,  379; 
Ives  V.  Beecher,  75  Conn.  564,  568 ;  Loonier  v.  Loonier,  76  Conn. 
522,  528.  These  equitable  interests  are  of  a  very  different  character. 


"At  common  law  an  equity  of  redemption  was  not  liable  to  sale  on 
execution  against  the  mortgagor.  Pliinket  v.  Pcnson,  2  Atk.  293  (1742); 
Kelly  v.  Btirnham,g  N.  H.  20  (1837)  ;  Van  Ness  v.  Hyatt,  13  Pet.  (U.  S.)  294, 
10  L.  ed.  168  (1839)  ;  Woodside  v.  Adams,  40  N.  J.  L.  417  (1878)  ;  Cochrane 
V.  Rich,  142  Mass.  15,  6  N.  E.  781  (1886).  But  in  the  majority  of  states,  by 
statutes  or  otherwise,  the  interest  of  the  mortgagor  may  be  taken  under  an 
execution  against  him.  Jackson  ex  dcm.  Tonslcy  v.  Rhodes,  8  Cow.  (N.  Y.) 
47  (1827)  ;  Garro  y.  Thompson,  _Z_Watts  (Pa.)  416  (1838)  ;  Doughten  v.  Gray, 
10  N.  J.  Eq.~323  (1855)  ;  Curdv^  WunSterTTXJYno^t.  92  (1855)  ;  Taylor  y. 
Cornelius,  60  Pa,_St^87  (1869)  ;  Durfce  v.  Grinncll,  69  111.  371  (1S73)'; 
Irimm'v.  MarsliTsA^-  ^-  599,  I3  Am.  Rep.  623  (1874)  ;  Walters  V.  Dcfcn- 
baugh,  90  111.  241  (1878)  ;  Loomis  v.  Lezvis,  140  Alass.  208,  5  N.  E.  488  (1885)  ; 
Bodwcll  v.  Lane,  83  Maine  168,  21  Atl.  829  (1891)  ;  Second  Nat.  Bank  v. 
Gilbert,  174  111.  485,  51  N.  E.  584,  66  Am.  St.  306  (1898)  ;  Due  v.  Bankhardt, 
151  Ky.  624,  152  S.  W.  786  (1913).  The  great  weight  of  authority  is  to  the 
effect  that  the  interest  of  a  mortgagee  in  real  property  before  foreclosure  is 
not  subject  to  sale  on  execution  against  him.  Jackson  ex  dem.  Norton  v. 
Willard,  4  Johns.  (N.  Y.)  41  (1809)";  Eaton  v.  Whiting,  20  Mass.  484  (1826)  ; 
Rickert  v.  Madeira  I  Rawle  (Pa.)  -^2^  (1829)  ;  Cooch  v.  Gerry,  3  Harr. 
(Del.)  281  (1840)  ;  Brown  v.  Bates,  55  Maine  520,  92  Am.  Dec.  613  (1868)  ; 
Morris  v.  Barker,  82  Ala.  272,  2  So.  335  (1886).  As  to  chattels  see  Ferguson 
V.  Lee,  9  Wend.  (N.  Y.)  258  (1832)  ;  Chapman  v.  Hunt,  13  N.  J.  Eq.  370 
(1861);  Prout  V.  Root,  lit  Mass.  410. 


586  rxECUTioN 

however,  from  that  which  it  is  sought  1o  here  appropriate.  It  is 
doubtless  true,  in  a  sense,  that  an  equitable  ripjht  to  have  compensa- 
tion for  betterments  is  one  which  charj^es  the  land  with  a  lien  which 
courts  of  equity  will  upon  proper  occasion  recognize,  and  by  appro- 
priate processes  enforce.  This  charge,  however,  does  not  in  strict- 
ness constitute  a  lien  on  the  estate.  Gr'isivold  v.  Bragg,  48  Conn.  577, 
581;  I  Story's  Equity  Jurisp.  (12th  cd.)  S.  655;  Freeman  on  Co- 
tenancy &  Partition  (2d  ed.),  section  510.  But  not  all  interests  in 
property  can  be  appropriated  by  a  levy  of  execution  upon  the 
property.  That  of  a  mortgagee  can  not.  Huntington  v.  Smith,  4 
Conn.  235,  237 ;  McKelvey  v.  Creevey,  ^2  Conn.  464,  467 ;  Pettus  v. 
Gault,  81  Conn.  415,  419.  In  like  manner  an  interest  which  is  so 
indeterminate,  uncertain,  or  contingent  that  it  is  incapable  of  being 
appraised  or  sold  with  fairness  to  both  the  debtor  and  creditor, 
may  not  be  thus  levied  upon.  In  Sm'itli  v.  Gilbert,  71  Conn.  149,  154, 
this  matter  was  fully  discussed  and  passed  upon,  and  we  held  that 
while  an  interest  which  was  not  strictly  goods  or  lands  might  be 
taken,  it  was  only  when  tliat  interest  was  property  capable  of  ascer- 
tainment, definition  and  valuation,  that  such  was  the  case.  The 
situation  here  is  one  w^hich  clearly  brings  any  uncertain,  undeter- 
m.ined  equity  which  Mrs.  Beecher  may  have  had  for  compensation 
for  her  improvements,  within  these  qualifying  principles,  and  makes 
it  certain  that  it  was  not  open  to  a  levy  of  execution  upon  the  realty 
or  interest  therein,  to  satisfy  the  judgment  of  these  plaintiffs.^'^  That 


•"At  common  law  an  equitable  estate  in  real  or  personal  property  could 
not  be  sold  under  a  fieri  facias.  Hence  the  creditor  was  obliged  to  po  into 
equity  to  subject  such  interest  to  the  payment  of  the  judgment.  Lystcr  v. 
Dolland,  I  Ves.  Jr.  431  (1792)  ;  Scott  v.  S'cliotcy,  8  East  466  (1807)  ;  Metcalf 
V.  ScJiotcy,  2  B.  &  P.  N.  R.  461  (1S07)  ;  Wilson  v.  Beard,  19  Ala.  629  (1851)  ; 
Smith  v.  McCann,  24  How.  (U.  S.)  398,  16  L.  ed.  714  (i860);  Ncwson  v. 
Kurtz,  86  Ky.  277,  5  S.  W.  575,  9  Ky.  L.  587  (1S87)  ;  Potter  v.  Couch,  141 
U.  S.  296,  35  L.  ed.  721,  II  Sup.  Ct.  1005  (i8qo)  ;  Bates  v.  Lcdgerzvood  M.  Co., 
130  N.  Y.  200,  29  N.  E.  102  (i8qi)  ;  Tyrrell  v.  Painton,  L.  R.  (1895)  i_  Q.  B. 
202;  Tischler  v.  Robinson,  56  Fla.  699,  48  So.  45,  (1908)  ;  Hunter  v.  Citizens' 
S.  &  T.  Co.,  157  Iowa  168,  138  N.  W.  475  (1912)  ;  Smith  v.  Collins,  81  N.  J. 
Eq.  348,  86  Atl.  957  (1913).  By  section  10  of  the  Statute  of  Frauds  (29  Car. 
n,  ch.  3)  the  interest  of  a  cestui  que  trust  in  lands,  tenements  and  heredita- 
ments was  made  liable  to  execution.  The  tendency  of  the  decisions  was  to 
restrict  the  operation  of  the  statute  to  the  estates  therein  clearly  designated. 
King  V.  Ballett,  2  Vem.  248  (1691);  Harris  v.  PiigJi,  4  Bing.  335  (1827), 
such  as  a  mere  dry  trust ;  Doe  ex  dem.  Hull  v.  Greenhill,  4  B.  &  Aid.  684,  690 
(1821)  ;  Stevens  v.  Hince,  no  L.  T.  935  (1914).  The  statute  did  not  extend  to 
the  provinces  and  in  some  of  the  states  was  not  adopted.  Russell  v.  Lewis, 
2  Pick.  (Alass.)  508  (1824).  In  other  states  the  rule  was  established  without 
statute  that  the  equitable  as  well  as  the  legal  estate  of  the  debtor  might  be 
taken  in  execution.  Flannagin  v.  Dazvs,  2  Houst.  (Del.)  476  (1862)  ;  Atwalcr 
V.  Manchester  Sav.  Bank,  45  Minn.  341,  48  N.  W.  187,  12  L.  R.  A.  741  (1891)  ; 
Air^rrler  y.  MgfJrof^  9  Sp-g.  &  R-  (PaJ  397  (1823)  ;  RickerLJL  Madcim, 
_r|^^rrwlp  £Pfj7l  3^S  |t82q).  In  the  last  case  it  is  said,  in  the  opinion  of  the 
court :  "In  consequence  of  the  want  of  a  court  of  chancery,  our  law  differs 
from  the  law  of  England,  for  in  England  a  judgment  only  binds  a  legal 
interest;  in  Pennsylvania,  a  legal  and  an  equitable  interest.  In  England,  the 
relief  is  in  chancery ;  but  here,  we  enforce  payment  by  the  common-law 
process  of  execution;  and,  hence,  under  the  construction  of  the  Act._of  J295f 
for  taking  lands  in  execution  for  payment  of  debts,  an  equitable  as  well  as  a 
legal  title  to  land,  has  been  considered  as  subject  to  the  lien  of  a  judgment. 


ROGERS   V.    KEN  NAY  687 

which  can  not  be  taken  upon  execution  can  not  be  reached  by  a 
judgment  lien.  General  Statutes,  section  4151 5  ^"^^^  v.  Beecher,  75 
Conn.  564,  567.  The  superior  court  is  advised  that  the  plaintiffs  are 
not  entitled  to  compensation  out  of  the  proceeds  of  any  sale  of  the 
property  in  question,  which  may  be  ordered,  by  reason  of  any  im- 
provements Mrs.  Beecher  may  have  made  thereon. 


ROGERS  V.  KENNAY 

Court  of  Queen's  Bench,  1846 

11  Jur.  14" 

Issue  under  the  Interpleader  Act,  tried  before  Coleridge,  J.,  at 
the  summer  assizes  at  Chelmsford,  in  1845,  in  the  common  form,  to 
try  whether  certain  goods,  seized  by  the  sheriff  of  Essex  in  an 
execution  at  the  suit  of  the  defendant,  against  one  William  Rowe, 
were,  at  the  time  of  such  seizure,  the  property  of  the  plaintiff, 
Rogers,  or  not.  On  the  trial,  it  appeared  that  Rowe,  who  was  a 
builder,  being  indebted  to  Rogers,  had  deposited  goods  with  him, 
under  the  following  memorandum : 

"Mr.  Thomas  Rogers.  Sir, — In  consideration  of  your  having 
given  cash  for  several  bills  of  exchange,  bearing  my  signature,  and 
drawn  by  you  upon  my  responsibility  and  recommendation,  I  here- 
with deposit  about  500  slates;  between  thirty  and  forty  slate  chim- 
ney jambs,  complete,  and  ready  for  fixing  up;  twenty  sink  stones; 
a  quantity  of  stone  paving;  twelve  large  stone  logs  for  laying  down 
to  given  purposes;  a  quantity  of  Bath  stone  coping,  and  several 

The  extent  of  the  decisions  in  Pennsylvania  is  to  subject  to  execution  all 
possible  contingent  titles  in  land,  accompanied  with  an  estate,  property,  or 
real  interest  in  the  land,  whether  that  interest  be  legal  or  equitable." 

The  tendency  of  modem  legislation  is  to  subject  equitable  estates  to 
levy  and  sale  on  execution  but  the  statutes  and  the  decisions  interpreting 
them  differ  in  the  several  jurisdictions.  See  Davenport  v.  Lacon,  17  Conn. 
278  (1845)  ;  Kennedy  v.  Niinan,  52  Cal.  326  (1877)  ;  New  York  Code  Civ.  Pro., 
§  1431 ;  Laclede  Bank  v.  Keeler,  103  111.  425  (1882)  ;  Poole  v.  French,  yi  Kans. 
391,  80  Pac.  997  (1905)  ;  Raymond  v.  Blancgrass,  36  Mont.  449,  93  Pac.  648 
(1908)  ;  Chamblee  v.  Atlanta  Brewing  &c.  Co.,  131  Ga.  554,  62  S.  E.  1032 
(1908);  Robertson  v.  Howard,  82  Kans.  588,  109  Pac.  696  (1910);  Peoples 
Trust  Co.  V.  Dewcese,  143  Ky.  730,  137  S.  W.  201  (loii).  Compare  Gorham 
V.  Wing,  10  Mich.  486  (1862) ';  Starr  v.  United  Slates,  8  App.  D.  C.  552  (1896)  ; 
Hogan  v.  Jaques,  19  N.  J.  Eq.  123,  97  Am.  Dec.  644  (1868)  ;  Linn  v.  Davis, 
58  N.  J.  L.  29,  32  Atl.  129  (1895)  ;  First  Nat.  Bank  of  Cortland  v.  Logite,  89 
Ohio  St.  288,  106  N.  E.  21,  L.  R.  A.  1915  B,  340  n  (1914).  In  Williams  v.  Baker, 
62  N.  J.  Eq.  563,  51  Atl.  201  (1902),  it  is  held  that  N.  J.  Comp.  Stats.  (1910), 
p.  4675,  §  7,  providing  that  on  sale  on  execution  of  any  interest  in  lands,  the 
purchaser  shall  take  such  estate  and  interest  as  the  debtor  had,  refers  only  to 
legal  estates,  and  does  not  subject  an  equitable  estate  to  execution  and  sale. 
See  further  Freeman  on  Executions  (3d  ed.),  §  18S;  17  Cyc.  957;  11  A.  &  E. 
Encj'C.  of  Law  (2d  ed.)  632.  As  to  trust  estates,  see  Ames'  Cases  on  Trusts. 
p.  433  et  scq. ;  Demuth  v.  Kemp,  130  N.  Y.  App.  Div.  546,  115  N.  Y.  S.  28 
(1909). 

^S.  c.  9  Ad.  &  El.  N.  S.  592,  15  L.  J.  N.  S.  (Q.  B.)  381. 


6SS  EXECUTION 

stoiic  ?tcps  and  stone  sla])s;  fourlocn  wheelbarrows,  and  fifty-six 
deal  planks ;  and  the  whole  of  these  things  arc  now  upon  your  land 
at  Maryland  Point,  Stratford,  ICsscx,  as  collateral  security  for  any 
sum  of  money  now  due  or  owing,  or  which  may  become  due  here- 
after or  owing,  by  virtue  of  any  bill  of  exchange,  I  O  U's  or  in  any 
other  way  whatsoever  or  howsoever;  and  I  further  authorize  you, 
in  default  or  nonpayment  on  my  part,  to  sell,  by  private  or  public 
sale,  the  whole  of  the  foregoing  articles  named,  and  account  to  nie 
(in  account  of  debit  and  credit  for  the  same),  showing  how  the 
account  may  then  stand  between  us. 

"William  Rowe." 

Rowe  removed  some  of  the  materials  from  time  to  time,  and 
deposited  others  in  lieu  of  them.  On  the  tenth  of  IMarch  the  sheriff 
seized  the  goods  in  execution  upon  the  i)laintiff's  premises.  The 
jury  found  a  verdict  for  the  plaintiff,  on  the  question  whether  the 
memorandum  \vas  given  bona  fide,  or  was  a  colorable  contrivance 
to  protect  the  goods  against  an  execution;  but  the  learned  judge 
directed  a  verdict  to  be  entered  for  the  defendant  according  to  his 
construction  of  the  memorandum,  reserving  leave  to  move  to  enter 
a  verdict  for  the  plaintiff.  In  the  following,  Michaelmas  Term,  a 
rule  nisi  accordingly  was  obtained,  against  which  Pearson  showed 
cause.  First,  some  of  tlie  goods  seized  were  not  the  same  as  had 
been  deposited  with  Rogers  under  the  memorandum ;  and  the  plain- 
tiff is  entitled  to  a  verdict  for  them.  The  memorandum  could  not 
give  tlie  transferee  a  property  in  goods  not  upon  the  plaintiff's 
premises  at  the  time  of  the  assignment.  Topfield  v.  Hilhnan,  6  ^Man. 
&  G.  245  ;  Gale  v.  Burnell,  10  Jur.  198.  [Patteson,  J. :  The  memo- 
randum does  not  seem  to  point  to  any  future  acquired  property.] 
Secondly,  a  pledge  or  mortgage  of  goods  and  chattels  does  not 
confer  a  property  in  them  to  the  pawnee  or  mortgagee.  In  detinue, 
the  declaration  in  which  states  that  the  plaintiff  was  possessed,  as  of 
his  own  property,  a  lien  must  be  pleaded  specially ;  Mason  v.  Farnell, 
12  M.  &  W.  674,  overruling  Lane  v.  Tewson,  in  note  to  White  v. 
Teal,  12  Ad.  &  El.  116;  4  Per.  &  D.  43 ;  5  Jur.  1037;  Whitehead  v. 
Harrison,  6  Q.  B.  423;  8  Jur.  894;  Barnezvall  v.  Williams,  7  Man. 
&  G.  403 ;  so  also  in  trover,  which  involves  the  right  of  property 
and  right  of  possession.  IJlnte  v.  Teal,  12  Ad.  &  El.  113,  4  Jur.  890. 
The  sheriff  might  have  sold  the  goods  subject  to  the  Hen  of  the  plain- 
tiff. "Goods  pawned  may  be  taken  on  an  execution  against  the 
pawner,  upon  satisfaction  of  the  pledge."  TIdd.  Pr.  1003,  (9th  ed.). 

Montagu  Chambers,  contra :  Part  of  the  goods  were  deposited 
under  the  memorandum,  and  other  part  at  different  times,  giving 
the  plaintiff  a  Hen  upon  them.  As  to  the  first,  the  plaintiff  holds 
them  as  a  pledge,  with  a  power  to  sell.  The  sheriff  has  no  right  to 
seize  goods  held  in  right  of  a  Hen  upon  them.  Legg  v.  Evans,  6 
M.  &  W.  36.  As  to  the  question  what  is  meant  by  the  issue  of 
property  or  no  property,  a  lien  confers  a  special  property  which 
entitles  the  party  to  detain  the  goods  as  against  a  stranger  until  his 
claim  is  satisfied.  In  trover,  a  plea  of  no  property  in  the  plaintiff 
means  no  property  as  against  the  defendant.    Nichols  V.  Bastard, 


ROGERS   V.    KEN  NAY  689 

2  Cr.  M.  &  R.  659.  [Patteson,  J.:  In  Richards  v.  Symons,  10 
Jtir.  6,  a  right  of  lien,  conferred  upon  the  defendant  by  the  plaintiff, 
supported  a  plea  in  trespass,  that  the  chattel  was  not  the  property  of 
the  plaintiff.]  When  the  judge  directed  this  issue,  he  meant  to  intro- 
duce tlie  question  as  to  special  as  well  as  general  property. 

Lord  Den  man,  C.  J. :  If  a  debtor  has  pawned  his  goods  the 
sheriff  can  do  no  more  than  sell  the  duplicates ;  they  are  all  the 
interest  of  the  execution  debtor  in  the  goods;  he  can  not  get  the 
goods  without  paying  the  money  for  Vv'hich  they  are  pledged.  Legg 
V.  Evans,  6  M.  &:  W.  36,  is  a  case  directly  in  point,  and  it  was  much 
considered. 

Patteson,  J. :  The  case  of  Legg  v.  Evans  is  directly  in  point, 
because  the  action  in  that  case  was  brought  against  the  sheriff  who 
had  seized  the  goods  in  question,  of  which  the  plaintiff  in  trover 
stated  that  he  v/as  lawfully  possessed  as  of  his  own  property.  If  in 
this  case  any  goods  were  taken  which  were  not  in  the  possession  of 
the  plaintiff,  that  would  make  a  difference ;  no  question  of  lien  would 
then  arise. 

Williams,  J.,  concurred.   Rule  absolute.^'' 


'"Chattels  pledged  are  not,  at  common  law,  liable  to  seizure  and  sale  on 
execution  against  the  pledgor,  at  least  until  paj^ment  of  the  debt  or  other 
extinguishment  of  the  pledgee's  title.  Badlam  v.  Tucker,  i  Pick.  (Mass.)  389, 
II  Am.  Dec.  202  (1823);  Jacobs  v.  Latour,  5  Bing.  130  (1828);  Moore  v. 
Hitchcock,  4  Wend.  (N.  Y.)  292  (1830)  ;  Wheeler  v.  McFarland,  10  Wend. 
(N.  Y.)  318  (1S33)  ;  Sexton  v.  Monks,  16  Mo.  156  (1852)  ;  Danforth  v.  Denny, 
25  N.  H.  155  (1852);  Mozvcr  v.  Stickney,  5  Minn.  307  (Gil.  321)  (1861); 
Reeves  v.  Serhen,  16  Iowa  234,  85  Am.  Dec.  513  (1864)  ;  First  Nat.  Bank  v. 
Pettit,  9  Heisk.  (Tenn.)  447  (1872)  ;  Smith  v.  Jennings,  74  Ga.  551  (1885)  ; 
Neill  V.  Rogers,  41  W.  Va.  37,  23  S.  E.  702  (1895)  ;  McClxntock  v.  Central 
Bank,  120  Mo.  127,  24  S.  W.  1052  (1893)  ;  First  Nat.  Bank  v.  Harkness, 
42  W.  Va.  156,  24  S.  E.  548,  32  L.  R.  A.  408  (1S96)  ;  Rice  v.  Gilbert,  72  111. 
App.  649  (1897)  ;  Sailier  Banking  Co.  V.  Hartwig,  23  Misc.  89,  51  N.  Y.  S. 
677  (1898)  ;  McClung  v.  Colwcll,  107  Tenn.  592,  64  S.  W.  890,  89  Am.  St.  961 
(1901).  In  many  states,  usually  by  statute,  the  interest  of  a  pledgor  may  be 
sold  subject  to  the  pledgee's  interest.  Pomeroy  v.  Smith,  17  Pick.  (Mass.) 
85  (1835);  McConeghy  v.  McCaw,  31  Ala.  447  (1858);  Mechanics  Bldg.  & 
Loan  Assn.  v.  Conover,  14  N.  J.  Eq.  219  (1862)  ;  Hass  v.  Prescott,  38  Wis. 
146  (1875)  ;  Horner  v.  Dennis,  34  La.  Ann.  389  (1882)  ;  Fox  v.  Cronan,  47 
N.  J.  L.  493,  2  Atl.  444,  4  Atl.  314,  54  Am.  Rep.  190  (1885)  ;  Lewis  v.  Dillard, 
76  Fed.  688  (1896)  ;  People's  Nat.  Bank  v.  IVheedon,  115  Ga.  782,  42  S.  E.  91 
(1902)  ;  Miliken  Commission  Co.  v.  Albers  Commission  Co.,  (Mo.)  147 
S.  W.  1065  (1912).  By  §  1412  N.  Y.  Code  Civ.  Pro.  the  interest  of  the  debtor 
in  property  pledged  may  be  sold  "in  the  hands  of  the  pledgee"  by  virtue  of  an 
execution  against  property.  Under  the  earlier  cases  the  sheriff  took  possession. 
Bakewell  &  Cole  v.  Ellsworth,  6  Hill  (N.  Y.)  484  (1844)  ;  Sticf  v.  Hart,  i 
N.  Y.  20,  4  How.  Pr.  (N.  Y.)  223  (1847).  ItLPennsylyaiiiaiJiLdeLthe^ct  of 
June  16.  1836.  P.  L.  775,  §  23,  2  P.  &  L.  Dig.  (2d'"edy3388,  the  sheriff  may 
sell  the  debtor's  interest  without  disturbing  the  pledgee's  possession.  Srodes 
V.  Cavrn^  3  Watts_(Pa.'>  258  (1834)  ;  Bmgh  v.  Kirk  Patrick,  54  Pa.  Str'84r9!3 
Am.  Dec.  675  ^1867);  Freeman  y.  SvPnons,  7  Phila.  (t^.)  307  (1869); 
Reichenbach  v.  McKean,  q^  Pa.   Si.  432   (1880);   IVaverly  Coal  &c.  Co.  v. 


WcKennan.  no  P^a.  St.  '^9971  Atl.  P43  (185O. 

rrTias^  been  held  that  the  interest  of  the  pledgee  in  the  goods  may  be 
sold  on  execution  against  him.  Saul  v.  Krugcr,  9  How.  Pr.  (N.  Y.)  569 
(1854)  ;  Jn  re  Rollason,  L.  R.  34  Ch.  Div.  495  (1887).  Contr?i:  do ody ear  v. 
Donnelly,  i^  W.  N.  C.  (Pa.)  314  (1883),  and  see  Mores  v.  Co'nMm,  Owen 
123  Ci6oqT.  ' 

44 — Civ.  Proc. 


690  EXECUTION 

DAVIS  1:  r.ARNARD 

Supreme  Court  of  Nr.w  Hampshire,  1881 
60  A^  H.  550 

Bill  in  equity  to  remove  a  cloud  from  the  plaintiff's  title  to 
certain  real  estate.  Facts  agreed.  The  plaintiff  and  one  John  K. 
Davis  v.-ere  tenants  in  common  of  certain  lands  in  Northfield;  and 
tlie  defendant,  havinj^  a  judgment  against  John  K.  Davis,  levied 
tlie  execution  issued  thereon  upon  the  premises  as  if  John  K.  Davis 
were  sole  tenant.  The  plaintiff  claims  that  the  levy  is  void,  and  that 
it  creates  a  cloud  on  her  title.'^^ 

Smith,  J. :  One  tenant  can  not  convey  a  part  of  the  land  held 
in  common  with  another,  by  metes  and  bounds,  to  a  stranger.  If 
he  could,  his  grantee  would  become  tenant  in  common  of  a  partic- 
ular part  with  the  other  tenant,  v/ho,  in  making  a  legal  partition, 
might,  notwithstanding  the  conveyance,  have  the  whole  of  the  part 
tlius  conveyed  assigned  as  his  property.  Porter  v.  Hill,  9  Mass,  34. 
For  tlie  same  reason  an  execution  against  one  holding  land  as  a 
tenant  In  common  can  not  be  extended  on  a  part  of  the  land  so 
holden  by  metes  and  bounds.  French  v.  Lnnd,  i  N.  H.  42 ;  Thomp- 
son V.  Barber,  12  N.  H.  563;  Smith  v.  Knight,  20  N.  H.  9;  Hall  v. 
Young,  37  N.  H.  134;  Carter  v.  Beals,  44  N.  FI.  413.^^ 

The  defendant  levied  his  execution  upon  the  whole  estate,  one 
moiety  of  which  belonged  to  the  plaintiff  and  the  other  to  the  judg- 
ment debtor.  According  to  all  the  authorities,  the  levy  was  good 
against  John  K.  Davis;  and  although  the  return  shows  that  the 
v.-hole  tract  was  levied  upon.  In  fact  his  moiety  and  that  alone 
passed  to  the  creditor  by  virtue  of  the  levy.  The  levy  did  not 
affect  the  plaintiff's  title  to  the  other  half  of  the  premises.  She  was 
not  a  party  to  the  levy,  and  is  not  bound  by  anything  that  was  done 
affecting  her  Interest.  She  remains  seized  of  an  undivided  half,  and 
tlie  defendant  became  seized  of  the  other  half  as  tenant  In  common 
with  her.  Upon  petition  by  either  for  partition,  there  will  be  noth- 
ing In  the  levy  to  prevent  judgment  that  partition  be  made.  The 
defendant  claims  to  hold  only  the  moiety  that  belonged  to  John  K. 
Davis,  and  makes  no  claim  to  the  moiety  belonging  to  the  plaintiff. 
As  the  levy  can  have  no  effect  upon  the  plaintiff's  rights,  when  par- 
tition is  made  It  must  be  made  regardless  of  the  levy.  The  plaintiff 
is  entitled  to  a  decree  that  the  defendant  release  to  her  one  undivided 
half  of  the  whole  tract. 

Case  discharged.^" 


"The  arguments  of  counsel  and  part  of  the  opinion  of  the  court  are 
omitted. 

"Accord:  Varmint  V.  Abbot,  12  Mass.  474,  7  Am.  Dec.  87  (1815)  ;  Bald- 
win V.  Whiting,  13  Mass.  57  (1816).    Contra:  Trecn  v.  Emerick,  6  Ohio  St. 

391  (1834)- 

"The  interest  of  one  of  tv/o  or  more  joint  tenants  or  tenants  in  common 
of  land  is  suhject  to  levy  and  sale  upon  execution  ap^ainst  such  tenant. 
Starr  v.  Leavitt,  2  Conn.  243,  7  Am.  Dec.  268  (1817)  ;  Bavia^ton^v.  Clarke, 


RAINS   V.    m'nAIRY  69I 

RAINS  V.  McNAIRY 

Supreme  Court  of  Tennessee,  1843 

4  Humph.  (Tenn.)  356 

John  McNairy  and  Francis  McNairy  were  the  joint  owners  of 
a  Jackass.  A  judgment  was  obtained  in  the  Circuit  Court  of  David- 
son County  by  Stout  against  John  McNairy,  and  a  fieri  facias  was 
issued  thereupon,  and  levied  on  the  animal,  by  Rains,  sheriff  of 

2^en;^&W\(Pa.)  115,  21  Am.  Dec.  432  (1830)  ;  Galusha  v.  Sinclear,  3  Vt. 
394  (i«3i);  McCormick  y. ^  Jfai^ey,  gWans_  (PaJ  482  (1840);  Jones  v. 
Lewis,  30  N.  CarTCS  IreJ.)  70,  47  Am.  Dec.'338  (1847)  ;  Argyle  V.  Dwinel,  29 
Maine  29  (1848)  ;  Smith  v.  Knight,  20  N.  H.  9  (1849)  ;  Arnold  V.  Cessna,  2^ 
Pa.  St.  34  (1855)  ;  Baker  v.  Shepherd.  27  Ga.  12  (1867)  ;  TJiompson'v.  St'itt, 
SSrPal^!.  156  (1867)  ;  Butler  v.  Roys,  25  Mich.  53,  12  Am.  Rep.  218  (1872)  ; 
Smith  vTCraw ford,  81  111.  296  (1876);  /iycor^  v.  Kimbrough,  61  Tex.  543 
(1884)  ;  Frederick  v.  Missouri  River  &c.  R.  Co.,  82  Mo.  402  (1884)  ;  Brown 
V.  Renfro,  63  Tex.  600  (1885)  ;  McClellan  v.  Solomon,  23  Fla.  437,  2  So.  825, 
II  Am.  St.  381  (1887);  Stnall's  At>t>eal.  i  Monag.  (Pa.),,  664,  15  Atl.  767 
(1888)  ;  Ballard  v.  Scruggs,  90  Tenn.  585,  18  S.  W.  259,  25  Am.  St.  703  (1891) ; 
Thornburgv.  Wiggins,  135  Ind.  178,  34  N.  E.  999,  22  L.  R.  A.  42,  41  Am.  St.  422 
(1893)  ;  Midgleyy.  Walker,  loi  Mich.  583,  60  N.  W.  296,  45  Am.  St.  431  (1894). 
In  the  case  of  estates  by  entireties  the  common  law  rule  subjected  the 
property  to  the  husband's  debts  provided  the  wife's  right  of  survivorship 
was  not  interfered  with.  Barber  v.  Harris,  15  Wend.  (N.  Y.)  615  (1836); 
Stoeblcr  v.  /S'wf?rr^_^Watts_JTaJ_j8l__Xi836)  ;  Washburn  &  Campbell  v. 
Burns,  34  N.  J.  L.  18  (1869),  Since  the  married  women's  property  acts  have 
freed  the  wife's  property  from  liability  to  the  husband's  creditors  it  has  been 
held  in  one  line  of  cases  that  during  their  joint  lives  the  land  is  free  from 
judgment  or  execution  against  either  of  them.  Chandler  v.  Cheney,  27  Ind. 
391  (1S71)  ;  Bruce  v.  Nicholson,  109  N.  Car.  202,  13  S.  E.  790,  26  Am.  St.  562 
(1891)  ;  Naylor  v.  Minock,  96  Mich.  182,  55  N.  W.  664,  35  Am.  St.  595  (1893)  ; 
Cole  Mfg.  Co.  v.  Collier,  95  Tenn.  115,  31  S.  W.  1000,  30  L.  R.  A.  315,  49  Am. 
St.  921  (189s);  McCubbin  v.  Stanford,  85  Md.  378,  27  Atl.  214  (1897); 
Dickey  v.  Converse,  117  Mich.  449,  76  N.  W.  80,  72  Am.  St.  568  (1898)  ;  Ray 
V.  Long,  122  N.  Car.  891,  44  S.  E.  652  (1903)  ;  Jordan  v.  Reynolds,  105  Md. 
288,  66  Atl.  27,  9  L.  R.  A.  (N.  S.)  I026n,  121  Am.  St.  578,  12  Ann  Cas.  51 
(1907)  ;  Aliens  y.  Lyon.  216  Pa.  604,  66  Atl.  81.  10  L.  R.  A.  (N.  S.)  463n,  116 
Am.  St.  TQiTq  Ann.  Cas.  I37  (iQO?);  Meyer's  Estate,  232  Pa.  89.  81  Atl.  145 

(1911)  ;  Bcihl  V.  Martin,  2-^6  Pa.  ^IQ,  84n^Arq^T~2:^.   R.  A.  (N.  S.)  55Sn 

(1912)  ;  In  re  Beihl,  197  Fed.  870  Pa.  (i9i2)r"Other  cases  hold  that  husband 
and  v/ife  may  each  encumber  their  tmdivided  half  of  the  property  during 
their  joint  lives  subject  to  their  respective  rights  of  survivorship.  Buttlar  v. 
Rosenblath,  42  N.  J,.  Eq.  651,  9  Atl.  69S,  59  Am.  Rep.  52  (1887)  ;  Hiles  v. 
Fisher,  144  N.  Y.  306,  39  N.  E.  337,  30  L.  R.  A.  305,  43  Am.  St.  762  (1895)  ; 
Laird  v.  Perry,  74  Vt.  454,  52  Atl.  1040,  59  L.  R.  A.  340  (1901).  See  9  L.  R.  A. 
(N.  S.)  1026;  61  U.  of  Pa.  Law  Review  476. 

An  execution  against  one  of  several  joint  tenants  or  tenants  in  com- 
mon is  levied  on  the  debtor's  undivided  interest  and  not  by  taking  a  part  of 
the  tract  as  the  debtor's  share.  Bartlct  v.  Harlow,  12  Mass.  348,  7  Am.  Dec. 
76  (1815)  ;  Smith  v.  Benson,  9  Vt.  138,  31  Am.  Dec.  614  (1837)  ;  Brown  v. 
Bailey,  i  Mete.  (Mass.)  254  (1840);  Staniford  v.  Fullcrton,  18  Maine  229 
(1841)  ;  Campau  V.  Gogfrey,  18  Mich.  27,  100  Am.  Dec.  133  (1869)  ;  Aycock  v. 
Kimbrough,  61  Tex.  543  (1884).  Contra:  Treon  v.  Emerick,  6  Ohio  391 
O834).  In  Massachusetts,  a  levy  and  sale  on  execution  of  land  of  a  tenant 
in  common,  operates,  after  partition,  by  way  of  estoppel  to  transfer  title  to 
the  purchaser,  if  the  land  described  is  allotted  to  the  debtor.  Cressey  v.  Cres- 
sey,  215  Mass.  65,  102  N.  E.  314  (1913).  "The  application  of  this  principle," 
says  Rugg,  C.  J.,  "results  in  something  like  a  wager  or  chance.  The  grantee 
gets  nothing  unless  on  partition  the  shares  of  the  grantor  should  happen  to 
include  the  parcel  described  by  metes  and  bounds  in  the  deed." 


602  EXFXUTION 

Davidson.  F.  McXalry  attended  on  the  day  of  the  sale  and  forbade 
the  same,  but  the  sheriff  sold  the  entire  interest  in  the  animal  and 
delivered  him  to  the  purchaser. 

Francis  McXairy  instituted  thereupon  this  action  of  trover  in 
the  Circuit  Court  of  Davidson  County  ai:;^ainst  Rains,  and  a  verdict 
and  judi::nicnt  were  rendered,  Mancy,  Judc^c,  ])rcsiding,  in  favor 
of  the  plaintiff,  for  the  sum  of  $300,  that  bcinj^f  the  estimated  value 
of  his  interest  in  the  animal.    The  defendant,  ivains,  appealcd.*^^ 

Green,  J.:  Francis  H.  and  John  S.  IMcNairy  were  joint  owners 
of  a  jackass,  upon  which  Rains,  the  sheriff',  levied  an  execution  in 
his  hands  against  John  S.  McNairy.  F.  H.  McNairy  forbade  tlie 
sale,  claiming  the  ownership  of  one-half;  but  the  sheriff  sold  and 
delivered  to  the  purchaser  the  whole  jack;  whereupon  this  action 
of  trover  was  brought.  The  plaintiff  recovered  for  one-half  the 
value  of  the  jack  in  the  circuit  court,  and  Rains,  the  sheriff,  appealed 
to  tliis  court. 

It  is  now  insisted  that  tlie  sheriff  had  a  right  to  take  and  deliver 
tlie  jack  to  the  purchaser,  by  virtue  of  the  execution  against  John 
S.  I\IcNairy;  that  the  purchaser  became  joint  owner  of  the  jack 
with  F.  H.  IMcNairy,  the  sale  of  the  entire  property  having  in  fact 
transferred  only  the  one-half ;  and  as  a  consequence  of  tliese  propo- 
sitions, it  is  contended  that  there  has  been  no  conversion,  and  that 
no  action  lies  by  one  tenant  in  common  against  the  otlier. 

Each  co-tenant  having  a  right  to  the  possession,  can  not  be  sued 
by  the  other  part  owner,  unless  there  has  been  a  conversion  of  the 
property;  and  the  older  elementary  books  hold,  that  a  sale  by  one 
co-tenant  of  the  entire  property  does  not  amount  to  a  conversion, 
but  that  its  destruction  would.®^ 

It  is  argued  that  as  the  sale  by  one  tenant  in  common  of  his  co- 
tenant's  share,  passes  the  interest  of  the  vendor  only,  the  interest  of 
the  other  co-tenant  still  remains  in  common  with  the  purchaser,  and 
therefore  there  can  be  no  conversion  by  the  act  of  sale.  Bac.  Abr. 
Trover ;  Salk.  292 ;  i  East  367 ;  Littleton,  section  323.  And  this  doc- 
trine was  maintained  in  tlie  case  of  Morcereau  v.  Norton,  15  Johns. 
(N.  Y.)  179,  where  it  was  held  that  a  sale  was  not  such  a  destruction 
of  the  property  as  to  destroy  the  tenancy  in  common. 

But  the  more  recent  American  cases  hold  that  as  the  assumption 
of  authority  over,  and  actual  sale  of  the  property  by  a  stranger,  will 
constitute  a  conversion,  so  the  assuming  authority  to  sell,  and  act- 
ually making  sale  of  the  interest  of  another,  under  a  claim  of  title 
in  the  vendor,  although  he  be  part  owner,  may  be  taken  to  be  a  con- 
version, for  which  an  action  of  trover  will  lie.  Weld  v.  Oliver,  21 
Pick.  (Mass.)  559;  White  v.  Osborne,  21  Wend.  (N.  Y.)  72;  Mel- 
ville V.  Brown,  15  Mass.  82;  Lucas  y.  Wasson,  3  Dev.  (N.  Car.)  398. 

It  is  true,  such  sale  does  not  vest  in  the  purchaser  any  greater 
interest  than  that  of  the  party  making  the  sale ;  and  the  co-tenant, 
who  is  not  consulted,  may  so  consider  it,  and  take  the  property  when 
opportunity  offers;  but  he  may  sue  in  trover  for  the  eonversion, 


**The  arguments  of  counsel  are  omitted. 
"Trout  V.  Kennedy'j  4Z_Pa.  387  (1864). 


RAINS   V.    M'nAIRY  693 

and  thereby  vest  in  the  purchaser  the  entire  property.  21  Wend. 
(N.  Y.)  yj. 

In  a  late  case,  Waddell  v.  Cook,  2  Hill  (N.  Y.)  47,  an  action  of 
trespass  was  sustained  against  the  marshal,  Waddell,  for  seizing 
and  selling  goods  of  Cook  under  fieri  facias  against  Bowne,  who  was 
a  joint  owner  of  the  goods  with  Cook.  The  court  held  that  though 
the  marshal's  authority  extended  to  a  total  dispossession  of  both 
the  co-tenants  by  an  execution  against  one,  yet  the  law  denied  him 
the  right  to  sell  the  entire  property.  In  attempting  to  do  so,  though 
the  act  be  nugatory,  yet  the  law  may  well  treat  it  as  such  an  abuse 
of  legal  authority,  as  renders  him  a  trespasser  ab  initio.  2  Kent 
351,  note  b,  4th  ed. 

We  therefore  think  this  action  was  well  conceived,  and  affirm 
tlie  judgment.^^ 


*'The  interest  of  a  tenant  in  common  chattels  may  be  taken  and  sold  on 
execution  against  him  alone.  Mersereaii  V.  Norton,  15  Johns.  (N.  Y.)  179 
(1818)  ;  Pettingill  v.  Bartlctt,  I  N.  H.  87  (1817)  ;  Whitney  v.  Ladd,  10  Vt.  165 
(1838)  ;  M'Elderry  v.  Flannagan,  I  Har.  &  G.  (Md.)  308  (1827)  ;  Thompson 
V.  Mazvhinney,  17  Ala.  362,  52  Am.  Dec.  176  (1850)  ;  Hopkins  v.  Forsyth,  14 
Pa.  .S^  ■i/\.  ^7.  Am__npc  513  (1850)  ;  Hay  den  v.  Binney,  73TiIass.  (7  GrayT) 
416  (1856)  ;  Aweary  v.  Cahill,  20  III.  214  (1858).  The  general  practice  is  for 
the  officer  to  levy  upon  and  take  possession  of  the  whole  of  the  common 
property  but  to  sell  only  the  debtor's  interest.  Melville  v.  Brown,  15  Mass.  82 
(1818)  ;  Reed  v.  Howard,  43  I^Iass.  (2  Lletc.)  36  (1S40)  ;  Waddell  v.  Cook, 

2  Hill  (N.  Y.)  47,  37  Am.  Dec.  372  (1841)  ;  Ficro  v.  Bet  is,  2  Barb.  (N.  Y.)  633 
(1848)  ;  Ray  v.  Birdseye,  5  Denio  (N.  Y.)  619  (1846)  ;  Caldwell  v.  A}igcr,  4 
Minn.  (Gil.  156)  217,  yy  Am.  Dec.  515  (i860)  ;  Vcach  v.  Adams,  51  Cal.  6og 
(1877)  ;  Burton  v.  Kennedy,  63  Vt.  350,  21  Atl.  529,  25  Am.  St.  769  (1891). 
Henderson  V.  Brenneckc,  26  App.  Div.  309,  49  N.  Y.  S.  (1898)  ; 
Spalding  v.  Allred,  23  Utah  354,  64  Pac.  lioo  (1901).  Unless  naturally  sev- 
erable, Newton  v.  Hoxve,  29  Wis.  531,  9  Am.  Rep.  616  (1S72),  see  Snyder  v. 
Stehman.io  Vz.  Super.  Ct.  639  (1899).  And  in  some  states  statutes  forbid 
the  slier  iff  trom  taking  a  chattel  trom  a  co-owner  without  his  consent,  in 
which  case  the  levy  may  be  made  without  possession.  Vicory  v.  Straiisbaugli, 
78  Ky.  425  (1880);  Willis  v.  Loeb,  59  Miss.  169  (1881)  ;  Richart  v.  Good- 
paster,  116  Ky.  637,  76  S.  W.  831,  25  Ky.  L.  889  (1903)  ;  Heydon  v.  Heydon, 

1  Salk.  392  (1693). 

The  principles  applicable  to  cotenancies,  were  in  the  early  cases,  applied 
to  partnerships.  Bacluirst  w.  Clinkard,  I  Show.  169  (1691)  ;  Chapman  v.  Koops, 

3  Bos.  &  P.  289  (1802)  ;  Johnson  v.  Evans,  y  M.  &  G.  240  (1844)  ;  Helmore  v. 
Smith,  L.  R.  35  Ch.  Div.  449  (1885),  and  in  America  these  precedents  have 
been  folloAved  by  courts.  Reed  v.  Shepcrdson,  2  Vt.  120,  19  Am.  Dec.  697 
(1829)  ;  Phillips  v.  Cook,  24  Wend.  (N.  Y.)  3S9  (1840)  ;  Newhall  v.  Bucking- 
ham, 14  111.  405  (1853)  ;  V/iles  V.  Maddox,  26  Mo.  yy  (1857)  ;  Nixon  v.  Nash, 
12  Ohio  St.  647,  80  Am.  Dec.  390  (1861)  ;  Robinson  v.  Tevis,  38  Cal.  6n 
(1869) ;  Smith  v.  Orser,  42  N.  Y.  132  (1870)  ;  Clements  v.  Jessup,  36  N.  J.  Eq. 
569  (1883)  ;  Wright  v.  IVcrd,  65  Cal.  525,  4  Pac.  534  (1S84)  ;  Fdt  v.  Cleghorn, 

2  Colo._  App.  4,  29  Pac.  813  (1S92).  But  the  interest  acquired  by  the  pur- 
chaser is  no  more  than  the  interest  of  the  execution  debtor  upon  a  settlement 
of  the  partnership's  affairs.  United  States  v.  Hack,  8  Pet.  (U.  S.)  271,  8  L  ed 
941  (1834)  ;  Garbctt  v.  Veale,  5  Ad.  &  El.  (N.  S.)  408  (1843)  ;  Eighth  Nat. 
Bank  V.  Fitch,  49  N.  Y.  539  (1872)  ;  Farley,  Spiar  &  Co.  v.  Moog,  79  Ala.  148 
58 Am.  Rep. 585  (1885)  ;  Sr^anw  Gilbert,  175  III.  204,  si  N.  E.  604,  67 Am.  St. 
208  (1898)  ;  Weber  v.  Herts,  188  111.  68,  58  N.  E.  676  (1900).  Hence  it  has 
been  held  that  the  partnership  goods  can  not  be  taken  from  the  firm  for  the 
purpose  of  selling  the  interest  of  a  member  of  the  firm.  Sanborn  v.  Royce, 
132  Mass.  594  (1882)  ;  Russell  v.  Cole,  167  Mass.  6,  44  N.  E.  1057,  57  Am.  St. 
432  (1896);  Levy  &  Sugar  v.  Cowan,  27  La.  Ann.  556  (1875)  ;  Haynes  v. 
Knowles,  36  Mich.  407  (1877)  ;  Ernest  v.  Woodworth,  124  Mich.  I,  82  N.  W. 


694  EXECUTION 

SECTION  3.     LIEN  OF  EXECUTIONS 

DUNCAN  V.  M'CUMBER 
Supreme  roTTPx  m?  Pfnnsyj-vanta,^  1840 

10  Jl'aits  (Pa.)  212 

Error  to  the  Common  Pleas  of  Erie  County. 

This  was  an  action  of  trespass  de  bonis  asportatis,  brought  by- 
Solomon  IM'Cumber,  the  defendant  in  error,  against  James  Duncan, 
plaintiff  in  error.  The  goods  in  question  were  part  of  the  personal 
estate  of  IMoses  Fellows  at  the  time  of  his  decease;  and  as  such 
were  thereupon  taken  into  possession  by  Rebecca  Fellows,  his  ex- 
ecutrix and  widow.  Upon  a  judgment  obtained  against  her,  as  the 
executrix  of  IMoses  Fellows,  in  favor  of  James  Duncan,  the  plain- 
tiff in  error,  in  the  common  pleas  of  Erie  County,  a  writ  of  fieri 
facias  was  sued  out  to  ]\Iay  term,  1839,  directed  to  the  sheriff  o£ 
Erie  county,  and  delivered  to  him  to  be  executed  on  the  twenty- 
seventh  day  of  Alarch,  1839,  in  tlie  borough  of  Erie;  at  which  place, 
it  seems,  that  the  sheriff,  without  going  to  the  residence  of  Rebecca 
Fellows  about  fourteen  miles  from  the  borough,  where  the  goods 
then  were,  endorsed  a  seizure  of  them  upon  the  back  of  the  writ, 
without  seeing  them,  or  having  them  in  his  power;  and  without 
attempting  to  take  the  possession  of  them,  until  twenty  days  or 
more  afterwards,  when,  in  the  meanwhile,  they  had  come  into  the 
hands  and  possession  of  the  defendant  in  error,  as  a  purchaser 
thereof  at  constable's  sale,  made  under  the  following  circumstances: 
On  the  first  of  April,  1839,  ^^i  execution  was  issued  by  Thomas 
Greenwood,  a  justice  of  the  peace  of  Erie  county,  against  Rebecca 
Fellows,  in  her  own  right,  as  it  would  appear  by  tlie  execution,  at 
the  suit  of  Ezra  Thompson,  for  $70.79,  besides  costs  of  suit;  also, 
on  the  next  day,  another  execution  was  issued  by  P.  Wells,  another 
justice  of  the  peace  of  Erie  county,  against  Rebecca  Fellows,  as 
executrix  of  Moses  Fellows,  deceased,  at  the  suit  of  Timothy  J. 
Newton,  for  a  debt  of  $6.20,  besides  eighty-two  cents  cost;  both 
of  these  executions  were  directed  to  the  constable  of  Harborcreek 


661  (1900);  Morrison  v.  Blodgctt,  8  N.  H.  238,  29  Am.  Dec.  653  (1836); 
Treadivell  v.  Brown,  43  N.  H.  290  (1861)  ;  Garvin  v.  Paul,  47  N.  H.  158 
(1866)  ;  Deal  v.  Bogne,  20  Pa.  St  228,  57^"i.  Dec.  702  (1853)  ;  Kcinheimer 
V.  ]jcmtiqi\:a}],  jT?"^,  ~ST  ^^TTT^ho )  :  lyurhorrow's  Appeal,  84  Pa.  St.  404 
rr^77T;Pa^Art  f^Anril  8.  187^.  P.  L.  e^^rTTS  L.  DiR.  (2cl  ed.)  3572;  ITare^ 
v__r»»im,p2Pa~?r  lAi  (1870^)  :  I<ic]iar£v,.AIlm^J^^X^^^^:^-^^^QS>JJ^  Atl.  552, 
2  Am.  St.  652  (1887)  ;  WJiite  y.  ^ech,  171  Pa.  St.  82,  32  Atl.  1130  (1895)  ; 
In  re  S Packman's  AppcaTZAj^-  Super  Ct.  221  (1897)  ;  Jones  v.  Lawrence 
(Tex.)  151  S.  W.  584  (19T2).  In  Lnglafid  under  the  act  of  1890  (53  and  54 
Vict.)  ch.  39,  §  23,  a  writ  of  execution  can  not  issue  against  partnership 
property  except  on  a  judgment  against  the  firm.  But  the  judgment  creditor 
of  a  partner  may  obtain  an  order  charging  the  partner's  interest  in  the  firm 
and  appointing  a  receiver  of  his  share  of  the  profits.  Brown,  Janson  &  Co. 
V.  Hutchinson,  L.  R.  (1895)  2  Q.  B.  126. 


DUNCAN    V.    m'CUMBER  695 

township,  in  Erie  county,  whose  name,  as  it  appears,  was  G.  W. 
Walker.  Having  them  in  his  hands  on  the  second  day  of  April, 
1839;  he,  by  virtue  thereof,  actually  took  the  goods  from  the  pos- 
session of  Rebecca  Fellows  where  he  found  them,  and  in  the  course 
of  ten  or  twelve  days  afterwards,  sold  them  at  public  auction  to 
the  defendant  in  error,  after  giving  due  notice  thereof.  The  goods, 
upon  the  defendant  in  error's  paying  for  them,  were  accordingly 
delivered  by  the  constable  to  him ;  from  whom  the  plaintiff  in  error, 
in  company  with  the  deputy  sheriff,  afterwards,  but  before  the  return 
day  of  the  fieri  facias,  took  the  goods  by  virtue  thereof. 

Upon  the  trial  of  the  cause  below,  after  the  evidence  was  given 
to  the  jury,  the  counsel  of  the  defendant  requested  the  court  to 
charge  the  jury,  first,  tliat  the  execution  in  favor  of  James  Duncan 
and  against  Rebecca  Fellows,  executrix  of  Moses  Fellows,  deceased, 
bound  the  personal  property  of  the  deceased,  from  the  delivery  of 
the  same  to  the  sheriff.  Second,  that  the  levy  and  sale  of  the  goods 
by  the  constable.  Walker,  upon  an  execution  issued  by  a  justice,  and 
received  by  the  constable  after  the  lien  of  the  fieri  facias  in  the 
sheriff's  hands  had  attached,  did  not  release  the  goods  from  the 
sheriff's  levy  and  lien;  and  that  notwithstanding  the  action  of  tlie 
constable,  the  sheriff  was  justified  in  taking  and  selling  the  goods 
upon  the  fieri  facias  in  his  hands.  Third,  that  tlie  execution  in  the 
constable's  hands,  being  against  Rebecca  Fellows  for  her  individual 
debt,  the  constable  could  not  levy  upon  and  sell  the  goods  late  of 
Moses  Fellows,  deceased,  in  her  possession  as  executrix,  so  as  to 
release  them  from  the  previous  lien  of  the  fieri  facias,  in  favor  of 
James  Duncan  against  Rebecca  Fellows,  as  the  executrix  of  Moses 
Fellows,  deceased. 

The  court  in  their  charge  to  the  jury  considered  the  defendant's 
first  proposition  to  be  correct  in  general;  but  denied  his  second, 
unless  the  purchaser  at  the  constable's  sale  had  full  notice  of  the 
sheriff's  claim  to  the  goods  under  the  fieri  facias,  and  his  indorse- 
ment thereon  of  having  levied  on  the  same ;  whether  he  had  such 
notice  or  not,  the  court  left  as  a  question  of  fact  to  the  jury  to  be 
decided  by  them.  The  defendant's  third  proposition  the  court  an- 
swered in  the  negative.  The  counsel  of  the  defendant  below  ex- 
cepted to  the  answers  and  charge  of  the  court  on  his  second  and 
third  proposition;  which  have  been  assigned  for  error. 

Kennedy,  J. :  At  common  law,  in  England,  the  writ  of  fieri 
facias  bound  the  defendant's  goods  from  its  teste,  so  that  a  sale  of 
the  goods  made  thereafter  by  the  defendant,  though  bona  fide, 
might  have  been  avoided  by  a  seizure  of  the  goods  under  the  writ 
at  any  time  before  it  became  returnable.  Anonymous,  Cro.  Eliz. 
174;  Cro.  Car.  149,  181,  440;  i  Mod.  188;  Gilb.  on  Executions,  13, 
14.®*  It  was  no  doubt  presumed,  when  such  writ  was  awarded,  that 


"The  common-law  rule  prevails  in  Tennessee.  Coffee  v.  Wray,  8  Yerg. 
(Tenn.)  464  (1835);  Edwards  v.  Thompson,  85  Tenn.  720,  4  S.  W.  913,  4 
Am.. St.  807  (1887)  ;  Cecil  v.  Carson,  86  Tenn.  139,  5  S.  W.  532  (1887),  and 
formerly  prevailed  in  North  Carolina;  Palmer  v.  Clarke,  13  N.  Car.  (2  Dev. 
L.)  354,  21  Am.  Dec.  340  (1830).  Cf.  Weisenfield  v.  McLean,  96  N.  Car.  248, 
2  S.  E.  56  (1887). 


696  EXECUTION 

it  would  not  only  be  issued,  but  would  be  immediately  put  into  the 
hands  of  the  sheriff,  and  be  by  him  executed.  This,  however,  was 
not  always  the  case.  On  the  contrary,  the  notion  of  the  goods  being 
retrospoclively  bound  from  the  teste  of  the  writ,  as  frequently 
abused  by  taking  out  writs  of  fieri  facias  one  after  the  other,  without 
ever  delivering  them  to  the  sheriff,  whereby  the  goods  of  the  de- 
dcfendants  therein  named  became  bound,  \vhich  consequently  made 
the  sales  thereof  by  the  defendants,  and  all  commerce  in  regard  to 
them,  somewhat  uncertain.  To  prevent  this,  as  Chief  Baron  Gilbert 
observes,  Gilb.  on  Executions  14,  it  was  enacted,  among  other 
things,  by  the  Statute  of  Frauds,  29  Car.  2,  ch.  3,  section  16,  "that 
no  writ  of  fieri  facias,  or  other  writ  of  execution,  shall  bind  the  prop- 
erty of  the  goods,  against  whom  such  writ  of  execution  shall  be 
sued  forth,  but  from  the  time  that  such  writ  shall  be  delivered  to 
the  sheriff,  under  sheriff,  or  coroners  to  be  executed;  and  for  the 
better  manifestation  of  the  said  time,  the  sheriff,  under  sheriff, 
and  coroners,  their  deputies  and  agents,  shall,  upon  the  receipt  of 
any  such  writ  (without  fee  for  doing  the  same),  indorse  upon  the 
back  tliereof,  the  day  of  the  month,  or  year,  whereon  he  or  they 
received  the  same."    i  Mod.  188;  i  Sid.  271.^°   But  neither  before 


''Repealed  by  the  act  of  19  and  20  Vict.,  ch.  97,  §  i,  but  substantially 
revived  by  the  Sales  of  Goods  Act  of  1893  (56  and  57  Vict.,  ch.  71,  §  26) 
as  follows : 

"A  writ  of  fieri  facias  or  other  writ  of  execution  against  goods  shall 
bind  the  property  in  the  goods  of  the  execution  debtor  as  from  the  time 
when  the  writ  is  delivered  to  the  sheriff  to  be  executed;  and,  for  the  better 
manifestation  of  such  time,  it  shall  be  the  duty  of  the  sheriff,  without  fee, 
upon  receipt  of  any  such  writ  to  endorse  upon  the  back  thereof  the  hour, 
day,  month  and  j-ear  when  he  received  the  same. 

"Provided  that  no  such  writ  shall  prejudice  the  title  to  such  goods 
acquired  by  any  person  in  good  faith  and  for  valuable  consideration,  imless 
such  person  had  at  the  time  when  he  acquired  his  title  notice  that  such  writ 
or  any  other  writ  by  virtue  of  which  the  goods  of  the  execution  debtor  might 
be  seized  or  attached  had  been  delivered  to  and  remained  unexecuted  in  the 
hands  of  the  sheriff." 

See  Hutchinson  v.  Johnston,  1  T.  R.  729  (1787)  ;  Samuel  v.  Duke,  3  M.  & 
\V.  622  (1838)  ;  Guest  V.  Cozvbridge  R.  Co.,  L.  R.  6  Eq.  619  (1S68)  ;  McGivcrn 
v.  McCausland,  19  U.  C.  C.  P.  460  (1869)  ;  Clifford  v.  Logan,  9  Manitoba  423 
(1894).  Where  several  writs  arc  delivered  to  the  sheriff  at  the  same  time 
there  is  no  priority  between  them.  AshzvortJi  v.  Earl  of  Uxbridge,  12  L.  J. 
Q.  B.  39  (1842).  And  as  to  county  courts  see  Murgatroyd  v.  Wright,  L.  R. 
(1907)  2  K.  B.  333. 

Section  16  of  the  statute  of  frauds  was  at  an  early  date  adopted  by 
many  of  the  states,  and,  while  the  modem  tendency  is  toward  the  abolition 
of  an  execution  lien  before  levy,  the  statute  is  still  substantially  in  force  in 
about  one  half  of  the  states.  2  Freeman  on  Executions  (3d  ed.)  1017; 
Haggerty  &  Nobles  v.  Wither,  16  Johns.  (N.  Y.)  287,  8  Am.  Dec.  321  (1819)  ; 
Lambert  v.  Paulding,  18  Johns.  (N.  Y.)  311  (1830)  ;  Cowden  v.  Brady,  8  Scrg. 
&  R_4Pa.)  505  (1822)  ;  Shafncr  v.  Gjhnorc^j^V^its&^^JF^TTA^X  1842)  ; 
Johnson  v.  McLane,  7  Blackt.  (TncT.')  501,  43  Amr  i5ec7~i'o2  (1845)  ;  James  v. 
Burnet,  20  N.  J.  L.  63S  (i8zi6)  ;  Ray  v.  Birdseye,  5  Denio  (N.  Y.)  619  (1846) ; 
Taylor  v.  Horsey,  5  Har.  (Del.)  131  (1849);  Love  v.  Williams,  4  Fla.  126 
(1851);  Marshall  V.  Cunningham,  13  111.  20  (1851);  Newcombe  v.  Leavitt, 
22  Ala.  631  (1853)  ;  Gott  v.  Williams,  29  Mo.  461  (i860);  French  v.  Allen, 
50  Maine  437  (1862);  Whitehead  v.  Woodruff,  11  Bush  (Ky.)  209  (1874); 
McCrisaken  v.  Osweiler,  70  Ind.  131  (1880)  ;  Sawyer  v.  Bray,  102  N.  Car.  79, 
8  S.  E.  885,  II  Am.  St.  713  (1889)  ;  Hanchett  v.  Ives,  133  111.  332,  24  N.  E.  396 


DUNCAN    V.    m'cUMBER  697 

nor  since  the  passage  of  this  statute,  is  the  property  of  the  goods 
altered  by  the  mere  dehvery  of  the  writ  to  the  sheriff,  but  continues, 
notwithstanding,  in  the  defendant,  till  the  execution  thereof.  The 
meaning  of  these  words,  "that  the  goods  shall  be  bound  from  the 
delivery  of  the  writ  to  the  sheriff,"  is,  that  after  the  writ  is  so  de- 
livered, if  the  defendant  makes  an  assignment  of  his  goods,  unless 
in  market  overt,  the  sheriff  may  take  them  in  execution.  Lathal  v. 
Tomkins,  2  Eq.  Ca.  Abr.  381,  pi.  14;  Smallcomh  v.  Cross,  i  Ld. 
P>.aym.  252;  per  Holt,  C.  J.  This  statute,  however,  only  protects 
goods  in  the  hands  of  purchasers  or  strangers,  where  the  goods  are 
sold  bona  fide;  for  if  the  party  die  after  tlie  teste,  but  before  the 
delivery  of  the  writ  to  the  sheriff,  the  goods  are  bound  in  the  hands 
of  his  executors  or  administrators;  for  this  is  not  a  change  of 
property  by  sale,  or  for  a  valuable  consideration ;  Comb.  145  ;  so  that 
in  this  respect  the  law  is  still  the  same  that  it  was  before  the  statute, 
which  was  made  for  the  benefit  of  strangers,  who  might  have  ac- 
quired a  title  to  the  goods  between  the  teste  of  the  writ  of  execu- 
tion, and  the  time  of  tlie  delivery  thereof  to  the  sheriff,  and  not  for 
the  benefit  of  the  part}^,  or  his  executors,  or  administrators.  Bac. 
Abr.  tit.  Execution,  716,  733;  Gilb.  on  Executions,  15,  16.^^  That 
the  principle  of  the  common  law  of  England  in  regard  to  the  goods 
of  a  defendant,  in  an  execution,  being  bound  thereby  from  its  teste, 
was  introduced  into  and  adopted  in  Pennsylvania,  upon  its  first 
settlement  as  a  province,  is  evidenced  very  clearly  by  our  act  of 
Assembly,  passed  for  tlie  prevention  of  frauds  and  perjuries,  in 

(1890)  •,Inre_Braden's  Estate.  16;  Pa.  St.  184,  ^o  Atl.  746  (1895)  ;  Gillig  v. 
George  CT'lrealu'cIl  Co.,  148  N.  Y.  177,  42  N.  E.  590  (1896)  ;  Hall  v.  Nash, 
58  N.  J.  Eq.  554,  43  Atl.  683  (1890)  ;  Boisseau  v.  Bass,  100  Va.  207,  40  S.  E.  647, 
57  L.  R.  A.  380,  93  Am.  St.  956  (1902)  ;  Spicks  v  Prosperf.  Tir  Cq  ,  ^q  Pp 
SuEei\_Ct3Q9_ti9a2)  ;  Starhuck  v.  Gcho,  59  N.  Y.  Misc.  332,  112  N.  Y.  S.  312 
(1908)  ;  N.  Y.  Code  Civ.  Pro.,  §§  1363,  1405 ;  McAdams  v.  Mundy,  79  N.  J.  L. 
480,  76  Atl.  1031  (1910)  ;  Rock  Island  Plow  Co.  v.  Rcardon,  222  U.  S.  354, 
56  L.  ed.  231  (1911  111.)  ;  Schneider  v.  Schmidt,  82  N.  J.  Eq.  81,  88  Atl.  179 
(1913).  In  some  jurisdictions  bona  fide  purchasers  without  notice  of  the 
execution  are  protected  before  actual  levy.  Van  Waggoner  v.  Moses,  26  N.  J. 
L.  570  (1857)  ;  Evans  v.  Walsh,  41  N.  J.  L.  281,  32  Am.  Rep.  201  (1879)  ; 
Williams  v.  Shelly,  37  N.  Y.  375  (1867);  Osborn  v.  Alexander,  40  Hun 
(N.  Y.)  323  (1886)  ;  N.  Y.  Code  Civ.  Pro.  §  140Q;  Hiding,  Brockerhoff  &  Co. 
V.  Cabell,  9  W.  Va.  522,  27  Am.  Rep.  562  (1876);  Trevillian  v.  Guerrant, 
31  Grat.  (Va.)  525  (1879)  ;  Wcisenficld  V.  McLean,  06  N.  Car.  248,  2  S.  E. 
56  (18S7).  In  other  jurisdictions  actual  levy  is  made  the  test  of  priority. 
Princeton  Bank  v.  Crozer,  22  N.  J.  L.  383,  53  Am.  Dec.  254  (1850),  as  to  bank 
stock;  Merccin  V.  Burton,  17  Tex.  206  (1856),  personal  property;  Johnson  v. 
Gorham,  6  Cal.  195,  65  Am.  Dec.  501  (1856)  ;  Tidlis  v.  Brazvley,  3  Minn.  277 
(1859)  ;  Knox  V.  Webster,  18  Wis.  406,  86  Am.  Dec.  779  (1864)  ;  Reeves  v. 
Sebern,  16  Iowa  234,  85  Am.  Dec.  513  (1864)  ;  Baqley  v.  Ward,  2,7  Cal.  121,  99 
Am.  Dec.  256  (1869);  McMahan  v.  Hall,  36  Tex.  59  (1871)  ;  Sawyers  v. 
Sawyers,  93  N.  Car.  321  (1885).  In  Ohio  there  is  no  preference  among 
executions  sued  out  of  the  same  court  apainst  the  same  debtor  during  the 
term  at  which  the  judgment  is  rendered  or  within  ten  days  thereafter. 
Meier  v.  Fir.'it  Nat.  Bank,  55  Ohio  St.  446,  45  N.  E.  907  (1896). 

"Changed  in  Pcnna.  as  to  debtor's  dying  after  the  teste  but  before 
delivery  of  the  writ  by  the  act  of_Feb.  24,  1834,  P.  L.  70,  §  33,  2  P.  &  L.  Dig. 
(2d  ed.)  2659;  Hoskins  V.  HustonTTlhirk  H'a.')  48q_(i8j^).  But  where  the 
writ  is  delivered^  the  sheriff  has  priority  altliouc^h  the  debtor  die  before  levy. 
In  re  Aver^  Estate,  i  C.  P.  Kept.  (Pa.)  151  (1877). 


69S  EXECUTION 

177 J."'  The  fourth  section  of  this  act  is  an  exact  transcript  of  the 
sixteenth  section  of  29  Car.  2,  ch.  3,  ah-eady  recited,  with  the  excep- 
tion of  the  words  "of  the  person,"  which  appear  to  have  been  omitted 
in  the  Knghsh  statute,  evidently  from  oversight.  Had  not  the  rule 
of  tlie  common  law  of  England  on  this  subject  been  in  force  here, 
the  passage  of  our  act  would  have  been  wholly  unnecessary.  But 
being  in  force  here,  and  tlie  like  evils  experienced  from  it,  as  were 
there,  it  became  necessary  to  apply  a  similar  remedy.  It  is  evident, 
therefore,  since  the  w-rit  of  fieri  facias  in  this  case  was  delivered 
to  the  sheriff  before  the  executions  were  issued,  under  which  the 
constable  took  and  sold  the  goods,  that  they  were  bound  by  the  fieri 
facias,  when  the  executions  came  into  the  hands  of  the  constable, 
whether  the  sheriff  had  actually  then  made  a  seizure  of  the  goods  or 
not ;  and  as  against  a  purchaser  from  the  defendant  in  tlie  execution, 
tlie  sheriff  would,  by  virtue  of  the  lien  thus  acquired,  have  had  a  right 
to  seize  or  take  the  goods  at  any  time  before  the  return  day  of  the 
fieri  facias  had  passed  by,  and  to  sell  them  afterwards,  for  the  pur- 
pose of  satisfying  the  debt  mentioned  in  tlie  writ.®^  But  whether  he 
had  such  right,  as  against  a  purchaser  without  notice  of  the  lien 
under  the  fieri  facias  from  a  constable,  where  the  latter  took  and 
sold  the  goods  under  executions  authorizing  him  to  do  so,  seems  to 
present  a  different  question.  Under  the  statute  of  29  Car.  2,  it  has 
been  held,  that  goods  bought  at  a  sale  made  under  an  execution,  de- 
livered to  the  sheriff  subsequently  to  the  delivery  of  a  prior  execu- 
tion, were  protected  from  the  prior  execution,  in  the  hands  of  the 
purchaser  under  the  second  execution;  although,  as  to  any  other 
part}^,  the  goods  were  bound  by  the  prior  delivery  of  the  first  writ, 
under  which  the  sheriff  ought  to  have  taken  and  sold  them.  This 
distinction  seems  to  have  been  considered  necessary,  in  order  that 
the  ends  of  justice  might  be  advancd,  which  it  was  thought  would  be 
frustrated,  should  the  sales  made  under  execution  be  suffered  to  be 
invalidated  by  other  executions,  in  being  before  or  at  the  same  time. 

••Re-enacted  by  the  Act  of  Junej6^^836J-  L.  755,  §§  39  and  40,  2  P.  &. 
L.  Dig.  (2d  ed.)  3434;  Shafnef'vTVUmore,  3  Watls_&_S-  (Pa.)  438  (1842); 
Schuylkill's  Appeal,  30  Pa.  St  358  U858).  But  a  levy  must  be  made  before 
tKe  return~dnv'onHe'\vrit.  Sturge7  Appeal,  86  Pa.  St.  413  (1878);  In  re^ 
Braden's  Estatejjl^  Pa.  St.  iB^Tso  Atl.^46  (1895).  And  a  writ  of  fieri 
facias  without  levy  creates  no  lien  on  real  estate  independent  of  the  judgment 
lien,  Wilson's  Appeal,  90_Pa-  St.  370_(i879).  Hence,  where  neither  of  two 
judgmenTsTTa  lien  upofriand7the  tirst  levy  has  the  first  grasp  on  the  fund 
raised  by  the  sale.  Shcrrardy.  Johnson,  193  Pa.  St.  166,  44  Atl.  252,  74  Am. 
St.  680  (1899).  Accdrd'tToTCTV  v.  Reed7W'ir^^~AA2  (1883)-  As  to  life  estates 
see  AVoLvJEaM^s^^SJAlaUsJTaXSJP  (1839)- 

•'In  Ativood  v.  Pierson,  g  Ala.  656  (1846),  it  is  said  the  right  which 
the  sheriff,  or  other  officer  acquires,  gives  a  special  property  only,  and  this  for 
the  sole  purpose  of  enabling  him  to  perform  the  duty  which  the  law  enjoins. 
But  the  general  property,  as  wcH  as  the  title,  remains  in  the  debtor,  clogged, 
it  is  true,  with  the  lien  created  by  the  levy;  and  so  it  would  be,  in  like 
manner,  if  instead  of  actual  seizure  the  execution  was  in  the  sheriff's  hands. 
It  can  not  be  said,  therefore,  that  the  seizure  Creates  an  adverse  title  to  the 
debtor,  for  the  general  property  remains  with  him,  capable  of  disposition  in 
any  way  which  does  not  impair  the  lien." 

See  Harrison  v.  IVilson,  2  A.  K.  Marsh.  (Ky.)  547  (1820)  ;  Butler  V. 
Maynard,  11  Wend.  (N.  Y.)  54S,  27  Am.  Dec.  100  (1834)  ;  Mumper  v.  Rush- 
more,  79  X.  Y.  19  ( 1879)  ;  Steffin  v.  Steffin,  4  Civ.  Proc.  R.  (N.  Y.)  179  (1883). 


DUNCAN    V.    m'CUMBER  699 

Smallcomh  v.  Cross,  i  Ld.  Raym.  252 ;  Hutchinson  v.  Johnson,  i 
T.  R.  729.  It  is  certainly  of  the  first  importance  in  order  that  the 
ends  of  justice  may  be  fully  met  and  answered,  that  personal,  as  well 
as  real  estate,  should  bring  fair  prices  at  judicial  sales,  which  can 
not  be  affected  with  any  degree  of  certainty,  without  giving  all  rea- 
sonable protection  to  the  purchasers  thereof.  And  seeing  such  sales 
are  not  only  made  publicly,  but  at  a  certain  time  and  place,  fixed 
on  for  that  purpose  by  the  proper  officer  of  which  he  is  required 
to  give  a  certain  previous  notice,  either  by  written  or  printed  hand- 
bills set  up  in  the  most  public  places,  or  advertisements  published 
in  the  newspapers  of  the  country,  so  that  all  wishing  to  buy  may 
be  informed  of  the  sale  about  to  be  made,  and  that  other  officers, 
having  jvidicial  process  in  their  hands,  which  they  ought  to  execute, 
may  be  advised  of  what  is  going  on,  and  assert  their  claims  of 
preference,  if  they  have  any,  it  would  seem  to  be  both  expedient 
and  reasonable,  that  property  once  sold,  in  this  manner,  should  not 
be  liable  to  be  sold  a  second  time,  under  judicial  process  against  the 
same  defendant,  after  it  shall  have  gone  into  the  hands  of  the  pur- 
chaser, at  the  first  sale.  If  an  officer,  who  has  judicial  process 
placed  in  his  hands  to  be  executed,  shall  through  neglect  of  duty, 
or  want  of  proper  vigilance  upon  his  part,  suffer  a  sale  of  property 
to  be  made,  under  judicial  process  of  later  date,  as  to  lien,  whereby 
an  injury  or  loss  shall  accrue  to  the  party  in  whose  favor  he  holds 
such  process,  it  is  better  that  he  should  be  held  liable  for  such  loss 
than  that  the  purchaser  should  be  disturbed  in  his  enjoyment  of  the 
property  after  having  bought  and  paid  for  it.  Under  this  view  of 
the  case,  and  the  law  applicable  to  it,  we  are  of  opinion  that  the  sale 
of  the  goods  in  question,  so  far  as  the  constable  took  and  sold  them, 
under  the  execution  against  Rebecca  Fellows,  as  the  executrix  of 
Moses  Fellows,  deceased,  was  good,  and  that  the  sheriff  could  not 
afterwards  take  the  same  goods  out  of  the  possession  of  the  pur- 
chaser at  constable's  sale.  Consequently,  if  Duncan,  the  defendant 
below,_  either  advised  the  sheriff  or  his  deputy  to  take  the  goods,  or 
aided  in  doing  so,  he  thereby  became  a  trespasser,  and  liable  to  be 
sued  by  the  plaintiff'  below  as  such.  But  in  regard  to  the  goods  taken 
and  sold  by  the  constable,  under  the  execution  against  Rebecca 
Fellows,  individually  in  her  own  right,  we  think  the  constable  had 
no  right  to  take  the  goods  in  her  possession  belonging  to  the  estate  of 
Moses  Fellows,  the  testator,  as  long  as  the  sheriff  had  in  his  hands 
an  execution  against  her,  as  executrix  of  the  testator,  which  bound 
the  goods.  Farr  v.  Newman,  4  T.  R.  621.^^  The  court  below,  how- 
ever, instructed  the  jury  otherwise. 

Judgment  reversed,  and  a  venire  facias  de  novo  awarded.'^'' 

"A  levy  upon  property  of  a  person  other  than  the  judgment  debtor  is  a 
trespass.  Hazard  v.  Israel,  i  BiniT,  24Q_2  Am.  Dec.  438  (1808)  ;  Farrant  v 
Thompson,~2iy:  &  Ry.  i  (i822)TPhillips  v.  Hall,  8  Wend.  (N.  Y.)  610,  24 
Am.  Dec.  108  (1832)  ;  Carson  v.  McCormick  Harvesting  Maclt.  Co.,  18  Tex. 
Civ.  App.  225,  44  S.  W.  406  (1898)  ;  Harris  v.  Nelson,  113  111.  App.  487  (1902)  ; 
Graham  v.  Lane.  ^  Brewst.  (Pa.)  92  ("i860). 

'"In  Rogers  v.  Dickey,  6  111.  (i  Gilm.)  636,  41  Am.  Dec.  204  (1844),  the 
court  extracts  the  following  principles  from  t)ic  decisions :   "First,  that  where 


-OO  EXECUTION 

RICE  r.  SERGEANT 

Court  of  King's  Bench,  1702 

7  Mod.  37 

A  man  Iiavinj:^  obtained  a  judj^mcnt  for  a  just  debt  against  A 
took  out  a  fieri  facias  and  got  the  sheriff  to  seize  the  goods,  but 
would  not  let  him  proceed  farther ;  but  suffered  the  goods  to  remain 
in  the  custody  of  A,  the  debtor.  B,  who  had  also  obtained  a  judg- 
ment against  A  for  a  just  debt,  took  out  a  fieri  facias. 

The  question  was  whether  he  could  seize  upon  the  same  goods. 

And  Per  Curiam  he  may,  for  the  former  was  a  fraudulent  exe- 
cution and  the  sheriff  might  very  well  return  nulla  bona  upon  the 
first  execution.^^ 


two  or  more  writs  of  fieri  facias  are  delivered  at  different  times,  either  to 
the  same  or  different  officers,  and  no  sale  is  actually  made  of  the  defendant's 
goods,  the  execution  first  delivered  must  have  the  priority-,  though  the  first 
seizure  may  have  been  made  on  a  subsequent  execution.  Second,  but  where 
the  goods  are  actually  sold  by  virtue  of  a  levy  made  under  a  junior  execu- 
tion, the  sale  will  be  good,  and  the  property  can  not  aftervrard  be  taken  from 
the  purchaser  by  the  senior  execution.  The  only  remedy  of  the  party  injured 
is  against  the  officer."  Accord :  Sniallconib  V.  Buckingham,  5  Mod.  376,  I  Ld. 
Ra>Tn.  251,  I  Salk.  320  (i6q6)  ;  Payne  v.  Drew,  4  East  523  (1804)  ;  Hotchkiss 
v.  McVickar,  12  Johns.  (N.  Y.)  403  (1815)  ;  Marsh  v.  Lazvrence,  4  Cow. 
(N.  Y.)  461  (1825)  ;  McCall  v.  Trevor,  4  Blackf.  (Ind.)  496  (1838)  ;  Qimcqn 
v.  McCnmbcr.  2  Watts  &  S.  (Pa.)  264  (1841),  retrial  of  principal  case; 
WcClelland  V.  Shingluff,  7  Waffs'SrS'.  (Pa.)  434,  42  Am.  Dec.  224  (1844)  ; 
Miller  v.  Urady,  76  Ark.  276,  88  S.'^W.^oBjTJQOS)  ;  Love  v.  Williams,  4  Fla. 
126  (1851)  ;  Faircloth  V.  Fcrrell,  63  N.  Car.  640  (1869)  ;  Evans  v.  Walsh,  41 
N.  J.  L.'28i,  32  Am.  Rep.  201  (1879)  ;  Speclman  v.  Chaffee,  5  Colo.  247  (1880)  ; 
Stroudshnrg  Bank's  Aff^cal.  126  Pa.  St.  .S23,  i7.Atl.  868  (1889)  ;  In  re  J.  R. 
Richardson  Co.,  2b  Del.  336,  83  Atl.  1034  (1912).  'Contra :  Kerr  v.  Montgomery, 
I  Hill  (S.  Car.)  277  (1833)  ;  Robinson  v.  Cooler,  I  Hill  (S.  Car.)  286  (1833), 
and  see  Lancaster  v.  Jordan,  78  Ala.  197  (18S4). 

In  .'Simpson  v.  Snvdcr,  4  Pa.  D.  R.  64l_  (1895),  a  constable  who  sold 
under  his  levy  after  notice  by  the  sheriff  or  ~a  prior  execution  in  his  hands, 
was  held  liable  to  the  sheriff  in  assumpsit  for  the  proceeds  of  his  sale  to  an 
amount  sufficient  to  satisfj'  his  writ. 

^^At  common  lav/,  goods  taken  in  execution  and  suffered  to  remain  in 
the  debtor's  custody  could  be  seized  at  the  suit  of  another  creditor.  Twyne's 
Case,  3  Coke  82,  i  Sm.  L.  Cas.  i  and  note  (1601)  ;  West  v.  Skip,  i  Ves.  Sr. 
456  (1749)  ;  Smith  V.  Russell,  3  Taunt.  400  (1811)  ;  Lovick  v.  Croivder,  8  B.  & 
C.  132  (1S2S)  ;  Christopherson  v.  Burton,  3  Exch.  160  (1848).  The  rule  has 
been  so  stated  in  American  cases.  United  States  v.  Convngham,  Fed.  Cas.  No. 
14850,  4  Dall.  358,  1  L.  ed.  865,  Wall.  Sr.  178  (1802)  ;  B'erry  v.  Smith,  3  Wash. 
(C.  C.)  60,  Fed.  Cas.  No.  13S9  (1811)  ;  Roberts  v.  Scales.  1  Ired.  L.  (N.  Car.) 
88  (1840);  Wilson  v.  Hensley,  4  Ired.  L.  (N.  Car.)  66  (1843);  Border  v. 
Benge,  12  Iowa  330  (1861) ;  Parker  v.  Waugh,  34  Mo.  340  (1864).  And,  un- 
doubtedly, if  the  property  is  left  with  the  defendant  not  merely  as  custodian 
but  with  the  ordinary  powers  of  an  owner  (such  as  the  power  to  sell),  the 
levy  will  be  regarded  as  merely  colorable  and  fraudulent.  Knox  v.  Summers, 
4  Yeates  (Pa.)  477  (1807)  ;  Farrington  v.  Sinclair,  15  Johns.  (IN.  Y.)  429 
T1818)  ;  Dickenson  v.  Cook,  17  Johns.  (N.  Y.)  332  (1820)  ;  Cook  v.  Wood, 
16  N.  J.  L.  254  (1837)  ;  In  re  Keyser's  Appeal,  13  Pa-  St.  409.  53  Am.  Dec.  487 
(1850)  ;  Webster  v.  Denison,  25  Vt.  493  0^53)  V  i'ruitt  v.  Liidwig,  25  Pa^_St. 


ORCHARD 


WILLIAMSON 


701 


ORCHARD  V.  WILLIAMSON 


Court  of  Appeals  of  Kentucky,  1831 
6  /-  /.  Mar.  (Ky.)  558 

In  the  fall  of  1828,  Williamson  being  the  owner  of  a  bay  mare, 
swapped  her  with  Mark  Millian  for  a  black  mare.  At  the  time  the 
exchange  took  place,  Tudder,  then  a  constable  of  the  county  in 
which  the  parties  resided,  had  two  small  executions  in  his  hands 
against  Millian,  which  he  levied  on  the  bay  mare  in  the  possession 
of  Millian.  On  the  same  day,  finding  the  black  mare  in  the  posses- 
sion of  Williamson,  he  levied  them  on  her  also,  and  carried  them  off. 
After  the  exchange  had  taken  place,  he  received  a  third  execution 
against  Millian,  which  he  also  levied  on  each  of  the  mares. 

On  the  execution  of  bonds  for  the  delivery  of  the  property,  to 
the  officer  on  the  day  of  sale,  by  Millian  with  Orchard  as  his  surety, 
both  mares  were  delivered  to  Millian ;  who,  to  indemnify  Orchard, 


145  (1854)  ;  Jayne  v.  Dillon,  28  Miss.  283  (1854)  ;  PnryM  A-  (7n^c  Aj>p^l^j^i 
Pa.  St.  27.^,  80  Am.  Dec.  615  (1861)  ;  Davidson  v.  rFaZtfroM,  31  Ilir^^or^S^rn- 
T5ec.  206  (1863")  ;  Sage  V.  Woodin,  66  (N.  Y.)  578  (1876)  ;  Acton  &  IVood- 
nutt  v.  Knowlcs,  14  Ohio  St.  18  (1862)  ;  Murphy  v.  Swadener,  33  Ohio  St.  85 
(1877)  ;  Wunderlich  v.  Roberts,  67  Ind.  421  (1879)  ;  Wtinsch  v.  McGraw,  4 
Wash.  y2,  29  Pac.  832  (1892)  ;  Glazier  v.  Sawyer,  11  Pa.  Co.  Ct^_Rep.  34 
(1892)  ;  Mulligan  v.  Barnes.  171  Pa.  St.  ^3.  T^'i'Atl.  iioo"Ti8og,)  ;  Dunham  v. 
Rundle,  4  Pa.  Super._Q^Il24^(i897).  But  the  mere  fact  that  the  goods  are 
lett  m  the  possession  of  the  debtor  does  not,  in  some  American  jurisdictions, 
alone  constitute  fraud  in  itself;  there  must  be  further  evidence  of  mala  fides 
to  deprive  the  creditor  of  his  lien.  Doty  v.  Turner,  8  Johns.  (N.  Y.)  20 
(1811) ;  Rew  v.  Barber,  3  Cow.  (N.  Y.)  272  (1824)  ;  Hoivell  y.  Alkyn,  2  Ra^vle 
(Pa.)  282  (1830)  ;  Swigert  v.  Thomas,  7  Dana  (Ky.)  220  (1838)  ]  Cumberland 
Bank  v.  Hann,  19  N.  J.  L.  166  (1842)  ;  Larits  v.  lyorthinntnn^  /\  p^  "^t.  753 
45  Am.  Dec.  682  (1846)  ;  Dutertre  v.  Driard,  7  Cal.  549  (1857)  ;  IVeidejiSjauLv. 
keyriolds,  /iQ  Pa.  St.  _23-Xj86=;)  ;  Elias  v.  Farley,  42  N.  Y.  (3  Keyes.)  398,  2 
AEb.  App.  II,  5  Abb.  Pr.  (N.  S.)  39  (1867)  ;  Dancy,  Hyman  &  Co.  v.  Hubbs, 
71  N.  Car.  424  (1874)  ;  Carlisle  v.  Wathen,  78  Ky.  365  (1880).  So,  creditors 
may,  without  destroying  their  lien,  agree  that  the  debtor's  assignee  for  cred- 
itors may  sell  the  goods  and  pay  them  out  of  the  proceeds.  InjreKent, 
Santfc  fr  Co  's  Appeal.  87  Pa.  St.  i6S  (1878)  ;  Mathezv's  Estate,  "144  Pa.  St. 
139',  22  Atl.  903  (1891)  ;  In  re  Leidich's  Estate,  iMIFa^St-  4'^i.  29  Atl.  89,  90 
(1894)  ;  Broadliead  v.  Cornman,  171  Pa.  St.  322,  33  Atl.  360  (1895). 

In  Power  v.  Van  Bur  en,  7  Cow.  (N.  Y.)  560  (1827),  a  levy  was  made  in 
December  upon  hides  in  vats  undergoing  the  process  of  tanning  and  which 
could  not  be  sold  before  spring  without  sacrifice  and  the  sheriff  was  directed 
not  to  sell  until  May.  Held,  that  the  fieri  facias  was  not  dormant  as  to 
subsequent  executions.  A  postponement  to  avoid  sacrificing  the  property  was 
reasonable.  Whipple  v.  Foot,  2  Johns.  (N.  Y.)  418,  3  Am.  Dec.  442  (1807)  ; 
Eantz  v.  Worthington,  4  Pa.  St.  153,  45  Am.  Dec.  682  (1846)  ;  Cj)nnelj__v. 
■Q'Neil,  154  i"a.  ^r  58^,  26"Atl.  607  (1893).  Compare  Burleigh  v.  Piper,  51 
Iowa  649^2  N.  W.  520  (1879);  Sweetser  v.  Matson,  153  111.  568,  39  N.  E. 
1086,  27  L.  R.  A.  374,  46  Am.  St.  911  (1894). 

Where  a  proper  order  to  proceed  with  the  execution  is  given  before  a 
second  execution  is  delivered  to  the  sheriff,  the  first  has  priority.  Deacon  V. 
Govett,  4  Fhila.  (Pa.)  7  (i860);  In  re  Freeburger's  Appeal.  40  Fa.  St  244 
(1861). 


-02  EXECUTION 

permitted  him  to  keep  possession  of  them.  Previous  to  the  day 
of  sale.  WilHamson,  without  the  consent  of  MilHan  or  Orchard, 
obtained  possession  of  the  black  mare,  and  carried  her  to  another 
county :  but  Orchard  having  pursued  him,  regained  possession ;  and 
on  thiC  day  of  sale,  delivered  each  mare  to  the  officer.  He  sold  the 
bay  mare  first,  for  a  sum  more  than  sufficient  to  discharge  the  two 
executions  which  the  constable  had  received,  previous  to  the  ex- 
change between  IMillian  and  Williamson.  He  then  sold  the  black 
mare,  under  the  third  execution ;  whereupon  Williamson  as  an  in- 
fant, by  Detheridge  his  next  friend,  instituted  an  action  of  trover 
and  conversion  against  Orchard,  claiming  in  his  declaration,  dam- 
ages for  an  illegal  conversion  of  each  of  the  mares.  Verdict  for 
Williamson  for  $20  and  motion  for  new  trial  overruled.  Orchard 
prosecutes  tliis  writ  of  error.'^- 

BucKXER,  J. :  Whether  the  constable  had  a  right  to  sell  the 
black  mare  under  the  execution  which  he  had  not  received  until  after 
^lillian  and  the  defendant  in  error  had  made  tlie  exchange,  is  a 
question  in  the  solution  in  which  we  apprehend  not  the  least  diffi- 
culty; but  it  is  not  presented  in  the  present  record,  and  to  decide 
it  v.-ould  be  premature  and  useless.  But  the  authority  on  the  part 
of  the  constable  to  levy  the  two  executions  which  first  came  to  his 
hands,  upon  both  of  the  mares,  is  directly  involved;  because,  if  he 
had  not  authority  to  levy  on  both,  it  must  result  from  the  fact  that 
the  defendant  in  error,  being  the  owner  of  one  or  tlie  other  of  them, 
she  was  not  subject  to  those  executions;  and  in  that  event  it  is 
clear  that  he  was  entitled  to  a  verdict. 

But  if  the  levy  made  by  the  constable  was  valid,  Williamson 
had  no  right  to  demand  the  possession  of  either  mare  until  the 
money  was  made,  by  the  sale,  to  discharge  the  two  executions  which 
were  rightfully  levied.  And  having  no  right  to  the  possession. 
Orchard  can  not  be  properly  charged  with  an  illegal  conversion, 
for  delivering  possession  of  property  to  the  officer,  for  the  delivery 
of  which  he  was  bound  by  his  written  obligation.  Were  the  two 
mares  then  subject  to  the  two  executions  referred  to?  That  they 
were,  we  are  satisfied.  By  the  provisions  of  the  statute  on  the 
subject,  all  the  property  of  a  defendant  in  an  execution,  which  is 
subject  to  execution,  is  bound  by  it  from  the  time  of  its  delivery  to 
the  sheriff.  That  tlie  black  mare,  being  the  property  of  Millian, 
and  in  his  possession,  in  the  county  of  Madison,  w^hilst  the  officer 
had  in  his  hands  two  executions  against  his  property,  was  subject 
to  them  at  the  time  Tudder  made  the  levy,  can  not  be  questioned, 
unless,  by  the  transfer  of  her  to  the  plaintiff  in  error,  the  lien,  which 
the  law  creates,  had  been  released;  a  position  which  has  not  been 
even  contended  for.  But  the  argument  is,  that  the  levy  on  the 
bay  mare,  made  by  the  constable  previously  to  that  on  the  black, 
was  an  affirmance  of  the  exchange  between  Millian  and  the  defend- 
ant in  error,  and  rendered  that  valid  which  had  been  previously 
voidable  at  the  option  of  the  plaintiffs  in  the  executions,  but  not 


"The  statement  of  facts  is  taken  from  the  opinion  of  the  court,  part  of 
which  is  omitted. 


ORCHARD   V.    WILLIAMSON  703 

void.  This  argument  seems  to  be  based  on  the  supposition  that  the 
constable  had  a  right  to  levy  on  either  one  of  the  mares,  but  not  on 
both;  a  position,  which  is  considered  as  entirely  untenable.  Both 
of  them,  if  necessary  for  the  payment  of  the  two  executions  men- 
tioned, were  properly  levied  on,  and  might  have  been  sold,  if  the 
first  one  sold  had  failed  to  bring  the  amount  required.  Suppose 
the  levy  had  been  made  on  the  black  mare  first,  would  the  contract 
of  exchange  between  Millian  and  Williamson  have  been  thereby 
vacated,  so  that  the  latter  would  have  had  a  right  to  demand  from 
the  constable  the  bay  mare,  after  he  had  taken  her  into  possession 
under  levy?  It  is  clear  that  he  would  not.  Williamson  would,  in 
such  case,  have  his  action  against  Millian  for  passing  property 
to  him  which  had  been  subsequently  taken  and  sold  by  a  paramount 
claim;  but  he  would  have  no  more  right  to  the  property,  with  the 
title  to,  and  possession  of  which  he  had  parted,  than  he  would  have 
had  to  it,  if,  instead  of  receiving  by  way  of  exchange  the  black 
mare,  Millian  had  assigned  him  a  note  on  some  insolvent  man ;  for, 
in  either  c&se,  Millian  would  be  presumed  to  have  acted  in  good 
faith,  until  the  contrary  should  be  made  to  appear.  It  is,  to  be 
sure,  a  misfortune  for  an  individual  to  lose  the  property  parted 
with,  as  well  as  the  consideration  which  he  supposes  he  has  re- 
ceived ;  but  his  misfortune,  in  such  a  case,  is  similar  to  those  which 
must  be  necessarily  encountered,  in  many  cases,  by  persons  con- 
tracting for  property  with  men  who  have  not  a  valid  title  to  it,  and 
may  be  unable  to  make  compensation  for  the  injuries  sustained. 
Suppose  that  Millian  had  given  to  Williamson,  in  the  exchange, 
$50  as  an  estimated  difference  in  the  value  of  the  two  mares,  and  so 
soon  as  he  got  the  bay  mare,  had  swapped  her  to  a  third  person, 
who  had  exchanged  her  with  a  fourth,  for  another  horse ;  and  under 
such  circumstances,  the  constable  had  levied  on  the  mare  in  Wil- 
liamson's possession ;  would  he,  in  such  case,  have  a  right  to  retake 
the  bay  mare?  It  is  evident  that  he  would  not.  And  why?  Be- 
cause, although  once  the  owner  of  her,  he  had  parted  with  his 
title  to  her,  and  delivered  possession ;  and  Millian  would  then  have 
an  unquestionable  right  to  dispose  of  her  as  he  might  think  proper. 
In  this  case  he  had  not  sold  hei-,  but  she  was  taken  under  execution 
by  an  officer  of  the  law,  and  the  right  of  the  plaintiff  in  such  execu- 
tion to  have  sold  her,  if  necessary  to  the  discharge  of  his  executions, 
was  as  undeniable  as  would  be  the  right  of  the  individual,  in  the  case 
put,  to  retain  possession  of  her  as  his  own  property.'^" 
Reversed  and  remanded  for  further  proceedings. 


"The  general  lien  of  an  execution  binds  property  acquired  by  the  debtor 
after  the  writ  has  come  into  the  hands  of  the  sheriff  and  while  the  writ  is 
current  and  unsatisfied.  Shafncr  v.  Gilmore,  3  Watts  &  S.  (Pa.)  438  (1842); 
Brown  v.  Burrus,  8  Mo.  26  (1843T;  Ray  v.  tixrdseye,  5  Denio  (N.  Y.)  619 
(1846)  ;  Grooms  v.  Dixon,  5  Strob.  (S.  Car.)  149  (1850)  ;  Wilson.  Sieaer  & 
Cofs  At>t>eal.  13  Pa.  St.  426  ( 1850)  ;  Rtittan  v.  Lcvisconte,  16  U.  C.  Q.  B.  495 
riSTr)  :  SchuylktU's  Af)t>cnl.\n'?7i.  St.  ^^8  (1858)  ;  State  v.  Blnndin,  32  Mo. 
387  ( 1862)  ;  Roth  V.  IVells,  29  N.  Y.  471  (1864)  ;  Carrier  v.  Thompson,  11  S. 
Car.  79  (1878),  before  code;  Blatchford  v.  Boyden,  122  III.  657,  13  N.  E.  801 
(1887);  Clifford  V.  Logan,  9  Manitoba  423  (1894);  Second  Nat.  Bank  v. 
Gilbert,  174  II!.  485,  51  N.  E.  584,  66  Am.  St.  306  (1898)  ;  Boisseau  v.  Bass, 


-04  EXECUTION 

SECTION  4.     THE  LEVY 

SEMAVXI^'S    CASE 

In  the  King's  Bench,  1604 

5  Coke  91  '* 

In  an  action  on  the  case  by  Peter  Semayne,  plaintiff,  and  Richard 
Grcsham,  defendant,  the  case  was  such:  the  defendant  and  one 
George  Berisford  were  joint  tenants  of  a  house  in  Blackfriars  in 
London  for  years;  George  Berisford  acknowledged  a  recognizance 
in  tjie  nature' of  a  statute-staple  to  the  plaintiff,  and  being  possessed 
of  divers  goods  in  the  said  house  died,  by  which  the  defendant  was 
possessed  of  the  house  by  survivorship,  in  which  the  goods  continued 
and  remained ;  the  plaintiff  sued  process  of  extent  on  the  statute  to 
the  sheriffs  of  London;  the  sheriffs  returned  the  conusor  dead,  on 
which  the  plaintiff  had  another  writ  to  extend  all  the  lands  which  he 
had  at  the  time  of  the  statute  acknowledged,  or  at  any  time  after, 
and  all  his  goods  vrhich  he  had  at  the  day  of  his  death ;  which  writ 
the  plaintiff  delivered  to  the  sheriffs  of  London  and  told  them  that 
divers  goods,  which  were  the  said  George  Berisford's  at  the  time  of 
his  death,  were  in  the  said  house;  and  thereupon  the  sheriffs,  by 
virtue  of  the  said  writ,  charged  a  jury  to  make  inquiry  according 
to  the  said  writ,  and  the  sheriffs  and  jury  accesserunt  ad  domum 

100  Va.  207,  40  S.  E.  647,  57  L.  R.  A.  380,  93  Am.  St.  956  (1902)  ;  Birch  River 
Boom  &c.  Co.  V.  Glendon  Boom  &c.  Co.,  71  W.  Va.  507,  76  S.  E.  972  (1912)  ; 
Pastel!  V.  Avery,  12  Ga.  App.  507,  77  S.  E.  666  (1913).  Articles  acquired  after 
the  return  of  the  writ  are  not  bound.  Lloyd  v.  U'yckoff,  11  N.  T.  L.  218  (1830)  ; 
Mathews  v.  Warne,  il  N.  J.  L.  295  (1830)  ;  Cook  v.  Wood,  16  N.  J.  L.  254 
(1837)  ;  FrrrA  v.  Copnlnnd.  i8  W.  N.  C.  (Pa.)  94  (1886).  And  a  specific  lien 
acquired  by  a  levy  on  particular  property  will  not  bind  after-acquired  property. 
Caldwell  V.  Fificld,  24  N.  J.  L.  150  (1853)-  "Where  the  sheriff  levies  on  a 
specific  article,  or  articles,  namint?  them,  without  more,  he  will  be  confined  to 
his  lew ;  as  for  example,  where  he  levies  on  a  horse,  he  will  not  be  permitted 
to  sell  a  cow,  or  other  article  of  property."  IVilson.  Sicncr_Co.'s  Appeal,  13 
Pa^  St.  426  (i8;o).,  The  lien  of  an  execution  on  domestic  animals  attaches 
to  their  young  after  they  are  born.  Talbot  v.  Magce,  59  Mo.  App.  347 
(1894).  Compare:  Blum  v.  Light,  81  Tex.  414,  16  S.  W.  1090  (1891).  So  a 
levy  on  sheep  includes  the  wool  that  may  prow  during  the  existence  of  the  lien 
of  the  execution.   Young  v.  Williams,  21  N.  Y.  W.  Dig.  249  (1885). 

The  lien  of  an  execution  without  levy  expires  with  the  return  day. 
Cook  V.  Wood,  16  N.  J.  L.  254  (1837);  Hathwav  v.  Howell,  54  N.  Y.  97 
(1873)  ;  Sttiraes'  Appeal  86  Pa.  St.  di^  (1878)  ;  Walker  v.  FIcnry,  85  N.  Y. 
130  (iFRiTf^^rJsLjMin^r,  200  Pa.  ^89  (lOQi)  ;  Olden  v.  Sassman,  72  N.  J. 
Eq.  637,  66  All.  603  (1907).  But  by  levy  on  personalty  the  officer  acquires  a 
special  property  in  the  goods  seized  which  he  may  sell  before  or  after  the 
return  day  in  satisfaction  of  the  writ.  Religious  Society  oj_Roman  Catholigs 
V.  HilrhrorJi,  2  Browne  (Pa.)  333  (l8n);  laylor  v.  Mnmford,  3  Humph. 
(Tenn.T"66(i842)  ;  West  v.  Shocklev,  4  Harr.  (Del.)  287  (1845)  ;  Paxsoi^s 
Appeal,  49  Pa.  St.  lo^  (i860  ;  Herrcll  v.  Sizcland,  81  111.  457  (1876)  ;  Spencer 
VTIaug,  45  Minn.  231,  47  N.  W.  794  (1801)  ;  Ansonia  Brass  &c.  Co.  v.  Con- 
ner. 103  N.  Y.  502,  9  N.  E.  238,  II  Civ.  Proc.  R.  371  (1886). 

'*Same  case  Cro.  Eliz.  908;  Yelv.  28;  F.  Moore  668;  i  Smith's  L.  Ca. 
(nth  ed.)   104. 


semayne's  case  705 

praedictam,  ostio  domus  praedict'  aperto  existen'  et  bonis  praedictis 
in  praedicta  domo  tunc  existen'  and  they  offered  to  enter  the  said 
house,  to  extend  the  goods  according  to  the  said  writ;  and  the 
defendant  praemissorum  non  ignarus  intending  to  disturb  the  execu- 
tion, ostio  praed'  domus  tunc  aperto  existen',  claudebat  contra  vice- 
corn'  &  jurator'  praed';  whereby  they  could  not  come,  and  extend 
the  said  goods,  nor  the  sheriff  seize  them,  by  which  he  lost  the  benefit 
and  tlie  profit  of  his  writ,  etc.  And  in  this  case  these  points  v/ere 
resolved : 

1.  That  the  house  of  every  one  is  to  him  as  his  castle  and  fortress, 
as  well  for  his  defense  against  injury  and  violence,  as  for  his 
repose  f^  and  although  the  life  of  a  man  is  a  thing  precious  and  fav- 
ored in  law ;  so  that  although  a  man  kills  another  in  his  defense,  or 
kills  one  per  infortun,  without  any  intent,  yet  it  is  felony,  and  in 
such  case  he  shall  forfeit  his  goods  and  chattels,  for  the  great  regard 
which  the  law  has  to  a  man's  life ;  but  if  thieves  come  to  a  man's 
house  to  rob  him,  or  murder,  and  the  owner  or  his  servants  kill  any 
of  the  thieves  in  defense  of  himself  and  his  house,  it  is  not  felony, 
and  he  shall  lose  nothing,  and  therewith  agree  3  E.  3.  Coron.  303, 
305,  and  26  Ass.  pi.  23.  So  it  is  held  in  21  H.  7,  39,  every  one  may 
assemble  his  friends  and  neighbors  to  defend  his  house  against  vio- 
lence; but  he  can  not  assemble  them  to  go  with  him  to  the  market 
or  elsewhere  for  his  safeguard  against  violence;  and  the  reason  of 
all  this  is,  because  domus  sua  cuique  est  tutissimum  refugium. 

2.  It  was  resolved,  when  any  house  is  recovered  by  any  real 
action,  or  by  eject'  firmae,  the  sheriff  may  break  the  house  and  de- 
liver the  seisin  or  possession  to  the  demandant  or  plaintiff  for  the 
words  of  the  writ  are,  habere  facias  seisinam,  or  possessionem,  and 
after  judgment  it  is  not  the  house  in  right  and  judgment  of  law  of 
the  tenant  or  defendant.''^ 

3.  In  all  cases  when  the  king  is  party,  the  sheriff*,  if  the  doors 
be  not  open,  may  break  the  party's  house,  either  to  arrest  him  or  to 
do  other  execution  of  the  king's  process,  if  otherwise  he  can  not 
enter.   But  before  he  breaks  it,  he  ought  to  signify  the  cause  of  his 

'^"The  forbearance  of  the  borovigh  law  in  refusing  to  allow  officers 
to  enter  a  burgess's  house  to  arrest,  attach  or  distrain,  vv'as  the  forbearance 
of  early  folk-law,  which  made  a  man's  house  his  castle,  or  rather  his  temple, 
for  the  sanctity  of  the  house  seems  to  have  been  due  to  the  religious  origin 
of  the  house-peace."  Bateson,  Introduction  to  Borough  Customs,  Vol.  ll, 
Selden  Society.   See  Cicero  Pro  Domo,  41. 

London  (1122),  Liber  Albus,  p.  69.  "De  quihus  ita  solet  esse  quod 
acctisati  non  solcnt  attachiari  nisi  in  medio  vico  et  in  via;  quia  non  in  domibus 
nee  sub  appenticiis." 

Northampton  {circa  1 190),  Custumal,  I,  cap.  19,  §  i.  "Nullus  hallivus 
potest  capere  naman  in  domo  probi  hominis  neqiie  super  stallis  ejus  pro  aliquo 
planctu  neqiie  pro  nllo  debito  nisi  pro  dcbito  domini  regis  nisi  per  judicium 
quod  pcrtinct  ad  coronam  domini  regis."  Borough  Customs,  Selden  So- 
ciety, Vol  I,  p.  103. 

"Accord:  Hozve  v.  Butterficld,  58  Mass.  (4  Cush.)  303,  50  Am.  Dec.  785 
(1849).  See  note  to  Upton  v.  Wells  infra  page  810.  So  also  where  the  writ  is 
for  the  recovery  of  specific  chattels.  Keith  v.  Johnson,  i  Dana  (31  Ky.)  604, 
25  Am.  Dec.  167-n  (1833)  ;  Hou'e  v.  Oyer,  50  Hun  559,  3  N.  Y.  S.  726,  20  N.  Y. 
St.  685  (1880)  :  Jones  V.  Herron.  i  Pa.  Dist.  R.  4)7^  (1892).  Contra:  State  v. 
Beckner,  132  Ind.  371,  31  N.  E.  950,  32  Am.  St.  257  (1892). 

45 — Civ.  Proc. 


-o5  EXECUTION 

comiiK.  an.d  to  make  request  to  open  doors ;  and  that  appears  well  by 
the  statute  of  Westni.  I.  ch.  17  (which  is  but  an  affirmance  of  the 
common  law)  as  hereafter  appears,  for  the  law  without  a  default  in 
the  owner  abhors  the  destruction  or  breaking  of  any  house,  which 
is  for  the  habitation  and  safety  of  man,  by  which  great  damage 
and  inconvenience  might  ensue  to  the  party,  when  no  default  is  in 
him;  for  perhaps  he  did  not  know  of  the  process,  of  which  if  he 
had  notice,  it  is  to  be  presumed  that  he  would  obey  it;  and  that 
appears  by  the  book  in  18  E.  2  Execut.  252,  where  it  is  said  that 
the  king's  officer  who  comes  to  do  execution,  etc.,  may  open  the 
doors  which  are  shut,  and  break  them,  if  he  can  not  have  the  keys ; 
which  proves,  that  he  ought  first  to  demand  them,  7  E.  3,  16.  J  beats 
R  so  as  he  is  in  danger  of  death,  J  flees,  and  thereupon  hue  and  cry 
is  made,  T  retreats  into  the  house  of  T  they  who  pursue  him,  if  the 
house  be' kept  and  defended  by  force  (which  proves  that  first  re- 
quest ought  to  be  made)  may  lawfully  break  the  house  of  T  for  it  is 
at  the  king's  suit.   27  Ass.  p.  66,  the  king's  bailiff  may  distrain  for 
issues  in  a  sanctuary.   27  (28)  Ass.  p.  35,  by  force  of  a  capias  on 
an  indictment  of  trespass  the  sheriff  may  break  his  house  to  arrest 
him ;  but  in  such  case,  if  he  breaks  the  house  when  he  may  enter 
without  breaking  it  (that  is  on  request  made,  or  if  he  may  open 
the  door  witliout  breaking),  he  is  a  trespasser,  41  Ass.  15,  on  issue 
joined  on  a  traverse  of  an  office  in  chancery,  venire   facias  was 
awarded  returnable  in  the  king's  bench,  without  mentioning  non 
omittas  propt'  aliquam  libertat' ;  yet  forasmuch  as  the  king  is  party, 
the  writ  of  itself  is  non  omittas  propt'  aliquam  libertat',  9  E.  4,  9, 
for  felony  or  suspicion  of  felony,  the  king's  officer  may  break  the 
house  to  apprehend  tlie  felon,  and  that  for  two  reasons:      i.  For 
the  commonwealth,  for  it  is  for  the  commonwealth  to  apprehend 
felons.    2.   In  every  felony  the  king  has  interest,  and  where  the 
king  has  interest  the  writ  is  non  omittas  propter  aliquam  libertatem ; 
and  so  the  liberty  or  privilege  of  a  house  doth  not  hold  against  the 
king.^^ 

4.  In  all  the  cases  when  the  door  is  open  the  sheriff  may  enter 
the  house,  and  do  execution,  at  the  suit  of  any  subject,  either  of  the 
body  or  of  the  goods ;  and  so  may  the  lord  in  such  case  enter  the 
house  and  distrain  for  his  rent  or  service,  38  H.  6,  26a.  8  E.  2 
Distr.  21  &  33  E.  3.  Avow.  256,  the  lord  may  distrain  in  the 
house,  although  lands  are  also  held  in  which  he  may  distrain.^^ 
Vide  29  Ass.  49.    But  the  great  question  in  this  case  was,  if  by 


"Accord:  Brigcfs  Case,  1  Rolle  336  (1615)  ;  Burdett  v.  Abbott,  14  East  I 
(1811)  ;  Laiinock  v.  Brown,  2  B.  &  Aid.  592  (1819)  ;  Harvey  v.  Harvey,  L.  R. 
(1881)  26  Ch.  Div.  644. 

'■^Ryan  v.  Shilcock,  7  Exch.  72  (1851),  holds  that  the  lifting  of  the 
fastening  by  which  a  door  is  kept  closed  is  not  unlawful  in  making  a  distress, 
Pollock,  C.  B.,  saying:  "The  landlord  has  authority  by  law  to  open  the  door 
in  the  ordinary  way  in  which  other  persons  can  do  it,  when  it  is  left  so  as 
to  be  accessible  to  all  who  have  occasion  to  go  on  the  premises."  Accord :  Dent 
V.  Hancock,  5  Gill  (Md.)  120  (1847).  Contra:  Curtis  v.  Hubbard,  4  Hill 
(N.  Y.)  437,  40  Am.  Dec.  292  (1842).  See  State  v.  Arm  field,  2  Hawks 
(N.  Car.)  246,  II  Am.  Dec.  762  (1822)  ;  Long  v.  Clarke,  L.  R.  (1894)  i  Q-  B. 
119. 


semayne's  case  707 

force  of  a  capias  or  fieri  facias  at  the  suit  of  the  party  the  sheriff, 
after  request  made  to  open  the  door,  and  denial  made,  might  break 
the  defendant's  house  to  do  execution  if  the  door  be  not  opened.  And 
it  was  objected,  that  the  sheriff  might  well  do  it  for  divers  causes. 

1.  Because  it  is  by  process  of  law;  and  it  was  said,  that  it  would  be 
granted  on  the  other  side,  that  a  house  is  not  a  liberty,  for  if  a 
fieri  facias  or  a  capias  be  awarded  to  the  sheriff  at  the  suit  of  a  com- 
mon person,  and  he  makes  a  mandate  to  the  bailiff  of  a  liberty  who 
has  return  of  writs,  who  nullum  dedit  lespons'  in  that  case  another 
writ  shall  issue  with  non  omittas  propter  aliquam  libertatem ;  yet  it 
will  be  said  on  the  other  side  that  he  shall  not  break  the  defendant's 
house  as  he  shall  do  of  another  liberty;  for  whereas  in  the  county 
of  Suffolk  there  are  two  liberties,  one  of  St.  Edmund  Bury,  and 
the  other  of  St.  Etheldred  of  Ely,  suppose  a  capias  comes  at  the 
suit  of  A,  to  the  sheriff  of  Suffolk  to  arrest  the  body  of  B,  the 
sheriff  makes  a  mandate  to  the  bailiff  of  the  liberty  of  St.  Ethel- 
dred, who  makes  no  answer,  in  that  case  the  plaintiff  shall  have  a 
writ  of  non  omittas,  and  by  force  thereof  he  may  arrest  the  defend- 
ant within  the  liberty  of  Bury,  although  no  default  was  in  him. 

2.  Admitting  it  to  be  a  liberty,  the  defendant  himself  shall  never 
take  advantage  of  a  liberty ;  as  if  the  bailiff  of  a  liberty  be  defendant 
in  any  action,  and  process  of  capias  or  fieri  facias  comes  to  the  sher- 
iff against  him,  the  sheriff  shall  execute  the  process  against  him ;  for 
a  liberty  is  always  for  the  benefit  of  a  stranger  to  the  action.  3.  For 
necessity  the  sheriff  shall  break  the  defendant's  house  after  such 
denial  as  is  aforesaid,  for  at  the  common  law  a  man  should  not 
have  any  execution  for  debt,  but  only  of  the  defendant's  goods.  Sup- 
pose then  the  defendant  would  keep  all  his  goods  in  his  house,  and 
so  the  defendant  himself  by  his  own  act  would  prevent  not  only  the 
plaintiff  of  his  just  and  true  debt,  but  there  would  also  be  a  great 
imputation  to  the  law,  that  there  should  be  so  great  a  defect  in  it, 
that  in  such  case  the  plaintiff  by  such  shift  without  any  default  in 
him  should  be  barred  of  his  execution.  And  the  book  in  18  E.  2. 
Execution  252,  was  cited  to  prove  it  where  it  is  said,  that  it  is  not 
lawful  for  any  one  to  disturb  the  king's  officer,  who  comes  to  execute 
the  king's  process ;  for  if  a  man  might  stand  out  in  such  manner,  a 
man  would  never  have  execution,  but  there  it  appears  (as  has  been 
said)  that  tliere  ought  to  be  request  made  before  the  sheriff  breaks 
the  house.  4.  It  was  said,  that  the  sheriffs  were  officers  of  great  au- 
thority, in  whom  the  law  reposed  great  trust  and  confidence,  and 
are  to  be  of  sufficiency  to  answer  for  all  wrongs  Mdiich  should  be 
done ;  and  they  had  custodiam  comitat,  and  therefore  it  should  not  be 
presumed  that  they  would  abuse  the  house  of  any  one  by  color  of 
doing  their  office  in  execution  of  the  king's  writ  against  the  duty  of 
their  office,  and  their  oath  also,  but  it  was  resolved,  tliat  it  is  not  law- 
ful for  the  sheriff  (on  request  made  and  denial)  at  the  suit  of  a 
common  person,  to  break  the  defendant's  house,  sc.  to  execute  any 
process  at  the  suit  of  any  subject;  for  thence  would  follow  great  in- 
convenience that  men  as  well  in  the  night  as  in  the  day  should  have 
their  houses  (which  are  their  castles)  broke,  by  color  whereof,  great 
damage  and  mischief  might  ensue;  for  by  color  thereof,  on  any 


708  EXECUTION 

fcigfiied  suit,  the  house  of  any  man  at  any  time  might  be  broke 
when  the  dofcndant  niijj;ht  be  arrested  elsewhere,  and  so  men  would 
not  be  in  safety  or  quiet  in  their  own  houses.''*  And  although  the 
shcritY  be  an  officer  of  great  authority  and  trust,  yet  it  appears  by 
cxi^erience,  that  the  king's  writs  are  served  by  bailiffs,  persons  of 
little  or  no  value ;  and  it  is  not  to  be  presumed,  that  all  the  substance 
a  man  has  in  his  house,  nor  that  a  man  would  lose  his  liberty,  which 
is  so  inestimable,  if  he  has  sufficient  to  satisfy  his  debt.  And  all 
the  said  books,  which  prove,  that  when  the  process  concerns  the 
king,  that  the  sheriff  may  break  the  house,  imply  that  at  the  suit 
oi  the  party,  th.e  house  may  not  be  broken,  otherwise  the  addition 
(at  the  suit  of  the  king)  would  be  frivolous.  And  wnih  this  resolu- 
tion agrees  the  book  in  13  E.  4.  9,  and  the  express  difference  tliere 
taken  between  the  case  of  felony,  which  (as  has  been  said)  con- 
cerns the  commonwealth,  and  the  suit  of  any  subject,  which  is  for 
the  particular  interest  of  the  party,  as  tliere  it  is  said  in  18  E.  4.  4a. 
bv  Littleton  and  all  his  companions  it  is  resolved  that  the  sheriff 
can  not  break  the  defendant's  house  by  force  of  a  fieri  facias,  but  he 
is  a  trespasser  by  the  breaking,  and  yet  the  execution  which  he  then 
doth  in  the  house  is  good.^°  And  it  was  said,  that  the  said  book 
of  18  E.  2  was  but  a  short  note,  and  not  any  case  judicially  ad- 


'■"PoUon  V.  Brozvn,  I  Keb.  698,  I  Sid.  186  (1664)  ;  Anonymous,  6  Mod. 
105  (1703)  ;  Biickcnham  v.  Francis,  II  Moore  40  (1825)  ;  Ilslry  v.  Nichols, 
12  Pick.  (Mass.)  270,  22  Am.  Dec.  425  (1831)  ;  Keith  v.  Johnson,  I  Dana 
(31  Ky.)  604,  25  Am.  Dec.  167-n  (1833)  ;  Prcttyman  v.  Dean,  2  Harr.  (Del.) 
4Q4  (1839)  ;  State  v.  Hooker,  17  Vt.  658  (1845)  ;  Hooker  v.  Smith,  19  Vt.  151, 
47  Am.  Dec.  679  (1847)  ;  Snvdaker  v.  Brosse,  51  111.  357,  99  Am.  Dec.  551 
(1869)  ;  Welsh  v.  Wilson,  34  Minn.  92,  24  N.  Vv''.  327  (1885)  ;  State  v.  Whit- 
aker,  107  N.  Car.  802,  12  S.  E.  456  (1890)  ;  Jones  y^H_erron,  i  Pa.  Dist.  R. 
475  (1892).  But  the  shcriflf  maj'  break  open  the  outer  door  of  a  workshop  or 
other  building  not  part  of  the  d'.vclling.  Pent  on  V.  Bro-ik'n,  supra;  Haggerty 
&  Kohlcs  V.  'Wilbcr,  16  Johns.  (N.  Y.)  287,  8  Am.  Dec.  321  (1810)  McGce  v. 
Givan,  4  Blackf.  (Ind.)  16  (1835)  ;  Hobson  v.  Thelluson,  L.  R.  (1867)  2  Q.  B. 
642;  Stearns  v.  Vincent,  50  Mich,  209,  15  N.  W.  86,  45  Am.  Rep.  37  (1883)  ; 
H odder  v.  Williams,  L.  R.  (1895)  2  Q.  B.  663.  Wliere  a  sheriff  gains  peace- 
ful entrance,  he  may  break  open  inner  doors  and  closets  if  they  are  not 
opened  on  demand.  King  v.  Bird,  2  Show.  87  (1680)  ;  Stale  v.  Thackam,  i  Bay 
(S.  Car.)  358  (1794)  ;  Ratcliffe  v.  Burton,  3  Bos.  &  P.  223  (1802)  ;  Hutchison 
V.  Birch,  4  Taunt.  619  (1S12).  In  Szcain  v.  Mi::ner,  74  Mass.  182,  69  Am.  Dec. 
244  (1857),  where  a  building  was  leased  in  distinct  portions  to  several  ten- 
ants, the  slieriff  who  had  entered  the  outer  door  was  held  to  have  no  authority 
to  break  into  one  of  the  apartments.  Contra:  Cantrell  v.  Conner,  6  Daly 
(N.  Y.)  39  (1875),  and  contra  in  the  case  of  a  lodger;  Fee  v.  Gansel,  I  Cowp. 
I  (1774)  ;  Williams  v.  Spencer,  5  Johns.  (N.  Y.)  352  (1810). 

'"Accord:  Pcrcival  v.  Stamp,  9  Exch.  167  (1853).  Compare  D^ike  of 
Brunswick  V.  Slou.<n:an,  8  C.  B.  319  (1849).  An  arrest  on  civil  process  after 
breaking  the  outer  door  entitles  the  debtor  to  his  release.  Hodgson  v.  Town- 
ing,  5  Dowl.  410  (1836)  ;  Kerbey  v.  Denby,  I  M.  &  W.  336  (1836)  ;  Slate  v. 
Hooker,  17  Vt.  658  (1845).  Otherwise  where  the  debtor  has  been  arrested 
and  closes  the  door.  Mahomed  v.  Queen,  4  !Moore  P.  C.  239  (1843)  ;  Sandon 
V.  Jervis,  E.  B.  &  El.  935  (18^9).  The  dictum  in  the  principal  case  is  criti- 
cised in  Curtis  V.  Hubbard,  4  liill.  (N.  Y.)  437,  40  Am.  Dec.  292  (1842),  where 
an  execution  after  an  illegal  entry  was  held  invalid.  Accord  :  Ilsley  v.. Nichols, 
12  Pick.  (Mass.)  270,  22  Am.  Dec.  425  (1831)  ;  People  v.  Hubbard,  24  Wend. 
(N.  Y.)  369,  35  Am.  Dec.  628  (1840)  ;  Closson  v.  Morrison,  47  N.  H.  482, 
P3  Am.  Dec.  459  (1867);  Bailey  v.  Wright,  39  Mich.  96  (1878);  Welsh  v. 
Wilson,  34  Minn.  92,  24  N.  \\.  327  (1885). 


semayne's  case  709 

judged,  and  it  doth  not  appear  at  whose  suit  the  case  is  intended, 
but  it  is  an  observation  or  collection  (as  it  seems)  of  the  reporter. 
And  if  it  be  intended  of  a  quo  minus  or  other  action  in  which  the 
king  is  party,  or  is  to  have  benefit,  the  book  is  good  law. 

5.  It  was  resolved,  that  the  house  of  any  one  is  not  a  castle 
or  privilege  but  for  himself,  and  shall  not  extend  to  protect  any 
person  who  flies  to  his  house,  or  the  goods  of  any  other  which  are 
brought  and  conveyed  into  his  house,  to  prevent  a  lawful  execu- 
tion, and  to  escape  the  ordinary  process  of  law;  for  the  privilege 
of  his  house  extends  only  to  him  and  his  family,  and  to  his  own 
proper  goods,  or  to  those  which  are  lawfully  and  without  fraud 
and  covin  there  ;^^  and  tlierefore  in  such  cases  after  denial  on  re- 
quest made,  the  sheriff  may  break  the  house ;  and  that  is  proved 
by  the  statute  of  Westm.  i.  c.  17,  by  which  it  is  declared,  that  the 
sheriff  may  break  a  house  or  castle  to  make  replevin,  when  the  goods 
of  another  which  he  has  distrained  are  by  him  conveyed  to  his 
house  or  castle,  to  prevent  the  owner  to  have  a  replevin  of  his  goods ; 
which  act  is  but  an  affirmance  of  the  common  law  in  such  points. 
But  it  appears  there,  that  before  the  sheriff  in  such  case  breaks  the 
house,  he  ought  to  demand  the  goods  to  be  delivered  to  him  for  the 
words  of  the  statute  are,  "after  that  the  cattle  shall  be  solemnly  de- 
manded by  the  sheriif,"  etc.  ".t^ 

6.  It  was  resolved,  admitting  that  the  sheriff,  after  denial  made, 
might  have  broke  the  house,  as  the  plaintiff's  counsel  pretended  he 
might,  then  it  follows  that  he  has  not  done  his  duty,  for  it  doth  not 
appear,  that  he  made  any  request  to  open  the  door  of  the  house. 
Also  the  defendant,  as  this  case  is,  has  done  that  which  he  might 
well  do  by  the  law,  scil.  to  shut  the  door  of  his  ov/n  house. 

"Lastly,  the  general  allegation,  praemisorum  non  ignarus,  was 
not  sufficient  in  this  case  where  the  notice  of  the  premises  is  so 
material;  but  in  this  case  it  ought  to  have  been  certainly,  and  di- 
rectly alleged;  for  without  notice  of  the  process  of  law,  and  of  the 
coming  of  the  sheriff  with  the  jury  to  execute  it,  the  shutting  of  the 
door  of  his  own  house  was  lawful.  And  judgment  v/as  given  against 
the  plaintiff. 

"The  debtor's  dwelling  house  is  alone  privileged.  The  sheriff  may- 
break  the  outer  door  of  a  third  person's  house  to  execute  a  fieri  facias 
against  the  debtor,  but  he  acts  at  his  peril  and  if  there  are  no  goods  of  the 
debtor  on  the  premises,  he  is  a  trespasser.  Biscop  v.  White,  Cro.  Eliz.  759 
(1600)  ;  White  v.  Whitshire,  Palm.  52  (161Q)  ;  Stanhope  v.  Daivson,  2  Lutw. 
1428  (1736);  Johnson  v.  Leigh,  l  Marshall  565,  6  Taunt.  246  (1815)  ; 
De  Graff enreid  v.  Mitchell,  3  McCord  (S.  Car.)  506,  15  Am.  Dec.  648  (1826)  ; 
Fullerton  v.  Mack,  2  Aik.  (Vt.)  415  (1828);  Douglass  v.  State,  6  Yerg. 
(Tenn.)  525  (1834);  Stitt  v.  Wilson,  Wright  (Ohio)  505  (1834);  Piatt  v. 
Brown,  16  Pick.  (Mass.)  553  (1835);  McGee  v.  Givan,  4  Blackf.  (Ind.)  16 
(1835)  ;  Morrish  V.  Murrey,  13  M.  &  W.  52  (1844)  ;  Burton  v.  Wilkinson,  18 
Vt.  186,  46  Am.  Dec.  145  (1846).  So,  as  to  a  box  in  a  trust  company,  United 
States  v.  Graff,  67  Barb.  (N.  Y.)  304,  4  Hun  634  (1875)  ;  Klett  v.  Craig,  i 
W  N.  C  (Pa.)  28  (187.^)  :  Tilling  hast  v.  Johnson,  34  R.  iri3'5782  Atl.  7§8 
~nm2).  Compare  Gregg  v.  Hilson.S  Phila.  (Pa.)  91  (1871). 


7IO  EXECUTION 

DUNCAN'S  APPEAL 
Supreme  Court. of  PEim5YLVANiAi^6o 

37  Pa.  500 

This  was  an  appeal  from  the  decree  of  the  Common  Pleas  of 
Camliiia  County,  confirming  the  report  of  the  auditor,  appointed 
to  distribute  the  proceeds  of  the  sheriff's  sale  of  tlie  personal  prop- 
erty of  George  McCann. 

The  facts  are  these :  A  writ  of  fieri  facias  was  issued  out  of 
the  Court  of  Common  Pleas  of  Cambria  Count)',  upon  a  judgment 
in  favor  of  Francis  Christy,  against  the  defendant,  George  ]\IcCann, 
and  placed  in  the  sheriff's  hands  on  the  twenty-fifth  of  July,  1859. 
On  the  twent3'-ninth  of  August,  1859,  four  other  writs  of  fieri  facias 
were  issued  and  placed  in  the  hands  of  the  sheriff — one  at  tlie  suit  of 
Thomas  Duncan ;  one  at  the  suit  of  Peter  Ford ;  one  at  the  suit  of 
A.  H.  Rosenheimer  &  Brook;  and  the  other  at  the  suit  of  Mrs.  Sarah 
Duncan,  upon  which  the  sheriff  on  the  said  day,  indorsed  the 
following  levy:  "August  29,  1859,  levied  on  a  planing  machine, 
with  all  the  fixtures  thereto  belonging,  as  the  property  of  George 
!McCann.  The  above  levy  given  in  by  John  Fenelon,  Esq.,  at  Ebens- 
burg."  On  the  same  day  (also  at  Ebensburg)  the  sheriff  indorsed 
the  same  levy  on  the  writ  in  favor  of  Francis  Christy.  On  the 
fifth  day  of  September,  1859,  a  writ  of  fieri  facias,  at  the  suit  of 
Morris  L.  Ilallowell  &  Co.  against  the  same  defendant  (McCann) 
was  placed  in  the  sheriff's  hands  on  said  day  at  seven  o'clock  a.  m., 
on  which,  on  the  nineteenth  day  of  the  same  month,  the  sheriff  made 
a  levy  (inter  alia)  of  the  said  "planing  machine,  wdth  all  the  fixtures 
thereto  belonging,"  being  at  the  time,  where  the  property  was,  and 
having  it  in  view.  On  the  said  nineteenth  of  September  the  sheriff 
advertised  the  property,  and  sold  the  "planing  machine"  on  the  twen- 
ty-eighth of  September,  1859,  for  $500.  An  auditor  appointed  to 
make  distribution  of  the  proceeds  of  the  sale  awarded  the  fund  to 
IMorris  L.  HoUowell  &  Co.,  fi.rst  satisfying  (with  the  consent  of  the 
attorney  for  Hallowell  &  Co.)  the  balance  of  the  writ  in  favor  of 
Christ)'.  This  appeal  was  then  taken  by  the  execution-creditors, 
whose  claims  were  rejected  by  the  auditor  and  the  court,  who  as- 
signed for  error  here  the  confirmation  of  the  auditor's  report.^^ 

Strong,  J. :  It  is  plain  that  the  levy  indorsed  upon  the  appellant's 
execution  on  the  twenty-ninth  of  August,  1859,  and  also  upon  the 
other  writs  returnable  to  September  term,  was  of  no  avail  against 
subsequent  execution-creditors.  Whatever  may  have  been  its  effect 
as  between  the  sheriff  and  George  McCann,  the  debtor,^^  it  was  no 


"Part  of  the  statement  of  facts  and  the  arguments  of  counsel  are  omitted. 

""It  has  been  held  that  the  endorsement  of  a  levy  upon  property  not 
in  view  may  be  good,  as  between  the  parties,  where  the  judgment  debtor 
assents.  McGirr  V.  Hunter,  13  111.  App.  195  (1883);  Trovillo  v.  Tilford,  6 
Watts  (Pa.)  46S,  31  Am.  Dec.  484  (1837);  Dresser  v.  Ainszvorth,  g  Barb. 
CN.  Y.)  619  (1050)  ;  Rliame  v.  McRoy,  7  Rich.  (S.  Car.)  2i7  (1853)  ;  Caldzvell 


DUNCAN'S    APPEAL  7II 

levy  at  all,  to  create  a  lien  upon  the  planing  machine,  as  against 
the  appellees.  In  no  sense  can  it  be  said  to  have  been  a  seizure,  either 
actual  or  constructive.  The  property  was  neither  in  the  power  nor 
in  the  view  of  the  sheriff.  It  was  ten  miles  distant,  and  was.  not 
seen  by  the  officer  until  after  the  return  day  of  the  executions,  when 
he  had  no  power  to  make  or  complete  a  levy  under  them.  Nor  was 
it  seen  by  him  until  he  made  an  actual  levy  under  the  execution  or 
the  appellees. 

We  have  departed  from  the  strictness  required  by  the  English 
courts  to  constitute  a  levy.^*  We  do  not  require  the  sheriff  in  all 
cases  to  take  actual  and  exclusive  possession  of  personal  property, 
but  it  never  yet  has  been  held  that  a  levy  can  be  made  upon  prop- 
erty not  in  the  power  or  at  least  in  the  view  of  the  officer.  The 
indorsement  upon  an  execution  is  itself  no  levy;  it  is  but  evidence. 
The  levy  is  an  assertion  of  title  by  the  sheriff,  amounting  at  least 
to  a  legal  divestiture  of  the  possession  of  the  defendant,  and  such 
as  would  subject  the  officer  making  it  to  an  action  of  trespass,  but 
for  the  protection  of  the  execution.  It  should  be  public,  open  and 
unequivocal,  not  depending  for  proof  of  its  having  been  made  upon 
a  mere  office  entry.  This  is  necessary  in  order  to  prevent  fraud 
and  litigation  in  regard  to  the  title  to  property.  Secret  liens  are  a 
hardship  to  the  community,  and  are  not  to  be  encouraged. 

V.  Fifield,  24  N.  J.  L.  150  (1853);  Jayne  v.  Dillon,  28  Miss.  283  (1854); 
Roebuck  V.  Thornton,  19  Ga.  149  (1855)  ;  Dean  v.  Thatcher,  32  N.  J.  L.  470 
(1865) ;  Fox  V.  Cronan,  47  N.  J.  L.  493.  2  Atl.  414,  4  Atl.  314,  54  Am.  Rep.  190 
(1885).  Contra:  Perry  v.  Hardison,  99  N.  Car  21,  5  S.  E.  230  (1888)  semble; 
Crawford  v.  Newell,  23  Iowa  453  (1867). 

^^Rice  V.  Sergeant,  7  Mod.  27  (1702);  Bradley  v.  Wyndham,  1  Wils.  44 
(1743)  ;  Blades  v.  Ariindale,  i  M.  &  S.  711  (1813)  ;  Ackland  v.  Paynter,  8 
Price  95  (1820)  ;  Gladstone  v.  Padwick,  L.  R.  6  Exch.  203  (1871)  ;  Bissicks 
V.  Bath  Colliery  Co.,  L.  R.  2  Exch.  D.  459  (1877),  3  Exch.  D.  174  (1878); 
Ex  parte  Jones,  42  L.  T.  157,  (1880)  ;  Bower  v.  Hett,  L.  R.  (1895)  2  Q.  B.  51. 

In  Beekman  v.  Lansing,  3  Wend.  (N.  Y.)  446,  20  Am.  Dec.  707  (1830),  it 
is  said  per  Marcy,  J. :  "In  England  the  officer  enters  upon  the  premises  in 
which  the  defendant's  goods  are,  and  leaves  one  of  his  assistants  in  posses- 
sion of  them,  or  he  causes  an  inventory  to  be  taken  and  removes  them.  We 
are  not  disposed  to  go  this  length,  but  are  of  opinion  that  the  officer  should 
enter  upon  the  premises  where  the  goods  of  the  defendant  are,  and  take 
actual  possession  of  them,  if  they  are  such  of  which  possession  can  be  taken. 
The  goods  should  be  brought  within  his  view,  and  subjected  to  his  control, 
and  it  is  proper  also,  if  not  necessary,  that  an  inventory  should  be  taken  of 
them ;  the  officer  should  assert  his  title  to  the  goods  by  virtue  of  the  execu- 
tion ;  and  we  are  inclined  to  think  that  his  acts,  as  to  the  asserting  of  his  rights 
and  the  divesting  of  the  possession  of  the  defendant,  should  be  of  such  a 
character  as  would  subject  him  to  an  action  of  trespass  but  for  the  pro- 
tection of  the  execution;  they  should  be  public,  open  and  unequivocal,  and 
nothing  should  be  done  by  him  to  cast  concealment  over  the  transaction. 
But  it  is  not  necessary  that  an  assistant  of  the  officer  should  be  left  in  pos- 
session of  the  goods,  or  that  the  goods  should  be  removed;  they  may  be 
left  in  the  custody  of  the  defendant,  at  the  risk  of  the  plaintiff  or  of  the 
sheriff,  or  on  obtaining,  as  is  customarv,  a  receiptor  for  their  delivery  on 
demand."  See  also  Cox  v.  McDonaal.  2  Yeates  CPa.')  434  (1799);  IVestervelt 
V  Pmckney,  14  Wend.  (N.  Y.)  123,  28  Am.  Dec.  516  (1835)  ;  Moss  v.  Moore, 
3  Hill  (S.  Car.)  276  (1837)  ;  Williamson  v.  Johnston,  12  N.  J.  L.  86  (1830)  • 
Polite  v.  Jefferson,  5  Harr.  (Del.)  388  (1852)  ;  Ouackenhiish  v.  Henry,  42 
Mich.  75,  3  N.  W.  262  (1879)  ;  Auby  v.  Rathbiin,  11  S.  Dak.  474,  78  N.  W.  9=2 
(1899);  Gilfillan  v.  King,  239  Pa.  395.  86  Atl.  92.^  (1913). 


712  EXECUTION 

If  it  were  necessary  to  refer  to  .luthorities  for  the  doctrine 
tliat  a  levy  can  not  be  made  upon  personal  property  which  is  not  at 
the  time  in  the  power  of  the  officer,  so  that  he  can  take  immediate 
possession,  or  at  least  in  his  view,  such  authorities  arc  abundant 
and  at  hand.  It  was  said  in  ]]'ood  v.  J'anarsdale,  3  Rawle  (Pa.) 
401,  that  it  (a  levy  upon  such  property)  "can  not  be  made  without 
the  sheriff  has  it  within  his  power  and  control,  or  at  least  within  his 
view;  and  if  having  it  so  he  makes  a  levy  upon  it,  it  will  be  good 
if  followed  up  afterwards  within  a  reasonable  time  by  his  taking 
possession  in  such  manner  as  to  apprise  everybody  of  the  fact  of 
its  having  been  taken  in  execution."  It  would  seem  that  the  learned 
judge  who  delivered  the  opinion  in  that  case,  thought  that  to  make 
effective  such  a  constructive  seizure,  viz.,  an  assertion  of  title  to 
the  property  while  it  is  in  full  view  of  the  officer,  or  in  his  power, 
it  is  necessary  tliat  it  be  followed  up  within  a  reasonable  time  by 
taking  actual  and  notorious  possession.^^  Whether  the  levy  can 
be  thus  completed  after  the  return  day  of  the  w^it,  need  not  now 
be  considered,  for  in  tliis  case  the  goods  having  been  ten  miles  dis- 
tant, a  levy  was  not  commenced.  The  doctrine  of  IVood  v.  Vanars- 
dale  was  reasserted  in  Lozvrx  v.  Coidter,  9  Barr  (Pa.)  349,  and  in 
the  SchuylkUl  Court's  Appeal,  6  Cas.  (Pa.)  358. 

Such  also  are  the  decisions  in  other  states,  the  courts  of  which, 
like  ours,  have  departed  from  the  rigor  of  the  English  rule;  Hagerty 
V.  IVilber,  16  John.  (N.  Y.)  288;  Beeckman  v.  Lansing,  3  Wend. 
(N.  Y.)  440;  JVesterz'cltv.  Pinckney,  14  Wend.  (N.  Y.)  123;  l^aii- 
zvycke  v.  Pine,  2  Hill  (N.  Y.)  666;  Barker  v.  Binninger,  4  Kern. 
(N.  Y.)  271 ;  8  B.  l^.Tonr.  (Ky.)  300;  4  Wis.  573. 

Upon  principle  and  authority,  therefore,  it  must  be  held  that 
the  appellant  had  no  lien  upon  the  planing  machine  by  virtue  of 
any  levy,  and  as  his  execution  had  no  force  after  its  return  day 
without  a  levy,  the  writ  of  the  appellees  was  entitled  to  the  money 
arising  from  the  sale.  And  as  the  appellant  had  no  right  to  the 
money  he  can  not  be  heard  to  complain  that  a  portion  of  it  was  ap- 
plied to  the  execution  of  Francis  Christy,  with  the  consent  of  the 
appellees. ®° 

Decree  affirmed. 


1 


^Logsdon  v.  Spivey,  54  111.  104  (1870)  ;  Murphy  v.  Swadencr,  33  Ohio 
St.  85  (1877)  ;  Dixon  v^Vhiie  Scwbig  Mack.  Co.,  128  Pa.  St.  ?,q7^  18  Atl.  502, 
5  L.  R.  A.  659,  15  Am.  St.  683  (1889)  ;  In  re  Braden's  Estate^  165  Pa.^SL_ia4, 
30  Atl.  746  (1895)  ;  Trimble  v.  Hunt,  ibg  III.  App7~259  (1912)  ;  TTigdon  v. 
V/arrant  IVarchouse  Co.,  10  Ala.  App.  496,  63  So.  938  (1913)- 

"Accord:  Brian  v.  Strait,  Dud.  (S.  Car.)  19  (1837)  ;  Ray  v.  Harconrt,  19 
Wend.  (N.  Y.)  495  (1838)  ;  Van  Wyck  v.  Pine,  2  Hill  (N.  Y.)  666  (1842)  ; 
Morse  v.  Hiird,  17  N.  H.  246  (1845)  ;  Can-thorn  v.  McCraw,  g  Ala.  519  (1846)  ; 
Loziryy.  Coulter.  Q  Pa.  St.  t,j\q  (1848)  ;  CaJiip  v.  Chamberlain,  5  Den.  (N.  Y.) 
198  (1848)  ;  Broun  v.  I-'ratf,  4  Wis.  "513,  65  Am.  Dec.  330  (1856)  ;  Taffts  v. 
Manlove,  14  Cal.  47,  72>  Am.  Dec.  610  (1859)  ;  Minor  v.  Herriford,  25  111.  344 
(1861)  ;  Minor  v.  Smith,  13  Ohio  St.  79  (1861)  ;  Carey  v.  BrighUs^.VTX.^i. 
70  (1868,  per  Sharswood,  J..:  "A  mere  paper  levj'  is  no  levy  at  all,  and  a 
.<:ale  under  it  is  a  nullity  as  to  subsequent  execution-creditors  and  purchasers. 
A  man  mipht  have  his  bed  sold  from  under  him,  by  that  means  without  Icnow- 
inp  it")  ;  Nenvian  v.  Hook,  37  Mo.  207,  90  Am.  Dec.  378  (1866)  ;  Wilson  v. 
PozL'ers,  21  Minn.  193   (1S75);  Dorrier  v.  Masters,  83  Va.  459,  2  S.  E.  927 


MORGAN    V.    KIXNEY  713 

MORGAN  V.  KINNEY 

Supreme  Court  of  Ohio,  1883 

38  Ohio  St.  610 

LONGWORTH,  J. :  The  decision  in  this  case  depends  entirely  upon 
legal  issues,  the  judgment  below  having  been  rendered  upon  de- 
murrer. The  facts  of  the  case  are  correctly  stated  in  the  brief  of 
the  plaintiff  in  error,  and  are  as  follov/s : 

On  October  10,  1878,  the  defendants,  Gray  &  Smith,  obtained 
a  judgment  in  the  Court  of  Common  Pleas  of  Cuyahoga  County 
against  A.  W.  Anderson  and  others,  and  execution  was  at  once 
issued  thereon  to  the  sheriff  of  Belmont  County.  On  October  12, 
1878,  the  sheriff,  without  leaving  St.  Clairsville,  tv/elve  miles  dis- 
tant from  Bellaire,  indorsed  upon  the  writ  of  execution  in  his  hands, 
that  for  want  of  goods  and  chattels  whereon  to  levy,  he  levied  upon 
certain  real  estate,  describing  the  town  lots  in  Bellaire,  as  the  prop- 
erty of  A.  W.  Anderson.  But  no  record,  other  than  this,  was  made 
in  the  sheriff's  office;  and  no  entry  of  any  kind  was  made  on  the 
foreign  execution  docket,  until  after  the  filing  of  the  assignment 
deed  hereinafter  mentioned.  On  October  12,  1878,  there  was,  in 
Belmont  county,  belonging  to  A.  W.  Anderson  and  his  co-defend- 

(1887)  ;  Nelson  v.  Van  Gazelle  Valve  Mfg.  Co.,  45  N.  J.  Eq.  594,  17  Atl.  943 
(1889)  ;  Sawyer  v.  Bray,  102  N.  Car.  79,  8  S.  E.  885,  11  Am.  St.  713  (1889)  ; 
Windmiller  v.  Chapraan,  139  111.  163,  28  N.  E.  979  (1891)  ;  State  v.  Bcckncr, 
132  Ind.  371,  31  N.  E.  950,  32  Am.  St.  257  (1892)  ;  Jones  v.  Howard,  99  Ga. 
451,  27  S.  E.  765,  59  Am.  St.  231  (1896)  ;  Nighbcrt  v.  Hornsbv,  100  Tenn.  82, 
42  S.  W.  1060,  66  Am.  St.  736  (1897)  ;  In  re  Pond,  21  Misc.  114,  46  N.  Y.  S. 
999  (1897)  ;  Meyer  v.  Missouri  Glass  Co.,  65  Ark.  286,  45  S.  W.  1062,  67  Am. 
St.  927  (1898)  ;  Samuel  v.  Knight,  o  Pa.  Super.  C\  -^^^  ( jRcxa\  ■  Hopke  V. 
Lindsay,  83  Mo.  App.  85  (1899)  ;  Avon-by-the-Sea  Land  &c.  Co.  v.  McDowell, 
71  N.  J.  Eq.  116,  62  Atl.  865  (1906)  semble,  but  otherwise  where  officer  is  not 
entitled  to  take  possession ;  Sanders  v.  Carter,  124  Ga.  676,  52  N.  E.  887 
(1905)  ;  Cup  pies  V.  Level,  54  Wash.  299,  103  Pac.  430,  23  L.  R.  A.  (N.  S.)  519 
(1909)  ;  Peppers  v.  Harris,  145  Iowa  635,  124  N.  W.  625  (1910)  ;  Hartr.ian  v. 
HefHe finger.  47  Pa.  Super.  Ct  i  don')  ;  Russell  v.  State,  13  Ga.  Apir^5r,^79^. 
E.  495  (1913)  ;  Hobbs  v.  Williams,  175  Mo.  App.  409,  162  S.  VV.  334  (1914). 
Contra:  Flinn  v.  Fennirnore,  7  Houst.  (Del.)  206,  31  Atl.  586  (1885).  While 
the  officer  may  permit  ponderous  and  unwieldy  chattels  to  remain  where  he 
finds  them  he  must,  nevertheless,  assume  control  over  them  by  some  open 
and  unequivocal  act.  Davidson  v.  Waldron,  31  111.  120,  83  Am.  Dec.  206 
(1863);  Hill  v.  Harris,  10  B.  Mon.  (Ky.)  120,  50  Am.  Dec.  =;42  (1849); 
Gallagher  v.  Bishop,  15  Wis.  276  (1862)  ;  'Harris  v.  Evans,  81  111.  419  (1876)  ; 
Kile  v.J2Lihnrr,  tt/]  Pp  St.  381.  7  Atl.  154  (1886)  ;  Johnson  V.  Iron  Belt  Min. 
Co.,  78  Wis.  159,  47  N.  W.  363  (1896)  ;  Stanley  v.  Moyniham,  45  111.  App.  102 
(1892);  Field  V.  Fletcher,  191  Mass.  494,  78  N.  E.  107  (1906);  Graced. 
Finleyson,  10  Ga.  App.  480,  73  S.  E.  689  (1911).  The  principle  has  been  ap- 
plied to  cattle  on  range,  Sheffield  v.  Key,  14  Ga.  528  (1854)  ;  Gunter  v.  Cobb, 
82  Tex.  598,  17  S.  W.  848  (1891),  and  growing  crops.  State  v.  Poor,  4  Dev.  & 
B.  (N.  Car.)  384,  34  Am.  Dec.  387  (1839)  ;  Godfrey  v.  Broivn,  86  111.  454 
(1877)  ;  Barr  v.  Cannon,  69  Iowa  20,  28  N.  W.  413  (1886)  ;  Bilby  v.  Hartman, 
29  Mo.  App.  125  (1888)  ;  State  v.  Fowler,  88  Md.  601,  42  Atl.  2o'i,  42  L.  R.  A. 
849,  71  Am.  St.  452  (1898).  See  also  Olden  v.  Sassman,  72  N.  J.  Eq.  637,  66 
Atl.  603  (1907);  Fligdon  v.  Warrant  Warehouse  Co.,  10  Ala.  App.  496,  63 
So.  938  (1913). 


714 


EXECUTION 


ants,  personal  property  subject  to  levy,  amply  sufficient  to  satisfy 
saici'execurion.  On  October  21,  1878,  A.  W.  Anderson  made  an  as- 
sijrnment  for  the  benefit  of  creditors,  and  his  assij^nment  deed  was 
duly  tiled  with  the  probate  juds^e  the  same  day,  and  the  assignee 
gave  bond  and  qualified  according  to  law;  and  as  such  assignee 
brought  this  suit.  At  tlie  time  this  suit  was  brought,  the  sheriff  had 
made  no  return  of  any  of  his  proceedings  under  said  execution,  to 
the  court  from  which  the  execution  issued. 

The  suit  was  to  enjoin  the  sheriff  from  selling  the^  land  under 
this  execution,  the  petition  of  plaintiff  was  dismissed  in  the  court 
of  common  pleas  and  judgment  rendered  for  defendant,  which  judg- 
ment was  afterward  affirmed  in  the  district  court. 

It  seems  to  us  that  the  decision  of  this  case  depends  entirely 
upon  the  question  whether  the  indorsement  by  the  sheriff  upon  the 
writ  of  execution  constituted  in  itself  a  valid  levy  upon  the  land. 
The  doctrine  is  well  settled  that  in  respect  to  real  estate  the  assignee 
for  the  benefit  of  creditors  stands  in  the  shoes  of  his  assignor,  and 
takes  no  greater  estate  than  that  held  by  him.  He  takes  subject 
to  all  liens  and  incumbrances  existing  at  the  time  of  the  assignment 
and  is  not  to  be  regarded  in  equity  as  a  bona  fide  purchaser  without 
notice.  See  Burrili  on  Assignment,  section  391,  and  numerous  cases 
cited  in  the  notes  to  the  third  edition. 

By  force  of  statute,  an  entry  by  the  sheriff  upon  the  foreign 
execution  docket  operates  as  notice  to  the  world ;  and  it  is  plain  that 
its  omission  in  the  present  case,  whatever  might  be  its  effect  as 
against  a  bona  fide  purchaser  without  actual  notice,  can  not  be  taken 
advantage  of  by  the  assignor  who  can  not  protect  himself  by  want 
of  notice,  either  actual  or  constructive. 

Neither  can  the  assignor  complain  that  at  the  time  of  the  levy 
he  was  possessed  of  personal  property  sufficient  to  satisfy  the  judg- 
ment. If  he  did  not  choose  to  apply  such  property  to  its  payment 
he  can  not  complain  that  the  sheriff',  failing  to  find  goods  and  chat- 
tels whereon  to  levy,  proceeded  to  levy  upon  land.^^ 

Was  then  this  levy  a  valid  one?  Clearly  it  was,  unless  under 
our  statute  the  expression  "seized  in  execution"  shall  be  construed 
as  m.aking  an  actual  seizure  of  some  kind  essential.  See  75  Ohio 
L.  680,  S4.^^    In  Gwynne  on  Sheriffs,  308,  the  law  is  stated  thus: 


*'In  First  Nat.  Bank  v.  Black  Hills  Fair  Assn.,  2  S.  Dak.  145,  48  N.  W. 
852  (1891),  it  is  said,  "If  judgment  debtors  have  personal  property,  let  them 
turn  it  over,  or  put  it  out  to  the  sheriff;  and  then  if  he  persists  in  selling  the 
realty,  they  have  cause  for  complaint."  Accord:  Allen  v.  Gleason,  4  Day 
(Coiin.)  376  (1810);  Mavburv  v.  /owg^.  4  Yeates  (Pa.)  21  (1804)  semble; 
Graves  v.  Mervjin,  19  Conn.  96  (1848)  ;  Sloan  v.  Stanly,  li  Ired.  (N.  Car.) 
627  (1850)  ;.P///.y  V.  Magic,  24  111.  610;  Stancill  v.  Branch,  61  N.  Car.  306, 
93  Am.  Dec.  592  (Phil.  L.  1S67)  (i860)  ;  Levan  v.  Millholland.  114  Pa.  St.  49, 
7  Atl.  194  (1886)  semble;  Landrinn  v.  Broaazvell,  no  Ga.  538,  35  S.  E.  638 
(1900);  see  Cloud  v.  Lore,  5  Houst.  (Del.)   163  (1876). 

**Gen.  Code  Ohio  (1910),  §  11657  provides:  "A  judgment  of  the  Supreme 
Court  for  m.oncy  shall  bind  the  lands  and  tenements  of  the  debtor  within  the 
county  in  which  the  suit  originated,  from  the  first  day  of  the  term  at  which 
the  judgment  is  entered,  and  all  other  lands,  and  the  goods  and  chattels  of  the 
debtor,  from  the  time  they  are  seized  in  execution."  In  the  principal  case  the 
land  was  in  a  county  other  than  that  in  which  the  judgment  was  recovered. 


MORGAN   V.    KINNEY  ^1$ 

"No  entry  by  an  officer  on  real  estate  is  necessary  to  constitute  a 
levy.  The  officer  may  remain  in  his  own  office  and  not  even  go 
vi^ithin  view  of  the  land;  he  need  not  seize  upon  any  twig,  turf,  or 
other  part  thereof  as  symbolical  of  the  whole.  His  indorsement 
upon  the  execution  of  a  levy  will  constitute  one  to  all  intents  and 
purposes." 

From  the  time  that  a  valid  levy  is  made,  the  land  is  in  legal 
sense  "seized  in  execution" — that  is,  rendered  liable  for  its  satisfac- 
tion. Nowhere  in  the  statutes  is  the  officer  directed  to  make  any 
actual  seizure,  which  it  would  seem  could  only  be  done  by  taking 
possession  of  the  land  and  ousting  the  judgment  debtor.  It  would 
be  contrary  to  all  previous  notions  concerning  the  duties  of  such 
officers  to  hold  that  prior  to  sale  or  appraisement,  and  upon  the 
mere  receipt  of  the  writ  it  becomes  their  duty  to  enter  upon  the 
debtor's  land  and  take  possession.^^ 

Judgment  affirmed. 

Where  the  judgment  is  Itself  a  lien,  the  argument  for  a  paper  levy  would 
seem  stronger.  In  Wood  v.  Colvin,  5  Hill  (N.  Y.)  228  (1843),  it  is  said,  per 
Bronson,  J.:  "When  the  judgment  is  a  lien  upon  the  land,  it  is  not  necessary 
that  the  sheriff  should  make  any  formal  levy  or  seizure  before  proceeding  to 
advertise  and  sell.  It  would  be  an  idle  ceremony  for  him  to  go  to  the  land  or 
make  an  inventory  of  it,  or  do  any  other  act  of  the  like  nature.  The  judgment 
binds  the  land,  which  is  already  in  the  custody  of  the  law  before  the  execu- 
tion issues.  The  execution  comes  as  a  power  to  enable  the  creditor  to  reap 
the  fruits  of  the  seizure  already  made." 

^'Accord:  Catlin  v.  Jackson  ex  deni.  Grafs,  8  Johns.  (N.  Y.)  520  (1811)  ; 
Cowdenv.  Brady.  8  Serg.  &  R.  (Pa.)  505  (1822),  per  Gibson  J.,  at  p.  509, 
and~see  Troubat  &  Haly's  Practice  (1880),  §  1216;  Hammatt  v.  Bassett,  2 
Pick.  (Mass.)  564  (I824)';  Doe  ex  dem.  Bardcn  v.  McKinne,  4  Hawks  (N. 
Car.)  279,  IS  Am.  Dec.  519  (1826)  ;  Hall  v.  Crocker,  44  Mass.  (3  Mete.) 
245  (1841);  Wood  V.  Colvin,  5  Hill  (N.  Y.)  228  (1843);  Fitch  v.  Tyler, 
34  Maine  463  (1852)  ;  Smith  v.  Morse,  2  Cal.  524  (1852) ;  Fenno  v.  Coulter, 
14  Ark.  38  (1853)  ;  JDiinnica  v.  Coy,  28  Mo.  525,  75  Am.  Dec.  133  (1859)  ; 
Duncan  v.  Matncy,  29  Mo.  368,  jy  Am.  Dec.  575  (i860)  ;  Bidwell  v.  Coleman, 
II  Minn.  (Gil.  45)  78  (1865)  ;  Lockzvood  v.  Big  clow,  11  Minn.  (Gil.  70)  113 
(1865)  ;  Blood  v.  Light,  38  Cal.  649,  99  Am.  Dec.  441  (1869)  ;  Rodgers  v. 
Bonner,  45  N.  Y.  379  (1871)  ;  Isam  v.  Hooks,  46  Ga.  309  (1872)  ;  Hamblen  v. 
Hamblen,  33  Miss.  455,  69  Am.  Dec.  358  (1857)  ;  Cavanaugh  v.  Peterson,  47 
Tex.  197  (1877)  ;  Bank  of  British  Columbia  v.  Page,  7  Ore.  454  (1879)  ; 
Sanger  v.  Trammell,  66  Tex.  361,  i  S.  W.  378  (1886)  ;  Kile_v.  Giebner,  114  Pa. 
St.  381,  7  Atl.  154  (1886)  semble;  Lynch  v  Earlc,  iSKnTsJirsS^Afl^^a 
(1894)  ;  Hcrr  v.  Broadivell,  5  Colo.  App.  467,  36  Pac.  70  (1895)  ;  Union  Nat. 
Bank  V.  Lane,  177  111.  171,  52  N.  E.  361,  69  Am.  St.  216  (1898);  Acklin  v. 
Waltcrmier,  10  Ohio  C.  D.  629,  19  Ohio  C.  C.  2>7~  (1899)  ;  Jones  v.  Olson, 
17  Colo.  App.  144,  67  Pac.  349  (1902)  ;  Brittania  Mining  Co.  V.  United  States 
Fidelity  &c.  Co.,  43  Mont.  93,  115  Pac.  46  (1911)  ;  Hunncman  v.  Phelps,  207 
Mass.  439,  93  N.  E.  697  (1911).  Contra:  Morgan  v.  Johnson,  27  La.  Ann.  539 
(1875)  ;  Watson  v.  Bondurant,  21  Wall.  (U.  S.)  123,  22  L.  ed.  509  (1874)  ; 
Carlson  v.  Smith  (Minn.),  149  N.  W.  199  (1914)  ;  Waters  v.  Duvall,  11  Gill 
&  J.  (Md.)  27,  ZZ  Am.  Dec.  693  (1839)  ;  Elliott  v.  Knott,  14  Md.  121,  74  Am. 
Dec.  519  (1S59)  ;  Langlcy  v.  Jones,  33  Md.  171   (1870). 

So  also  in  England,  under  a  writ  of  elegit,  the  sheriff  does  not  deliver 
actual  possession  of  the  land  to  the  judgment  creditor,  and  the  latter,  if  not 
peaceably  admitted,  is  driven  to  an  action  to  obtain  possession.  Jefferson  v, 
Dawson,  3  Keb.  243  (1673)  ;  Taylor  v.  Cole,  3  T.  R.  292  (1789)  at  p.  295; 
Addison  v.  Tate,  11  Exch.  250  (1855)  ;  Hatton  v.  Haywood,  9  Ch.  App.  229 
(1874),  at  p.  236.   And  while  a  leasehold  interest  in  land  is  sold  as  a  chattel 


7l6  EXECUTION 

CHEXERY  r.  STEVENS 

SiTKF.Mr.  JrniciAL  Coukt  of  Massachusetts,  1867 
97  Mass.  77 

Writ  of  entry  brouglit  by  the  demandant  as  trustee  of  Almira 
Richards,  wife  of  Asa  F.  Richards,  for  possession  of  two  tracts 
of  land  in  New  Salem,  declaring  on  his  seisin  for  her  life.  Plea, 
nul  disseisin.®" 

The  tetiant  claimed  title  by  virtue  of  a  levy  of  an  execution  in 
favor  of  himself  against  Asa'p.  Richards,  the  husband  of  Almira. 
and  contended  thatthe  consideration  for  the  conveyance  of  the  land 
to  Almira  was  paid  by  Asa  F.,  and  the  conveyance  was  void  as 
against  his  creditors.  The  whole  of  the  demanded  premises  were 
set  off  by  the  officer,  on  the  levy,  October  2,  1865,  and  by  his  return 
it  appeared  that  they  were  appraised  at  the  value  of  two  thousand 
dollars,  while  the  amount  needful  to  satisfy  the  execution,  interest 
and  charges  of  levy,  was  nineteen  hundred  and  ninety-four  dollars 
and  eleven  cents.®^ 

The  judge  ruled  that  the  levy  was  invalid,  and  instructed  the 

the  sheriff  does  not  take  possession.  King  v.  Dcane,  2  Show.  85  (1679)  ; 
Play  fair  v.  Miisgrove,  14  M.  &  W.  239  (1845)  ;  Tititsville  Novelty  Iron  IVorks' 
4licqlJ77_£a.^-lQ^M^74)  ',  Maurer_v^lieafer7Ti6  Pa.  St.  339,  9  Atl.  869 

The  essentials  of  a  valid  levy  or  attachment  of  land  is  a  rnatter  of 
statutorj^  provision  in  many  jurisdictions.  See  Freeman  on  Executions  (3d 
ed.),  §  280b.  .       _, 

'^Only  so  much  of  the  case  as  relates  to  the  levy  is  prmted. 

^^Massachusetts  in  1716  adopted  a  statutory  method  of  subjecting  land 
to  the  payments  of  debts  differing  from  the  common  law  elegit.  Gordon  v. 
Lewis,  I  Sumner  525,  Fed.  Cas.  No.  5612  (1834).  According  to  this  practice, 
which,  with  some  variations,  is  followed  in  other  New  England  states,  the 
officer,  on  taking  land  on  execution,  causes  it  to  be  appraised  by  three  per- 
sons, one  appointed  by  the  creditor,  one  by  the  debtor  and  the  third  by  the 
ofificer.  The  appraisers  view  the  land,  determine  its  value  and  set  off  by  metes 
and  bounds  to  the  creditor  a  sufficient  quantity  of  land  to  satisfy  the  execution. 
If  the  land  can  not  be  divided  without  damage  to  the  v.'hole,  the  levy  is  made 
on  such  undivided  portion  as  will  satisfy  the  execution  to  be  held  in  common 
with  the  debtor.  The  officer  delivers  seisin  to  the  creditor  or  his  attorney  aiid 
if  a  person  other  than  the  debtor  is  seised,  he  delivers  such  momentary  seisin 
as  will  enable  the  creditor  to  maintain  an  action  therefor.  The  officer  returns 
the  execution  and  appraisement  to  the  court  and  within  three  months  after 
the  levy  has  been  completed  causes  the  execution  and  return  to  be  recorded. 
The  debtor  may  within  one  year  after  the  levy  redeem  by  paying  the  amount 
for  which  the  land  was  set  off  with  interest,  as  well  as  taxes,  liens  and  ex- 
penses for  repairs  and  improvements,  receiving  credit  for  the  rents  and 
profits,  whereupon  the  creditor  shall  deliver  to  the  debtor  a  deed  of  release. 
Mass.  Rev.  Laws  (1902),  ch.  178,  p.  1603;  Alaine  Rev.  Stat.  (1903),  ch.  78, 
p.  668;  Gen.  Stat.  Conn.  (1902),  §  921;  Pub.  Stat.  N.  H.  (1891),  ch.  23.3. 
To  obtain  title  by  such  proceedings  every  requirement  of  the  statute  must  be 
strictly  followed.  Ladd  v.  Blunt,  4  Mass.  402  (1808);  Pierce  v.  Strickland. 
26  Maine  277  (1846);  FJlison  v.  Wilson,  36  Vt.  60  (1863);  Pickering  v. 
Reynolds,  in  Mass.  83  (1872)  ;  Schroedcr  v.  Tomlinson,  70  Conn.  348,  39  Atl. 
484  (1898);  Freeman  on  Executions  (3d  ed.),  §  372.  In  Massachusetts  the 
creditor  if  he  so  elects  mav  now  sell  the  land  on  the  execution.  Hackctt  v. 
Buck,  128  Mass.  369  (1880).  The  Vermont  statutes  provide  for  a  sale. 
Vt.  Pub.  Stat.  (1906),  §§  2170-76. 


I 


CHEXERY   V.    STEVE>7S 


717 


jury  that  the  demandment  v/as  entitled  to  recover  upon  the  deed 
to  him  from  Almira  Richards.  A  verdict  was  thereupon  returned 
for  the  demandant ;  and  the  tenant  alleged  exceptions, 

BiGELow,  C.  J.:  Taking  the  return  of  the  officer  as  it  stands, 
the  levy  was^  clearly  invalid  by  reason  of  a  seizure  of  more  land 
than  was  sufficient  to  satisfy  the  execution  by  the  sum  of  five  dol- 
lars and  eighty-nine  cents.  No  amendment  to  the  return  has  been 
properly  made  by  an  application  to  the  court  since  the  execution 
has  become  matter  of  record.  Welsh  v.  Joy,  13  Pick.  (Mass.)  477, 
482.  But  tlie  proposed  amendment  would  not  cure  the  difficulty. 
There  would  still  have  been  more  land  set  off  than  the  officer  had  a 
right  to  take  in  order  to  satisfy  the  execution  with  all  lav/ful  fees. 
This  is  fatal  to  the  validity  of  the  lev}^  Pickett  v.  Breckcnridge,  22 
Pick.  (]\Iass.)  297,  is  a  decisive  authority  on  this  point,  and  also  that 
the  amount  of  the  excess  for  which  the  levy  was  made  is  not  so  in- 
considerable as  to  fall  within  the  maxim  de  minimis  non  curat  lex. 
The  counsel  for  the  tenant  is  in  error  in  supposing  that  the  validity 
of  a  levy,  where  land  has  been  set  off  for  too  large  a  sum,  may  be 
made  to  depend  on  the  proportion  which  such  excess  bears  to  the 
whole  amount  of  the  execution ;  or,  in  other  v/ords,  that  if  the  error 
is  relatively  small  as  compared  with  the  debt,  it  is  immaterial  that 
more  land  has  been  set  off  to  the  creditor  tlian  he  is  justly  entitled 
to.  But  this  can  not  be  so.  In  the  transfer  of  title  to  real  estate 
by  virtue  of  a  statute  power,  the  requisitions  of  law  m.ust  be  strictly 
complied  with.  The  sheriff  can  take  no  more  land  than  is  exactly 
sufficient  to  satisfy  the  execution.  If  he  errs  in  this  respect,  as  a  levy 
can  not  be  void  in  part  and  valid  in  part,  the  whole  is  void.®- 

Exceptions  overruled. 


^•Accord:  Huntington  v.  IVinchell,  8  Conn.  45,  20  Am.  Dec.  84  (1830)  ; 
Skinner  v.  McDanicl,  5  Vt.  539  (1833);  Pickett  v.  Breckcnridge,  22  Pick. 
(Mass.)  297,  2,3  Am.  Dec.  745  (1839)  ;  French  v.  Eaton,  15  N.  H.  2>?>7  (1844)  ; 
Bates  V.  Willard,  51  Mass.  62  (1845)  ;  Thayer  v.  Mayo,  34  Maine  139  (1852), 
where  the  excess  was  fifty-two  cents;  McGregor  v.  Williams,  64  Mass.  (10 
Cush.)  526  (1852)  ;  Glidden  v.  Chase,  35  Maine  90,  56  Am.  Dec.  690  (1852), 
where  the  excess  was  fourteen  cents;  Webster  v.  Hill,  38  Maine  78  (1854)  ; 
Bachelder  v.  Thompson,  41  Alaine  539  (1856)  ;  Prescott  v.  Prescott,  62  Maine 
428  (1873).  But  a  levy  is  not  to  be  avoided  because  the  officer  has  taxed,  and 
caused  to  be  satisfied  in  the  extent,  fees  not  authorized  by  law.  In  such  case 
the  officer  is  liable  to  the  debtor,  but  the  creditor  is  not  to  suffer  for  the 
error  or  extortion  of  the  officer.  ^Stiirdivant  v.  Frothingham,  10  Maine  100 
(1833)  ;  Odiorne  v.  Mason,  9  N.  H.  24  (1837)  ;  Camp  v.  Bates,  13  Conn,  i 
(1838);  Holmes  v.  Hall,  45  Mass.  (4  Mete.)  419  (1842);  Keen  v.  Briggs, 
46  Maine  467  (1859)  ;  Avery  v.  Bowman,  40  N.  H.  453,  yj  Am.  Dec.  728 
(i860)  ;  Wilson  v.  Gannon,  54  Maine  384  (1867). 

Aside  from  statutes  while  an  excessive  levy  maj^  be  set  aside  by  the 
court  from  which  the  execution  issued,  it  is  not,  unless  set  aside,  invalid 
and  will  support  a  sale.  Deceit  v.  Odcll,  3  Hill  (N.  Y.)  215,  38  Am.  Dec.  628 
(1842);  Donaldson  v.  Bank  of  panville,  20  Pa.  St.  245  (1853);  Brozvn  v. 
Allen,  3  Head  (  lenn.)  429  (1859)  ;  Pugh  v.  Calloway,  10  Ohio  St.  488  (i860)  ; 
Black  V.  Nettles,  25  Ark.  606  (1869)  ;  Cam  pan  v.  Godfrey,  18  Mich.  27, 
100  Am.  Dec.  133  (1S69)  ;  Drake  v.  Murphy,  42  Ind.  82  (1873)  ;  Bogle  v. 
Bloom,  36  Kans.  512,  13  Pac.  793  (1887)  ;  McConnell  v.  Kaufman,  5  Wash. 
686,  32  Pac.  782  (1893);  Backus  v.  Barber,  107  Mich.  468,  65  N.  W.  379 
(1895)  ;  Hunt  v.  Lavender,  140  Ga.  137,  78  S.  E.  805  (1913)  ;  see  also  Gary 
Brick  Co.  V.  Tilion,  20S  Fed.  497  (1913). 


j-lS  EXECUTION 

SECTION  5.   EXEMPTIONS 

FINK  V.  FRAENKLE 
City  Court  of  New  York,  1891 

20  A".  Y.  Civ.  Proc.  402 

Appeal  by  the  judgment  creditor  from  an  order  of  the  special 
tcnn  denying  a  motion  made  by  them  to  punish  the  judgment  debtor 
for  contempt  in  refusing  to  deliver  to  the  referee  appointed  in  pro- 
ceedings supplementary  to  execution,  certain  property  owned  by 
him. 

Van  Wyck,  J. :  The  plaintiff  issued  an  execution  against  the 
property  of  defendant,  which  was  duly  returned  unsatisfied,  where- 
upon he  obtained  an  order  in  supplementary  proceedings  for  the 
examination  of  defendant,  and  upon  his  examination  the  judgment 
debtor  testified  that  he  was  a  physician  in  active  practice;  lived  at 
115  Second  street;  was  unmarried;  had  no  children;  and  owned  a 
set  of  furniture  for  his  waiting-room,  a  set  for  his  bedroom,  a 
library  of  about  two  hundred  volumes,  and  his  surgical  instruments; 
and  that  all  his  furniture  was  worth  about  $200,  and  the  surgical 
instruments  about  $150 ;  and  that  the  books  and  office  furniture  were 
used  by  him  in  his  business,  and,  though  he  does  not  so  testify,  it  is 
to  be  presumed  that  he  also  used  the  instruments  in  his  business. 
He  made  no  attempt  to  show  that  he  was  a  householder,  or  that  he 
had  a  family  or  any  person  for  whom  he  provided. 

At  common  law  neither  a  judgment  debtor  nor  his  family  had 
any  way  of  exempting  any  portion  of  his  property  from  execution 
for  his  or  their  benefit,^^  so  that  any  privileges  that  he  may  now  have 


*'At  common  law,  under  a  writ  of  fieri  facias,  the  sheriff  had  authority 
to  seize  evers-thing  that  was  a  chattel  belonging  to  the  defendant  except 
necessary  wea'ring  apparel.  Tidd's  Practice  (1828)  looi ;  Hardistey  v.  Barney, 
Comb.  356  (1695).  But  in  distress  for  rent  beasts  of  the  plow  could  not  be 
taken  when  there  were  other  suflficient  subjects  of  distress  on  the  premises. 
Piggott  V.  Births,  i  M.  &  W.  442  (1836);  Keen  v.  Priest,  4  H.  &  N.  235 
(1859)  ;  or  as  Cooke  puts  it:  "Beasts  belonging  to  the  plow,  averia  carucae, 
shall  not  be  distrained,  which  is  the  ancient  common  law  of  England,  for  no 
man  shall  be  distrained  by  the  utensils  or  instruments  of  his  trade  or  profes- 
sion, as  the  axe  of  a  carpenter,  or  the  books  of  a  scholar,  while  goods  or 
other  beasts  which  Bracton  calls  the  animalia  (or  catella)  otiosa  may  be 
distrained."  Co.  Litt.  47a.  By  the  act  of  1888  (51  and  52  Vict.),  ch.  51,  §  4, 
the  same  goods  are  exempt  from  distress  as  are  protected  from  seizure  on 
execution  by  §  95  of  the  County  Courts  Act  of  1846  (9  and  10  Vict.,  ch.  95). 
These  articles  are  the  same  as  those  exempted  from  execution  by  the  Small 
Debts  Act  of  1845  (8  and  9  Vict.,  ch.  127),  §  8  namely:  "The  wearing  apparel 
and  bedding  of  any  judgment  debtor  or  his  family,  and  the  tools  and  imple- 
ments of  his  trade,  the  value  of  such  apparel,  bedding,  tools  and  implements 
not  exceeding  in  the  whole  the  value  of  five  pounds."  In  re  Dawson,  L.  R. 
(1899)  2  Q.  B.  54;  Davis  v.  Harris,  L.  R.  (1900)  i  Q.  B.  729;  Masters  v. 
Fraser,  85 X.  T.  611  (1902).  In  Lavell  v.  Richings,  L.  R.  (1906)  i  K.  B.  480, 
a  cab,  the  onlv  article  on  the  premises,  was  held  exempt  from  distress,  as  an 
implement  of  'trade  although  above  the  value  of  £5,  as  the  debtor  must  be  left 
at  least  £5  worth  of  tools. 


FINK   V.    FRAENKLE  719 

in  that  direction  must  be  sought  for  in  the  statutory  law,  and  in  this 
state  the  laws  which  exempt  from  execution  the  judgment  debtor's 
personal  property  are  to  be  found  in  the  Code  of  Civil  Procedure, 
section  2463,  which  exempts  his  earnings  for  personal  service  within 
sixty  days,  when  "necessary  for  the  use  of  a  family,  wholly  or 
partly  supported  by  his  labor;"  section  1390  which  exempts  certain 
articles  of  personal  property  therein  enumerated,  "when  owned  by 
a  householder;"  and  section  1391,  which  exempts  "furniture,  pro- 
fessional instruments,  library,  and  certain  other  articles,  not  exceed- 
ing in  value  $250,  owned  by  a  person  being  a  householder,  or  hav- 
ing a  family  for  which  he  provides."  The  judgment  debtor  in  this 
case  is  left  to  the  necessity  of  seeking  and  finding  his  justification 
for  refusing  to  deliver  his  property  to  his  receiver  in  these  three 
sections  of  the  code. 

Perhaps  it  would  be  well  to  state  in  passing  that  when  the  judg- 
ment debtor  is  a  woman,  she  has,  by  section  1392,  the  same  exemp- 
tions as  a  householder  has  under  sections  1390  and  1391. 

The  concensus  of  judicial  thought  is  that  the  harsh  rule  of  the 
common  law,  which  stripped  judgment  debtors  of  everything  except 
the  clothes  upon  their  backs,  was  mollified  by  statutory  provisions, 
"as  a  protection  for  poor  and  destitute  families,"  and  "to  mitigate 
the  consequences  of  men's  thoughtlessness  and  improvidence."^* 
Judge  Selden,  in  the  Crawford  case,  in  the  Supreme  Court,  9  How. 
Pr.  (N.  Y.)  548,  says:  "Although  our  statutes  exempting  certain 
articles  of  prime  necessity,  belonging  to  householders,  from  levy  and 
sale  upon  execution,  were  intended  for  the  benefit  of  the  entire 
family  and  not  of  its  head  alone,  still  I  entertain  no  doubt  that  the 
master  of  the  family  may  waive  the  exemption."  However,  the  court 
of  appeals  in  the  Kneettle  case,  22  N.  Y.  240,  has  held  that  the  house- 
holder can  not  even  waive  the  right  of  exemption,  as  it  is  for  the 
benefit  of  the  family  for  which  he  provides.^''   In  the  Kneettle  case 


®?In  several  decisions  statutes  granting  exemptions  are  regarded  as  in 
derogation  of  the  common  law  and  to  be  construed  strictly.  Rue  v.  Alter, 
5  Denio   (N.  Y.)    119  (1847)  ;  Knahh  v.  Drak^-jzT,  Pn,   St_^iga  62  Am.  Dec. 

352  (1854)  ;  Grimes  v.  Bryne,  2  Minn,  (i  Gil.  72)  89  {i%^)\Garaty  &  Arm- 
strong V.  DuBose,  5  S.  Car.  493  (1874)  ;  Wlnte  v.  Hcffner,  30  La.  Ann.  1280, 
31  Am.  Rep.  238  (1878)  ;  London  &  Canadian  Loan  Agency  Co.  v.  Connell, 
II  Manitoba  115  (1896).  But  the  doctrine  more  generally  accepted  is  that 
such  statutes,  being  remedial,  beneficial  and  humane,  will  be  liberally  con- 
strued. Parkerson  v.  Wightman,  4  Strob.  (S.  Car.)  363  (1850)  ;  Montague  v. 
Richardson,  24  Conn.  338,  63  Am.  Dec.  173  (1856)  ;  Deere  v.  Chapman,  25  111. 
610,  79  Am.  Dec.  350  (1861)  ;  Stewart  v.  Brown,  2,7  N.  Y.  350,  93  Am.  Dec. 
578  (1867)  ;  Pond  V.  Kimball,  loi  Alass.  105  (1869)  ;  Good  v.  Fogg,  61  111.  449, 
14  Am.  Rep.  71  (1871)  ;  Heath  v.  Keyes,  35  Wis.  668  (1874)  ;  Astley  v.  Capron, 
89  Ind.  167  (1883)  ■Commonwealth  v.  Boyd,  s6  Pa.  St.  402  (1867)  ;  Byoiis  v. 
Mount,  89  Tenn.  361,  17  S.  W.  1037  (1890);  Yates  County  Nat.  Bank  v. 
Carpenter,  119  N.  Y.  550,  23  N.  E.  1108,  7  L.  R.  A.  557,  16  Am.  St._855  (1890)  ; 
Kennedy  v.  Smith,  99  Ala.  83,  11  So.  665  (1892) ;  Ferguson  v.  Spcith,  13  Mont. 
487,  34  Pac.  1020,  40  Am.  St.  459  (1893)  j  Noycs  v.  B elding,  5  S.  Dak.  603, 
59  N.  W.  1069  (1894)  ;  Hutchinson  v.  Whitmore,  99  Mich.  255,  51  N.  W.  451, 
30  Am.  St.  431  (1892)  ;  Nelson  v.  Fightmaster,  4  Okla.  38,  44  Pac.  213  (1896)  ; 
Cook  v.  Allee,  119  Iowa  226,  93  N.  W.  93  (1903)  ;  In  re  Swanson,  213  Fed. 

353  (1914)- 

""Accord:  Crawford  v.  Lockzvood,  g  How.  Pr.  (N.  Y.)  547  (1854); 
Harper  v.  Leal,  10  How.  Pr.  (N.  Y.)  276  (1854)  ;  Maxwell  v.  Reed,  7  Wis. 


-JO  F.Xr.CUTION' 

the  execution  \vas  issued  upon  a  judj^ment  recovered  on  a  promis- 
sory note  containing-  this  pr«)vision:  "And  T  hereby  waive  and  relin- 
quish all  right  of  exemption  of  any  property  I  may  have  from  execu- 
tion on  this  debt;"  and  judge  Denio  in  that  case,  writing  in  support 
of  the  contention  that  the  right  of  exemption  can  not  be  waived, 
reiterates  the  oft-repeated  construction  given  to  these  statutes,  as 
follows:  "These  exemption  laws  a]>ply  only  to  householders  who 
have  families  for  which  they  provide." 

All  of  this  judicial  reasoning  goes  to  establish  that  only  a  house- 
hold's property  is  exempt;  that  a  householder  is  the  master  of  a 
household;  and  that  a  household  is  a  family  living  togetlier,  how- 
ever not  necessarily  wife  and  children,  but  it  must  be  a  family, 
small  or  large,  for  which  he  provides. 

This  judgment  debtor  has  not  in  any  wMy  shown  himself  a 
householder,  or  a  man  having  a  family  for  which  he  provides,  and 
hence  it  follows  that  he  should  have  been  forced  to  yield  up_  his 
property  to  his  receiver  in  order  that  it  might  reach  his  creditor, 
tlie  plaintiflr.^^ 

The  order  appealed  from  must  be  reversed,  with  costs. 

Ehrlich,  C.  J.,  concurred. 


SS^  (18^9)  ;  Denny  v.  White,  2  Cold.  (Tenn.)  283,  88  Am.  Dec.  596  (1865)  ; 
Curtis  V.  O'Brien,  20  Iowa  376,  89  Am.  Dec.  543  (1866);  Moxley  v.  Ragan, 
10  Bush  (Kv.)  156  (1873);  ^^cchf  V.  Kelly,  82  111.  147,  25  Am.  Rep  301 
(1876)  •  Branch  v.  Tomlinson.  77  N.  Car.  388  (1877)  ;  Walbngsford  v.  Ben- 
nett, I  Mackev  (D.  C.)  303  (1881)  ;  Green  v.  Watson,  75  Ga.  471,  45  Am.  Rep. 
479  (188O  ;  Mills  V.  Bennett,  94  Tenn.  651,  30  S.  W.  748,  45  Am.  St  763 
(1893)  ;  Pozi-ell  v.  Daily,  61  111.  App.  S52  (1895')  ;  Roach  v.  Curtis,  191  N.  \. 
2^^7  84  X  E.  283  (1908)  semble.  Contra:  Heives  v.  Parkman,  20  Pick. 
(Mass  ■)  00  (1838)  ;  Case  v.  Dunnwre.  2%  Pa._SLjQ3  (1854)  ;  Laucks'  Appeal, 
24  Pa.  St  426  (185 O  ;  BaianmtJL^ilileju  OJ  Pa^t.  225,  72  Am.  Dec.  738 
JiB^EJT^^Tocketrv.  Johnson,  22  La.  Ann.  89  (1870);  Patterson  v.  Taylor, 
1=;  Fla  336  (1875)  ;  Fogg  v.  Little  field,  68  Maine  52  (1877)  ;  Keyhers  v.  Mc- 
Comher,  67  Cal.  395,  7  Pac  838  (1885)  ;  B^tiyji^Rankin^Lm^^^^L^^  21 
Atl  74  (1890)  ;  Moss  V.  Jenkins,  146  Ind.^9.  45T^nr7S9  (1896)  ;  Rrqenert 
v.  Mead,  S9  Kans.  665,  54  Pac.  684  (1898)  ;  VVriuhtv,Wright  (Pa.).  103  Fed. 

580    (1900).  ,  .  „  r  •.    X  • 

*'^The  statutes  giving  the  right  of  exemption  usually  conhne  it  to  resi- 
dent "householders"  or  "heads  of  families."  For  the  construction  of  these 
tenns  see  Herman  on  Executions,  §  94;  Freeman  on  Executions  (3d  ed.), 
S  ^2^-  18  Cvc  1397;  7  A.  &  E.  Encvc.  of  Law  133,  and  see  further  Woodward 
V  ~Murrav,  "18  Johns.  (N.  Y.)  400  (1820)  ;  Bowne  v.  Witt,  19  Wend.  (N.  Y.) 
475  (1838);  Bonncl  v.  Dunn,  28  N.  J.  L.  153  (1859);  Marsh  v  Lazenby, 
A\  Ga.  153  (1870)  ;  Bunnell  v.  Hay,  73  Ind.  452  (1881)  ;  Linton  v.  Crosby,  so 
iowa  385,  9  N.  W.  311,  41  Am.  Rep.  107  (1881)  ;  Zimmerman  v.  Franke, 
31  Kans.  650,  9  Pac.  747  (1886)  ;  Chamberlain  v.  Darrozv,  46  Hun  48,  li  N.  Y. 
St  100  (1887)  ;  Pettit  v.  Muskeaon  Booming  Co..  74  Mich.  214,  41  N.  W.  900 
(1889)  ;  Boelter  v.  Klossner,  74  Minn.  272,  77  N.  W.  4,  72,  Am.  St.  347  (i8q8)  ; 
Webster  V.  McCauvran,  8  N.  Dak.  274,  78  N.  W.  80  (1899)  ;  Rolater  v.  King, 
13  Okla.  37,  73  Pac.  291  (1903)  ;  Duffey  v.  Reardon,  70  Ohio  St.  328  71  N.  E. 
712  (1904).  The  exemption  in  some  jurisdictions  extends  to  inhabitants 
whether  married  or  single.  Brown  v.  Wait,  36  Mass.  470,  31  Am.  Dec.  154 
(1838);  Cobbs  V.  Coleman,  14  Tex.  594  (1855);  Dieffenderfer  v.  Fisher, 
■X  Grant  (Pa.)  ^o  (18^9).  ,  .  .  ^ 

In  a  number  of  states  constitutional  provisions  exempt  certain  property 

from  sale  on  execution,  in  others  homestead  exemptions  are  provided  and 
in  some  states  both.  Stimson's  Amer.  Stat.  Law,  §§  83  and  84.  The  kind, 
value  and  amount  of  property  exempt  varies  in  the  different  states.    Herman 


POND   V.    KIMBALL 


721 


POND  V.  KIMBALL 

Supreme  Judicial  Court  of  Massachusetts,  1869 
loi  Mass.  105 

Tort  by  Sylvanus  W.  Pond  and  Hamon  E.  Leland  against  the 
sheriff  of  Middlesex,  for  the  act  of  his  deputy  in  attaching,  on  a 
writ  against  the  plaintiffs,  property  belonging  to  them,  but  alleged  to 
be  exemf  t  from  attachment. 

At  the  trial  in  the  superior  court,  before  Brigham,  J.,  it  appeared 
that  the  plaintiffs  were  copartners;  that  all  the  property  attached 
was  partnership  property ;  and  that  some,  if  not  all,  of  it  came  with- 
in the  exemption  of  the  statute,  part  as  tools  and  implements,  part 
as  materials  and  stock,  unless  the  fact  that  it  was  partnership  prop- 
erty prevented  its  coming  within  such  exemption.  The  presiding 
judge  ruled  that  the  fact  that  it  was  partnership  property  did  not 
render  it  liable  to  attachment  if  it  would  otherwise  have  been  ex- 
empt; ordered  a  verdict  for  the  plaintiffs  and  reported  the  case  to 
this  court.^'' 

Ames,  J. :  This  report  finds  that  the  property  described  in  the 
plaintiffs'  declaration  belonged  to  them  as  copartners.  It  had  been 
procured  by  them  to  be  used  in  their  shop,  as  appropriate  to  and 
usual  in  the  prosecution  of  their  joint  business.  A  portion  of  it 
falls  within  the  description  of  "tools  and  implements"  necessary  to 
the  prosecution  of  their  trade  and  business,  and  another  portion 
under  that  of  "materials  and  stock"  necessary  for  the  same  purpose, 
and   intended  to   be  used   or  wrought   therein.^^    'pj^g   clsLim   of 

on  Executions,  §  97;  N.  Y.  Code  Civ.  Proc,  §§  1389-1404;  Mass.  Rev.  Laws 
(1902),  1598,  ch^  177,  §  34;  N.  J.  Comp.  Stat.  (1910)  2745,  §§  10-17;  Pa.  Act  of 
Apri    9.  1849.  P.  L.  533,  P.  &  L.  Dig.  (2d  ed.)  3342,  Mar.  4,  1887,  T:  L7^, 

April  4,  1889,  P.  L.  23.  ' 

In  some  jurisdictions  the  exemption  is  allowed  only  in  actions  on  con- 
tracts. State  v.  Mclogiie,  9  Ind.  196  (1857)  ;  Kirkpatnck  v.  White,  29  Pa  St 
176  (1857)  ;  Kenyan  v.  Goidd^bi  Pa.  St._292  (1869I  ;'MEssle  VrEnydrT, 
33  Ark.  688  (1878)  ;  Northern  v.  tianners,  121  Ala.  587,  25  So  817  yj  Am  St 
74  (1898);  DeHart  v.  Haiin,  126  Ind.  378,  26  N.  E.  61  (1890).  Contra- 
Smith  V.  Omans,  17  Wis.  395  (1863)  ;  Conroy  v.  Sullivan,  44  111.  451  (1867)  * 
Dclhnger  v.   Tweed,  66  N.  Car.  206   (1872);  Loomis  v.   Gerson,  62  111    n 

°'Part  of  the  statement  of  facts  is  omitted. 

*'Many  exemption  laws  specify  tools  of  trade  but  there  is  great  diversity 
of  opmion  as  to  what  articles  come  within  that  description.  See  Kilbnrn  v 
Demmmg  2  Vi  404,  21  Am.  Dec.  543  (1829),  spinning  machine  exempt; 
Ktcliie  V  McCaulcw  4  Pa.  47LJC1846),  expensive  stamping  blocks  not  exempt; 
Loddard  v.  Chaffee,  84  Mass.  (2  Allen)  395,  79  Am.  Dec.  796  (1861) 
musicians'  violin  exempt;  Wallace  v.  Bartlett,  108  Mass.  52  (1871)  shop 
furnishings  not  exempt;  Wilkinson  v  Alley,  45  N.  H.  551  (1864),  farming 
implements  exempt;  Allen  v.  Thompson,  45  Vt.  472  (1873),  barbers'  chair 
exempt;  Amend  v.  Murphy,  69  111.  2>2>7  (1873),  rnusic  teacher's  piano  exempt; 
Bitting  V  Vanderburgh,  17  How.  Pr.  (N.  Y.)  80  (1859),  watch  exempt. 
V°<?*Jf"  J)  ^^  Turnbiill,  106  Fed.  667  (1901)  ;  Allman  v.  Gann,  29  Ala  240 
(1856)  ;  McCue  v  Tunstead,  65  Cal.  506,  4  Pac.  510  (1884)  ;  Kirksey  v.  Rowe. 
114   Oa.   893,   40   S.    E.   990,   88   Am.    St.   65    (1902),    work   horse    exempt. 

46 — Civ.  Proc. 


-22  EXECUTION 

the  plainiitTs  is.  dial  on  luMh  these  jjrounds  a  portion  at  least  of 
the  property  was  exempt  from  attachment ;  and  that  the  defendant 
is  hahle  in  this  action  for  the  wronj^ful  act  of  his  deputy  in  making 
such  attachment. 

This  claim,  then,  raises  the  question  whether  the  exemption  of 
certain  property  from  attachment,  provided  for  in  the  General  Stat- 
utes, chapter  133,  section  32,  clause  5,  6  and  chapter  123,  section  32, 
applies  to  the  case  of  property  belonging  jointly  to  two  or  more  co- 
partners.  It  does  not  api)car  that,  at  the  time  of  the  attachment,  the 
plaintilYs  had  dissolved  partnership,  or  had  divided  their  joint  prop- 
erty, or  had  had  a  general  settlement  and  winding  up  of  their  busi- 
ness.   We   agree  with   the   plaintiffs'   counsel,   that  the    statute   is 
humane  and  beneficial  in  its  purpose  and  operation,  and  fairly  en- 
titled to  as  liberal  a  construction  as  can  be  given  it,  consistently  with 
its  true  and  just  interpretation.  There  are  many  difficulties,  however, 
in  the  way  of  applying  it  to  the  case  of  copartners  and  joint  owners, 
and  these  difficulties  we  find  to  be  insuperable.    Property  purchased 
with  the  joint  funds  of  the  firm,  and  constituting  a  portion  of  its 
capital,  must  necessarily  be  subject  to  all  the  incidents  of  partnership 
property.  On  the  decease  of  one  member  of  the  firm,  it  would  go  to 
the  surviving  member,  and  he  would  have  a  right  to  hold  it,  to  be 
used  in  settling  the  affairs  of  the  concern,  and  paying  its  debts. 
In  the  case  of  numerous  partners  can  it  be  said  that  each  would  have 
the  right  to  claim,  as  exempt  from  attachment  for  the  joint  debts, 
one  hundred  dollars'  w^orth  of  tools  and  implements,  and  another 
hundred  dollars'  w^orth  of  materials  and  stock ;  or  is  the  whole  firm 
to  be  considered  as  one  debtor  only?    Does  the  exempted  property 
in  that  case  belong  to  the  partners  jointly,  or  does  each  take  a  sepa- 
rate share?  It  appears  to  us  that  tlie  statute  is  intended  to  apply  only 
to  the  case  of  a  single  and  individual  debtor.  The  exemption  which  it 
gives  is  strictly  personal.   The  statute  speaks  in  the  singular  number 
throughout,  unless  possibly  the  clause  as  to  fishermen  (Gen.  Stats., 
chapter  133,  section  32,  clause  9)  be  an  exception.   Its  apparent  ob- 
iect  is  to  secure  to  the  debtor  the  means  of  supporting  himself  and 
his  family,  by  following  his  trade  or  handicraft  with  tools  belonging 
to  himself.    It  also  provides  that  his  family  are  to  be  secured  in 
the  enjoyment  of  certain  indispensable  comforts  and  necessaries. 


Compare  Robert  v.  Adams,  38  Cal.  383,  99  Am.  Dec.  413  (1869);  Fowler  v. 
Gilmore,  30  Tex.  432  (1867);  Brozvn  v.  Hoffmeister,  71  Mo.  411  (1880); 
Equitable  Life  Assur.  Sac.  v.  Goode,  loi  Iowa  160,  70  N.  W.  113,  35  L-  R-  A. 
690,  63  Am.  St.  378  (1897)  ;  State  v.  St.  Paul,  in  La.  71,  35  So.  389  (1903), 
professional  books;  Patten  v.  Smith,  4  Conn.  450,  10  Am.  Dec.  166  (1823)  ; 
Sallee  v.  Waters,  17  Ala.  482  (1850);  Prather  v.  Bobo,  15  La.  Ann.  524 
(i860)  ;  Green  v.  Raymond,  58  Tex.  80,  44  Am.  Rep.  601  (1882)  ;  Bliss  v.  Ved- 
dcr,  34  Kans.  57,  7  Pac.  599,  55  Am.  Rep.  237  (1885)  ;  Brummage  v.  Kenworthy, 
27  Okla.  431,  112  Pac.  984,  Ann.  Cas.  1912C,  6o7n  (1910)  ;  Hams  v.  Townlcy, 
(Tex)  161  S.  W.  5  (1913),  printing  press  exempt.  Contra:  Buckingham  v. 
Billings,  13  Mass.  82  (1816)  ;  Spooner  v.  Fletcher,  3  Vt.  133.  21  Am.  Dec.  579 
(1830)  ;  Dan  forth  v.  Woodward,  10  Pick.  (Mass.)  423,  20  Am.  Dec.  531 
(1830)  ;  Oliver  v.  White,  18  S.  Car.  235  (1882)  ;  Front.:;  v.  Dobson,  64  Miss.  631, 
2  So.  75,  60  Am.  Rep.  68  (1887).  In  Peevehouse  v.  Smith  (Tex.  Civ.  App.),  152 
S.  W.  1 196  (1913),  an  automobile  Vv^as  held  a  "carriage"  within  an  exemption 
law  allowing  the  head  of  a  family  one  carriage  or  buggy. 


POND   V.    KIMBALL  723 

out  of  his  property.  But  property  belonging  to  the  firm  can  not  be 
said  to  belong  to  either  partner  as  his  separate  property.  He  has  no 
exclusive  interest  in  it.  It  belongs  as  much  to  his  partner  as  it  does 
to  him,  and  can  not  in  whole  or  in  part  be  appropriated  (so  long 
as  it  remains  undivided)  to  the  benefit  of  his  family.  It  may  be 
wholly  contingent  and  uncertain  whether  any  of  it  will  belong  to  him 
on  the  winding  up  of  the  business  and  the  settlement  of  his  account 
with  the  firm. 

The  exemption,  in  our  opinion,  is  several,  and  not  joint.  It 
applies  to  the  debtor  in  the  singular  number,  and  is  personal  and  in- 
dividual only.  If  he  desires  to  form  a  partnership  and  combine  his 
means  with  those  of  one  or  more  than  one  other  person,  he  must 
take  the  precaution  to  retain  exclusive  ownership  of  his  tools  and 
implements,  allowing  the  use  of  them  to  his  associates,  or  he  will  lose 
entirely  the  benefit  of  the  statutory  exemptions  as  to  that  kind  of 
property. 

The  result  is,  tliat  the  plaintiffs  are  not  entitled  to  maintain  their 
action;  the  verdict  must  be  set  aside,  and  judgment  entered  for  the 
defendant.^^ 


'^Accord:  .Clecfp  v.  Houston,  i  Phila.  (Pa.')  352  (1852)  ;  Bonsall^ v.^omly 

44  Pa.  St.  442  (1863)  ;  GaylordTSon  &  Co.  v.  M.  Imhoff  &  Co.,  26  Ohfo^St.  317 
20  Am.  Kep.  702  (1875)  ;  State  v.  Spencer,  64  Mo.  355,  27  Am.  Rep.  244  (1877) 
Spiro  V.  Paxton,  3  Lea.  (Tenn.)  75,  31  Am.  Rep.  630  (1879)  ;  Love  v.  Blair 
72  Ind.  281  (1880)  ;  Baker  v.  Sheehan,  29  Minn.  235,  12  N.  W.  704  (1S82) 
State  V.  Bowdcn,  18  Fla.  17  (1881)  ;  State  v.  Emmons,  99  Ind.  452  (1884) 
Cowan  v.  Their  Creditors,  yj  Cal.  403,  19  Pac.  755,  11  Am.  St.  294  (1888) 
Schlaphack  v.  Long,  90  Ala.  525,  8  So.  113  (1889);  Ex  parte  Karish,  32 
S.  Car.  437,  II  S.  E.  298,  17  Am.  St.  865  (1889)  ;  Thurlow  v.  Warren,  82 
Maine  164,  19  Atl.  158,  17  Am.  St.  472  (1889)  ;  Fingerhnth  v.  Lachman,  37  111. 
App.  489  (1890)  ;  State  v.  Pruitt,  65  Mo.  App.  154  (1895)  ;  Green  v.  Taylor, 
98  Ky.  330,  32  S.  W.  945,  17  Ky.  Law  Rep.  897,  56  Am.  St.  375  (1895); 
In  re  Spits,  8  N.  Mex.  622,  45  Pac.  1122,  34  L.  R.  A.  604  (1896)  ;  Bateman  v. 
Edgcrly,  69  N.  H.  244,  45  Atl.  95,  76  Am.  St.  162  (1897)  ;  Gazette  Pub.  Cp-  V. 
McMurtrie.  7  Pa.  Super  Ct.  617  (1898).  Contra:  Stczvart  v.  Brown,  2,7  iSl.  V. 
350,  93  Am.  Dec.  578  (1867)  ;  Radcliff  v.  Wood,  25  Barb.  (N.  Y.)  52  (1857)  ; 
McCoy  V.  Brennan,  61  Mich.  362,  28  N.  W.  129,  i  Am.  St.  589  (1886); 
Blanchard,  Williams  &  Co.  v.  Pascal,  68  Ga.  32,  45  Am.  Rep.  474  (1881)  ; 
St.  Louis  Type  Foundry  v.  International  Live-Stock  Journal  Printing  &c.  Co., 
74  Tex.  651,  12  S.  W.  842,  15  Am.  St.  870  (1889),  and  contra,  if  other  partners 
consent,  Burns  &  Smucker  v.  Harris,  67  N.  Car.  140  (1872)  ;  O'Gorman  v. 
Fink,  57  Wis.  649,  15  N.  W.  771,  46  Am.  Rep.  58  (1883)  ;  Richardson  v.  Redd, 
118  N.  Car.  677,  24  S.  E.  420  (1896)  ;  In  re  Scabolt,  113  Fed.  766  (1902), 
or  there  is  a  severance  of  interest,  Goudy  v.  Werbe,  117  Ind.  154,  19  N.  E.  764, 
3  L.  R.  A.  114  (1888)  ;  Lee  v.  Bradley  Fertilizer  Co.,  44  Fla.  787,  3;^  So.  456 
(1902). 

In  some  cases  a  distinction  is  made  in  favor  of  claims  out  of  partnership 
property  when  the  execution  is  against  one  of  the  firm  for  his  individual  debt. 
Moyer  v.  Drummond,  32  S.  Car.  165,  10  S.  E.  952,  7  L.  R.  A.  747,  17  Am.  St. 
850  (1889)  ;  Dennis  v.  Kass  &  Co.,  11  Wash.  353,  39  Pac.  656,  48  Am.  St.  880 
(1895)  ;  Southern  Jellico  Coal  Co.  v.  Smith,  20  Ky.  L.  1594,  105  Ky.  769, 
49  S.  W.  807  (1899).  Contra:  State  v.  Boivden,  18  Fla.  17  (1881)  ;  IVills  v. 
Downs,  38  111.  App.  269  (1890)  ;  Porch  v.  Arkansas  Milling  Co.,  65  Ark.  40, 

45  S.  W.  51,  67  Am.  St.  895  (1898). 

In  Heckle  v.  Grewe,  125  III.  58,  17  N.  E.  437,  8  Am.  St.  332  (1S88),  it  is 
held  that  the  interest  of  a  tenant  in  common  in  personal  property  "stands  on 
the  same  footing,  in  respect  to  exemption  laws,  as  like  interests  in  other 
property  where  the  possession  as  well  as  the  title  is  several."  Accord  :  Scrvanfi 
v.  Lusk,  43  Cal.  238  (1872)  ;  Nezvion  v.  Howe,  29  Wis.  531,  9  Am.  Rep.  616 


7-4 


EXF.CUTION 


FROST  i:  SHAW 

Supreme  Court  of  Ohio.  1854 
3  Ohio  St.  270 

Trespass  bv  the  plnintilT  in  error  for  the  recovery  of  damages, 
lor  the  levy  and  sale  by  execution,  of  certain  chattels,  consisting  of 
one  yoke  of  work  cattle,  one  ox-yoke  with  the  bows  and  irons,  six 
sheep,  and  one  cow,  which  he  claimed  to  be  exempted  by  law  from 
seizure  on  execution.  The  plaintiff  being  indebted  to  Vangordcr  & 
Canfield  in  the  sum  of  $68.83  gave  them  a  promissory  note  for  that 
amount,  and,  as  security,  a  chattel  mortgage  of  the  property  above, 
with  tlie  exception  of  the  ox-yoke  with  the  bows  and  irons.  Van- 
gorder  &  Canfield  obtained  judgment  on  the  note  and  the  defend- 
ant Shaw^  as  constable,  by  direction  of  Birchard,  the  agent  of  the 
plaintiff's  in  the  execution,  levied  on  and  sold  said  chattels.  On  the 
trial  of  the  case  in  the  court  of  common  pleas  there  was  a  verdict 
and  judgment  for  defendants.   Plaintiff  brought  error. ^ 

Bartley,  J.:  Although  the  humane  provisions  of  the  law  ex- 
empting certain  articles  of  necessity  from  execution  for  the  pay- 
ment of  debts,  may  be  entitled  to  a  liberal  construction,  the  settled 
principles  which  govern  the  right  of  private  property,  are  not  to 
be  overlooked.  The  owner  of  the  chattels  exempted  from  execution, 
is  not  divested  of  the  right  of  disposing  of  property  himself,  either 
by  sale,  or  by  pledge  in  security  of  the  payment  of  his  debts.  And 
in  case  of  a  pledge  or  chattel  mortgage,  the  owner  clearly  waives 
the  benefit  of  the  exemption,  so  far  as  the  encumbrance  extends,  or 
is  operative.^ 

But  it  is  urged,  with  much  force  and  ingenuity,  by  the  counsel 
for  the  plaintiff,  that  the  seizure  and  sale,  on  execution,  of  one  of 
the  chattels,  consisting  of  an  ox-yoke  with  its  appendages,  which 
was  not  covered  by  the  mortgage,  sustained  the  action ;  and  that  the 
court  of  common  pleas  erred  in  the  charge  to  the  jury,  in_ reference 
to  this  article.  The  statute  authorizes  a  person  of  a  family,  "if  he 
be  engaged  at  tlie  time  in  the  business  of  agriculture,  to  select  one 
work  horse,  or  mare,  or  one  yoke  of  work  oxen,  with  the  necessary 
gearing  for  the  same,"  which  he  may  hold  exempt  from  execution 
or  sale  by  debt.    Swan's  Rev.  Stat.,  page  710.    We  are  saved  the 

(1872)  ;  Rutledge  v.  Rutledge,  8  Baxt.  (Tenn.)  33  (1874)  ;  Sierman  v.  Hann 
160  Iowa  356,  141  N.  W.  934  (1913)-  Compare  Wright  v.  Pratt,  31  Wis  99 
(1872).  In  Hniidryv.  Hampton.  i6o  Pa.  St.,A8^8  Atl.  471  (1894),  it  is  held 
that  the  joint  owners  of  a  certificate  of  stock  pledged  for  a  joint  debt  could  not 
claim  their  exemptions  out  of  the  proceeds  of  a  sheriff's  sale  of  the  stock. 
And  in  Sharpe  v.  Baker,  51  Ind.  App.  547,  99  N.  E.  44  (1912),  a  tenant  by  en- 
tirety was  held  not  entitled  to  cla^im  an  exemption  out  of  the  joint  property. 

*The  statement  of  facts  is  abridged  and  part  of  the  opinion  omitted. 

'Accord:  Harvey  v.  Ford,  83  Mich.  506,  47  N.  W.  242  (1890)  ;  Rogers  \. 
Raynor,  102  Mich.  473,  60  N.  W.  980  (1894) ;  Hawley  v.  Hampton,  160  Pa.  St. 
18  28  Atl.  471  (1894)  ;  Monroe  v.  Button,  20  N.  Y.  Misc.  494,  46  N.  Y.  S.  637 
(iPf)7)  ■  Grovcr  v.  Yoimie,  no  Iowa  446,  81  N.  W.  684  (1900).  But  only  as 
to  the  holder  of  this  lien.  McComb  v.  Watt,  39  Okla.  412,  135  Pac.  361  (1913)- 


FROST   V.    SHAW  725 

necessity  of  considering  the  question  whether  the  "necessary  gear- 
ing" could  be  held  exempt  from  execution,  when  the  debtor  had 
parted  with  the  oxen,  by  the  fact  that  it  does  not  appear  in  this  case, 
that  the  plaintiff  had  laid  any  foundation,  by  proof,  for  his  right  to 
the  benefit  of  the  exemption,  as  to  this  article,  which,  by  the  terms 
of  the  law,  depended  on  his  selection  of  it,  as  necessary  for  carrying 
on  his  business  of  agriculture.  There  are  certain  enumerated  arti- 
cles, which  are  absolutely  exempted  from  execution,  and  which  the 
officer  is  bound,  at  his  peril,  to  notice,  and  not  take  on  execution, 
tuiless  turned  ovit  to  him,  by  the  debtor  waiving  his  right  to  the 
exemption.  But  there  are  other  articles,  including  that  now  in  ques- 
tion, the  exemption  of  which  from  execution,  by  the  terms  of  the 
lav/,  depends  on  the  selection  to  be  made  by  the  debtor.  This  selec- 
tion should  be  made  by  the  debtor  at  the  time  of  the  levy,  if  he  be 
present ;  but  if  not  present,  he  should  make  the  selection  and  notify 
the  officer  of  the  same,  within  a  reasonable  time  thereafter,  and  be- 
fore tlie  sale.  Without  such  selection,  the  right  to  the  benefit  of  the 
exemption  does  not  exist  as  to  those  articles,  which  the  statute 
authorized  the  debtor  to  select,  and  when  no  such  selection  has  been 
made,  it  is  the  duty  of  the  officer  to  proceed  to  levy  on,  and  sell  the 
property.  The  plaintiff,  therefore,  having  failed  to  show  that  he  had 
selected  this  article  to  be  held  as  necessary  to  his  business,  failed  to 
establish  his  right  to  the  exemption,  and,  consequently,  his  right  to 
maintain  an  action  for  the  taking  and  sale' of  the  article  on  execu- 
tion.^ 

Judgment  affirmed. 


^Where  articles  are  specifically  exempt  by  statute,  or  where  the  debtor's 
property  amounts  to  no  more  than  the  exemption  allowed,  the  following  cases 
hold  that  the  officer  must  assume  that  an  exemption  is  claimed  ahhough  there 
may  have  been  no  affirmative  act  on  the  debtor's  part.  State  v.  Haggard, 
I  Humph.  (Tenn.)  390  (1839);  Elliott  v.  Whitcmore,  5  Mich.  532  (1858); 
Gilman  v.  Williams,  7  Wis.  329,  76  Am.  Dec.  219  (i8s9)  ;  Cole  v.  Green, 
21  111.  104  (1859)  ;  U'yckoff  V.  IFyllis,  8  Mich.  48  (i860)  ;  Lynd  v.  Pickett, 
7  Minn.  (Gil.  128)  184,  82  Am.  Dec.  79  (1862)  ;  Mantian  v.  Mcrritt,  93  Mass. 
(II  Allen)  582  (1866)  ;  Frost  v.  Mott,  34  N.  Y.  253  (1866)  ;  Woods  v.  Keyes, 
96  Mass.  236,  92  Am.  Dec.  765  (1867)  ;  Perry  v.  Leivis,  49  Miss.  443  (1873)  ; 
Wallace  v.  Laivyer,  54  Ind.  501,  23  Am.  Rep.  661  (1876)  ;  Shear  v.  Reynolds, 
90  111.  238  (1S78)  ;  Murphy  v.  Sherman,  25  Minn.  196  (1878)  ;  Seip  v.  Tilgh- 
man,  23  Kans.  289  (1880)  ;  Parsons  V.  Thomas,  62  Iowa  319,  17  N.  W.  526 
(1883)  ;  Harrington  v.  Smith,  14  Colo.  376,  22,  Pac.  331,  20  Am.  St.  272  (1890)  ; 
Grieb  V.  Northrup,  66  App.  Div.  86,  72  N.  Y.  S.  481  (1901)  ;  Skinner  v.  Jen- 
nings, 137  Ala.  29s,  34  So.  622  (1902)  ;  Sandcrhcrg  v.  Borstadt,  48  Colo.  96,  109 
Pac.  419  (1910).  Contra:  Twinam  v.  Sivart,  4  Lans.  (N.  Y.)  263  (1871)  ; 
Gilezncs  v.  Goldberg,  69  App.  Div.  438,  74  N.  Y.  S.  984,  10  N.  Y.  Ann.  Cas. 
393  (1902)  ;  Thompson  v.  Peterson,  122  Minn.  228,  142  N.  W.  307  (1913). 
But,  generally,  the  exemption  is  regarded  as  a  personal  privilege  to  which  the 
debtor  must  lay  claim  within  the  time  and  in  the  manner  provided  by  law  or 
established  by  practice.  Gresham  v.  Walker,  10  Ala.  370  (1846)  ;  Weaver's 
Appeal,  18  Pa.  St.  307  (1852);  trammer  v.  Freese.  19  Pa.  St.  2^=;  (1852); 
Dichl  V.  Holben,  ;>,Q  Pa.  St.  213  LiS5i )  :  Borland  v.  O  Ncal,  22  Cal.  504  (1863)  ; 
i^qj^  V.  57rmmaw,  52  Pa.  StT"^3  (1866)  ;  Osborne  V.  Sclniit,  67  Mo.  712 
(187STT  State  v7  Bouldcn,  57  Md!  314  (1881)  ;  Green  v.  Blunt,  59  Iowa  79, 
12  N.  W.  762  (1882)  ;  Barton  v.  Brozvn,  68  Cal.  11  (1885)  ;  Sctths  v.  Bond, 
49  Ark.  114,  4  S.  W.  286  (1886)  ;  Stewart's  Abtyeal.  20  W.  N.  Cas.  (Pa.)  11 1 
(18S7);  lYilliaptson  y.  KriimbhaarT  12,2  Pa.  St.  455,  19  Atl.  281  (1890); 
Stanton  v.  FTencli,  b3  Cal.  194,  23  i'ac.  355   {liigo)  ;  Pirie  v.  Harkness,  3 


7^6  EXECUTION 


MEGEHE  z>.  DRAPER 

Supreme  Court  of  Missouri,  1855 
21  Mo.  510 

Ryland,  J. :  The  defendant,  Drainer,  caused  the  plaintiff's  prop- 
erty to  be  levied  ujion  under  and  by  virtue  of  an  execution.  The 
plaintilT  claimed  the  property,  to  the  value  of  $150,  as  exempt  from 
execution,  under  the  act  of  the  legislature  of  February  6,  1847,  ^^^^ 
tlie  property  was  duly  appraised.  The  defendant  afterwards  caused 
the  property  to  be  sold  under  the  execution,  and  this  suit  is  brought 
for  tliat  wrong.  The  defense  relied  upon  is,  that  the  plaintiff,  at 
the  time,  had  other  property  not  specifically  exempt  from  execution, 
more  than  sufficient  in  value  to  pay  the  debt,  which  he  concealed 
from  the  officer,  so  as  to  keep  it  out  of  the  reach  of  the  execution. 
Upon  tlie  plaintiff's  motion,  this  part  of  the  defendant's  answer  was 
stricken  out,  and  the  defendant  excepted.  Upon  the  trial,  the  defend- 
ant offered  to  prove  the  same  matters  before  the  jury;  which  proof 
was  rejected,  and  the  defendant  excepted.  There  was  a  verdict  for 
the  plaintiff,  and  judgment  thereon.  The  defendant  moved  for  a  new 
trial,  which  was  refused,  and  he  brings  the  case  here  by  appeal. 

The  only  matter  for  our  consideration  involves  the  act  of  the 
court  below  in  rejecting  the  evidence  on  the  trial,  and  in  striking 
out  the  answer,  or  that  part  of  the  answer  setting  up  the  above  mat- 
ters in  defense.  If  the  court  properly  struck  out  that  part  of  the 
answer,  then  it  was  proper  also  to  reject  the  evidence  in  relation  to 
the  same  subject  matter. 

This  court  is  of  opinion  that  the  matter  set  up  in  the  defendant's 
answer  was  well  stricken  out.  It  affords  no  defense  to  the  plaintiff's 
action.  The  statutes  reserving  and  exempting  certain  specific  prop- 
erty from  execution,  and  property  real,  personal  and  mixed  from 
execution,  to  a  certain  amount  in  value,  were  not  made  alone  for  the 
benefit  of  the  debtor.  He  must  be  the  head  of  a  family.  The  legisla- 
ture had  an  eye  to  the  family  of  the  debtor,  to  his  household,  and 
determined  to  prevent  as  much  suffering  and  misery  from  entering 


S.  Dak.  178,  52  N.  W.  581  (1892)  ;  Wagner  v.  Barden,  13  Ind.  App.  571,  41 
N.  E.  1067  (1895);  Scanlan  v.  Guiling,  63  Ark.  540,  39  S.  W.  713  (1897); 
Hartvwn  v.  Wood,  57  App.  Div.  23,  67  N.  Y.  S.  1046  (1901);  Johnson  v. 
Larcade,  no  111.  App.  611  (1903)  ;  In  re  Moss  v.  Light  fine,  60  Misc.  (N.  Y.) 
62  (1908)  ;  United  States  Fidelity  Co.  v.  Hollenshead,  51  Wash.  326,  98  Pac. 
749  (1909).  And  this  rule  is  especially  applicable  where  the  debtor  must 
select  from  a  number  of  articles  those  that  he  claims  as  exempt.  In  Btizsell 
V.  Hardy,  58  N.  H.  331  (1878),  trespass  was  brought  against  an  officer  for 
taking  a  pair  of  oxen  and  a  cow  claimed  under  the  exemption  law.  At  the 
time  of  attachment  the  plaintiff  had  two  cows,  a  pair  of  oxen  and  a  horse. 
Said  the  court :  "Either  the  oxen  or  the  horse  were  exempt  but  not  both. 
One  of  the  two  cows  was  exempt  but  not  both.  If  he  had  made  such  a  claim, 
the  officer  might  have  attached  the  horse  and  the  other  cow."  Accord :  Sum- 
ner v.  BroTun,  34  Vt.  194  (1861)  ;  Bzitt  v.  Green,  29  Ohio  St.  667  (1876)  ; 
Nash  V.  Farrington,  86  Mass.  (4  Allen)  157  (1862);  Savage  v.  Davis,  134 
Mass.  401  (1883).   Cf.  Copp  v.  Williams,  135  Mass.  401   (1883). 


i 


MEGEHE  V.    DRAPER  y2y 

into  such  abodes  as  they  could,  by  saving  to  them  the  small  allowance 
mentioned  in  the  statutes.  These  statutes,  so  productive  of  good  to 
the  classes  which  generally  so  much  need  protection,  deserve  and 
meet  with  liberal  interpretation  from  the  courts. 

It  would  at  once  destroy  all  the  intended  benefit  of  these  stat- 
utes, to  suffer  such  a  defense  to  be  set  up  against  those  claiming 
the  protection  under  them.  If  the  defendant  in  the  execution,  who 
claims  the  property  to  be  exempt,  has  concealed  and  hid,  or  placed 
be3''ond  the  immediate  reach  of  the  officers  of  justice,  his  property, 
and  this  fact  be  known  to  the  plaintiffs  in  the  execution,  let  them 
ferret  out  the  hidden  property  and  take  steps  to  reach  it,  and  sub- 
ject it  to  the  process  of  the  law.  The  burden  should  be  on  their 
shoulders.  If  the  plaintiff  here  in  the  execution  asserts  that  the 
defendant  has  concealed  his  property,  let  him  search  out  the  prop- 
erty with  his  writ  of  execution.  He  can  garnishee  under  execution 
the  person  in  w-hose  possession  the  property  is  supposed  to  be. 
Let  him  take  this  course.  He  has  no  right  by  act  to  destroy  the 
obvious  intention  of  the  statute  in  favor  of  the  helpless  and  needy, 
when  he  can  so  easily,  by  garnisheeing,  reach  the  hidden  or  con- 
cealed property.  It  will  not  do  to  say  that  he  can  not  find  it,  or  does 
not  know  where  it  is.  He  charges  that  the  defendant  has  concealed 
it ;  then  the  law  gives  him  means  to  pursue  it.  Let  it  once  be  under- 
stood that  such  an  allegation  in  a  defendant's  answer,  in  cases  like 
the  present,  v/ill  be  availing,  and  you  might  as  well  strike  the  whole 
provision  exempting  property  from  execution  from  the  statute  book.* 

Judgment  affirmed. 

*Accord:  Callozvay  v.  Carpenter,  lo  Ala.  500  (1846)  ;  Wilcox  v.  Hawley, 
31  N.  Y.  648  (1864)  ;  Mannan  v.  Merritt,  93  Mass.  582  (i865)  ;  Moseley  v. 
Anderson,  40  Miss.  49  (1866)  ;  Crmnmcn  v.  Bcnnct,  68  N.  Car.  494  (1873); 
Diivall  v.  Rollins,  yi  N.  Car.  218  (1874)  ;  Caster  v.  Hardie,  75  N.  Car.  460 
(1876)  ;  Ketchum  v.  Allen,  46  Conn.  414  (1878)  ;  Bell  v.  Dcvore,  96  111.  217 
(1880)  ;  Bald-win  v.  Talhot,  43  Mich.  11,  4  N.  W.  547  (1880)  ;  Elder  v.  Wil- 
liams, 16  Nev.  416  (1882)  ;  Bates  v.  Callendcr,  3  Dak.  256,  16  N.  W.  506 
(1883)  ;  Admondson  v.  Ryan,  iii  111.  506  (1885)  ;  Comstock  v.  Bechtel,  63 
Wis.  656,  24  N.  W.  465  (1885)  ;  Over  v.  Shannon,  91  Ind.  99  (1883)  ;  Sannoner 
V.  King,  49  Ark.  299,  5  S.  W.  327,  4  Am.  St.  49  (1887)  ;  Freehling  v.  Bres- 
nahan,  61  Mich.  ^40,  I  Am.  St.  617  (1886)  ;  King  v.  Hartcr,  70  Tex.  S79, 
8  S.  W.  308  (1888)  ;  State  v.  Carson,  27  Nebr.  501,  43  N.  W.  361,  9  L.  R.  A. 
523,  20  Am.  St.  681  (1889)  ;  Dohcrty  v.  Ramsey,  i  Ind.  App.  530,  27  N.  E.  879, 
50  Am.  St.  223  (1891)  ;  Pinkus  v.  Bamberger,  99  Ala.  266,  13  So.  578  (1892)  ; 
Noyes  v.  B elding,  5  S.  Dak.  603,  59  N.  W.  1069  (1894)  ;  Wagner  v.  /.  H.  North 
Furniture  &  Carpet  Co.,  63  Mo.  App.  206  (1895)  ;  Boylston  v.  Rankin,  114 
Ala.  408,  21  So.  995,  62  Am.  St.  iii  (1896).  Compare  State  v.  Freeman, 
173  Mo.  App.  294,  158  S.  W.  726  (1913).  The  debtor  may  by  his  conduct 
estop  himself  from  claiming  particular  property.  Cassell  v.  JJ'illiatns,  12  111. 
387  (1851);  Stevenson  v.  White,  5  Allen  (Mass.)  148  (1862);  Currier  v. 
Sutherland,  54  N.  H.  475,  20  Am.  Rep.  143  (1874)  ;  Rose  v.  Sharpless,  33 
Grat.  (Va.)  153  (1880);  State  v.  Koch,  40  Mo.  App.  635  (1890);  Bolin  v. 
Weeks,  50  111.  App.  236  (1893). 

A  doctrine  contrary  to  the  principal  case  prevails  elsewhere  which  is 
stated  as  follows  in  Stronse  v.  Becker,  38  Pa.  St.  190,  80  Am.  Dec.  474  (1861), 
bj'-  Woodward,  J. :  "When  an  officer  comes  Avith  an  execution,  it  is  the  duty 
of  the  debtor,  as  a  good  citizen,  if  he  can  not  pay  the  debt,  to  facilitate  the 
making  a  levy.  He  should  exhibit  his  property  honestly,  and  claim  only  the 
exemption  which  the  law  allows  him.  It  is  a  hard  thing,  doubtless,  to  be 
strictly  honest  in  such  an  emergency,  but  it  Is  best,  after  all,  even  for  the 


7-S  KXr.CUTION 

SECTION  6.     CLAIMS  BY  STRANGERS  TO  THE  WRIT 
MILLMR  i:  THE  COMMONWEALTH 
SuPREME_CoyRXjQFL  Pennsylvania.^jS^? 

5   ^fl.   i294 

In  error  from  the  Common  Pleas  of  Clinton.  This  was  an 
action  of  debt  against  the  sheriff  and  his  sureties  on  an  official  bond. 
The  plaintiff  proved  a  judgment  against  Harvey  and  Fleming;  a 
fieri  facias  and  return  of  "levied  on  a  horse,  wagon,  sleigh  and 
clock."  He  then  proved  that  prior  to  the  delivery  of  the  writ,  he 
had  called  on  the  sheriff  to  make  a  levy  on  some  lumber  of  the 
defendants,  and  informed  him  that  it  was  claimed  by  a  stranger, 
but  that  he  might  go  on  and  plaintiff  would  give  a  bond  of  indem- 
nity at  any  time  before  the  day  of  sale.  The  sheriff  was  satisfied, 
and  did  not  require  a  bond  at  that  time.  He  then  gave  evidence 
that  the  lumber  in  their  possession  belonged  to  defendants  in  the 
execution.  The  defendants  then  offered  in  evidence  the  venditioni 
and  al.  vend,  at  the  terms  succeeding  the  fieri  facias,  to  the  first  of 
v^-hich  there  was  a  return — that  the  property  mentioned  in  the  writ 
being  claimed  by  third  persons,  and  plaintiff  having  promised  to 
indemnify,  and  having  neglected  so  to  do,  he  had  refused  to  sell.  To 


debtor  himself.  If  his  property  be  taken,  his  self-respect  and  conscious  integ- 
rity are  left,  and  he  has  gained  a  moral  discipHne  \vhich  will  go  far  toward 
|repairing  his  fortunes.  But  if  he  equivocate  and  dissemble — denies  his  owner- 
Iship  of  that  which  he  can  not  hide,  and  embarrasses  the  officer  of  the  law  in 
the  execution  of  legal  duties,  he  forfeits  not  only  his  self-respect,  but  his  hold 
upon  the  exemption  provided  for  honest  debtors.  And  it  is  reasonable  that  he 
should ;  for  what  right  has  he  to  expose  the  officer  to  the  peril  of  a  suit  for 
levying  on  the  goods  of  a  pretended  owner,  or,  on  the  other  hand,  of  incurring 
liabilities  to  the  plaintiff  for  neglect  of  diUy?  If,  to  escape  from  the  dilemma 
in  which  the  sheriff  or  constable  finds  himself  placed,  he  obtains  indemnity 
from  the  plaintiff,  this  is  an  inconvenience  and  a  delay  such  as  a  debtor  has 
no  right  to  cause,  and  then  turn  around  and  show  by  his  admission  of  title 
and  claim  of  exemption,  that  it  was  needless  and  vexatious.  In  a  word,  the 
'  law  would  have  all  men  honest  and  sincere.  To  debtors  who  are  so,  it  leaves 
I  $300  worth  of  property — to  those  who  are  not  it  offers  no  reward."  Accord : 
In  re_HucyLs__Ap,^cqi^2CiV^  219  (1857);  Emersonjy^miJh,sj^  Pa.  St.  90, 
88~Am.  Dec.  566  (1865)  ;  Carl  v.  Si7iith,  8  PliITaT  Ren.  (Pa.J  5^9  (iSji^T^n  re 
Imhoff's  A  Pineal.  119  Pa.  "St.  350,  13  AtX  279  (1888)  ;  Moore  y,  Baker,  2  Pa. 
DisL^.  142  (1892)  ;  flrank  v.  Kurt.-^^./]  Pn.  5;iippr.  Ct  233  (1897)  ;  Riley  V. 
Opden,  185  Pa.  St.  5^06,  40  Atl.  76  (1898)  ;  Brackett  v.  Watkins,  2i~Wend. 
( i\' .  V . )  68  "t  1839)  -rSanborn  v.  Hamilton,  18  Vt.  590  (1846);  Mandlove  v. 
Burton,  i  Ind.  39  (1848);  McNally  v.  Mulherin,  79  Ga.  614,  4  S.  E.  332 
(1887);  McWilliams  v.  Bones,  84  Ga.  199,  10  S.  E.  723  (1889);  Hoover  v. 
Haslage,  5  Ohio  N.  P.  90  (1897)  ;  Farwell  Co.  v.  Patterson,  76  111.  App.  6or 
(1898)  ;  In  re  Yost,  117  Fed.  792  (1902)  ;  Wunderly  v.  LeopojdjJi2_Pa^uper. 
Ct^3i_(i9ij). 

Tri  a  number  of  states  the  debtor  in  special  cases  may  have  a  stay  of 
execution  for  a  prescribed  period  upon  giving  security.  The  statutes  differ 
widely  in  the  various  jurisdictions.  See  Herman  on  Executions,  §  392; 
17  Cyc.  1 139;  7  A.  &  E.  Encyc.  of  Law  (ist  ed.)  146. 


MILLER   V.    COMMONWEALTH  729 

the  alias  the  return  was — that  he  had  made  diligent  search  for  the 
property  mentioned  in  the  writ,  and  could  find  no  part  of  it  in  his 
bailiwick;  all  of  which  were  rejected  by  the  court.  The  defendants 
then  gave  evidence  that  the  lumber  was  not  the  property  of  the  de- 
fendants in  the  execution ;  and  they  further  offered  evidence  of  the 
same  character  as  to  the  property  levied  on,  which  was  rejected. 

The  court  (Woodward,  P.  J.)  after  leaving  it  to  the  jury  to 
decide  whether  this  was  a  case  for  requiring  indemnity,  said:  The 
conversation  respecting  indemnity  seems  to  have  regarded  the  lum- 
ber, as  that  alone  was  in  dispute.  If  the  sheriff  waived  indemnity 
on  an  agreement  by  plaintiff  to  furnish  it  when  required,  it  was  his 
duty  to  go  and  make  a  levy,  and  he  might  have  required  indemnity 
before  the  sale.  If  they  parted  on  that  understanding,  the  plaintiff's 
failure  to  tender  it  did  not  excuse  the  sheriff.  This,  however,  would 
not  give  a  right  of  action  to  the  plaintiff'  if  the  property  did  not 
belong  to  the  defendants  in  the  execution,  and  the  question  whether 
the  lumber  was  liable  to  the  execution  was  left  to  the  jury.  But  as  to 
the  property  actually  levied  on,  the  question  of  ownership  was  im- 
m.aterial,  for  that  was  in  the  custody  of  the  law,  and  the  sheriff  was 
bound  to  make  some  disposition  of  it  unless  the  plaintiff  refused  to 
indemnify  him,  and  then  he  should  have  refurned  that  fact,  as  an 
excuse  for  not  selling. 

The  rejection  of  the  evidence,  and  the  charge  "as  to  the  indem- 
nity, and  that  the  ownership  was  immiaterial,"  were  the  errors 
assigned.^ 

Coulter,  J. :  The  rule  is,  that  a  sheriff  must  execute  a  writ  of 
fieri  facias  at  his  peril.  And  in  England  it  seems  to  be  well  set- 
tled that  he  can  not  contradict  his  return  for  the  purpose  of  reliev- 
ing himself  from  the  liability  which  the  return  imposes.  Thus, 
where  he  returns — goods  levied,  with  a  schedule — he  assumes  the 
responsibility  that  they  belong  to  the  defendant,  and  he  will  after- 
wards, as  a  general  rule,  be  estopped  from  denying  that  they  were 
such.  It  may  in  some  cases  be  hard,  but  considerations  of  public 
policy  outweigh  and  countervail  all  tenderness  of  that  kind.  The 
danger  of  collusion  between  the  officers  and  the  defendant  for  the 
purpose  of  defeating  an  honest  creditor,  marks  the  wisdom  of  the 
rule.  Otherwise,  a  sheriff  could  return — levied  on  the  goods  of 
the  defendant — and  thus  satisfy  the  judgment  pro  tanto,  and  upon 
a  suit  on  his  bond,  call  the  defendant  as  a  witness  to  establish  that 
the  goods  were  not  his,  under  some  colorable  and  fraudulent  trans- 
fer, made  for  the  purpose  of  defeating  the  creditor,  and  thereby 
hinder  and  delay  creditors  and  involve  them  in  embarrassing  law- 
suits. 

The  sheriff  has  the  remedy  in  his  own  hands.  If  a  claim  is 
set  up  to  the  property  ostensibly  belonging  to  the  defendant  and  in 
his  possession,  which  would  make  a  reasonable  man  pause  and 
doubt,  he  may  in  England  summon  a  jury  to  try  the  right,  and  tliis 

"The  arguments  of  counsel  and  part  of  the  opinion  are  omitted.  The  case 
i<;  at  common  law,  prior  to  the  Interpleader  Act  of  1848,  see  note,  post  page  734. 


/o' 


?0  EXECUTION 


would  protect  him.  as  is  said  in  3  F.ac.  Ahr.  Slicriff,  N.  6,  scl 
qucrc?*  or  he  may  apply  to  the  court  to  cnlarj:^c  the  time  of  makinr; 
his  return  until  an  indemnity  has  been  given  to  him;  i  Taunton, 
120.  Although  that  proceeding  has  not  been  adopted  here,  a  remedy 
equally  efficacious  is  at  hand.  He  is  authorized  in  such  circum- 
stance's of  reasonable  doubt,  when  the  property  is  claimed  by  a 
stranger,  to  demand  indenmity  from  the  plaintiff,  and  if  he  refuse 
to  give  it,  the  officer  may  refuse  to  levy  and  sell,  and  make  a  special 
return  to  the  court.  i6"Serg.  &  R.  (Pa.)  68.  But  when,  regardless 
of  these  safeguards,  the  sheriff  chooses  to  return  a  levy,  it  is  at  his 
own  peril,  because  the  judgment  creditor  is  thereby  estopped  and 
hindered,  and  may  be  deprived  of  his  right,  unless  the  sheriff  be 
responsible  for  his  own  official  act.  In  the  whole  range  pf  English 
decisions,  there  is  perhaps  but  one  exception;  and  that  is  where  a 
levy  is  returned  on  the  goods  of  a  person  who  is  afterwards  de- 
clared a  bankrupt,  but  the  act  of  bankruptcy  was  committed  before 
levy.  In  such  a  case  the  assignee  in  bankruptcy  is  entitled  to  the 
goods,  and  the  sheriff  being  ignorant  of  the  act  of  banlcruptcy  at 
the  time  of  tlie  levy  and  return,  is  relieved  from  its  force  and  the 
liability  it  creates.  6  Maule  &  Selw.  42.  But  this  exception  to  the 
general  rule  seems  to  be  founded  on  the  peculiar  policy  of  the  bank- 
rupt system ;  a  cherished  policy  in  England,  and  which  overrides 
other  rules  for  the  purpose  of  giving  efficacy  to  its  peculiar  feature — 
an  equilibrium  among  creditors  at  the  date  of  the  act  of  bankruptcy. 
If  the  goods  are  eloigned  or  rescued,  the  sheriff  is  liable.  2  Saund. 
343.  And  the  English  courts  will  only  interfere  to  relieve  a  sheriff 
from  the  dilemma  of  an  adverse  claim  by  extending  the  time  for 
making  his  return,  at  their  discretion,  and  upon  such  terms  as  they 
think  right.  4  Taimt.  585;  i  Taunt.  120.^  In  New  York  it  has  been 
ruled  that  it  is  the  duty  of  the  sheriff  to  sell  the  goods  seized,  and 
which  are  claimed  by  a  stranger,  unless  they  are  proved  before  an 
inquest  which  the  sheriff  has  authority  to  impanel,  not  to  be  the 
goods  of  the  defendant.  In  that  case  he  may  return  nulla  bona ;  but 
even  on  inquest  found,  if  the  plaintiff  gives  him  indemnity,  he  is 

'The  sheriff  could  summon  a  jury  to  inquire  as  to  the  fact  of  ownership, 
Farr  v.  Newman,  4  T.  R.  621  (1792),  at  p.  633;  Roberts  v.  Thomas,  6  T.  R.  88 
(1794);  Bayley  v.  Bates,  8  Johns.  (N.  Y.)  185  (1811)  ;  Philips  v.  Harriss, 
3  J.  J.  Mar.  (Ky.)  122  (1829),  but  the  findings  of  the  jury  were  not  con- 
clusive, Latkow  v.  Earner,  2  H.  Bl.  437  (i795)  ;  Glossop  v.  'Pole,  3  M.  &  S. 
175  (1814)  ;  Chinn  v.  Russell,  2  Blackf.  (Ind.)  172  (1828)  ;  Cassell  v.  Wil- 
liams, 12  111.  387  (1851)  ;  Roii-e  v.  Bowen,  28  111.  116  (1862)  ;  Cohen  v.  Climax 
Cycle  Co.,  19  App.  Div.  158,  46  N.  Y.  S.  4,  4  Ann.  Cas.  332  (1897). 

"While  the  sheriff  could  apply  to  the  court  for  further  time  to  make 
his  return,  so  that  during  the  interval  the  question  of  property  might  be 
settled  or  one  or  the  other  of  the  parties  interested  might  indemnify  him 
against  either  proceeding  with  the  levy  or  making  a  return  of  nulla  bona, 
Watson  on  Sheriffs,  195;  Murfree  on  Sheriffs,  §  581,  it  was  wholly  dis- 
cretionary with  the  court  whether  it  would  interfere  at  all  or  upon  what  terms 
it  would  do  so.  See  Wells  v.  Pickman,  7  T.  R.  174  (i797)  ;  King  v.  Bridges, 
7  Taunt.  294  (1817)  ;  V enables  v.  Wilks,  4  Moore  339  (1820);  Etchclls  v. 
Lorait,  9  Price  54  (1821)  ;  Ledbury  v.  Smith,  i  Chitty  294  (1819)  ;  Burr  v. 
Freethy,  i  Bingh.  71  (1822)  ;  Robey  v.  State,  94  Md.  61,  50  Atl.  411,  89  Am. 
St.  405  (1901). 


MILLER   V.    COMMONV/EALTH  731 

bound  to  proceed.  8  Johns.  (N.  Y.)  185.^  The  rights  of  judgment 
creditors  can  not  be  disregarded.  A  judgment  would  be  of  Httle 
value  if  it  could  be  hindered  in  execution  by  frivolous  pretenses,  and 
sham  and  fraudulent  transfers  of  property.  The  sheriff  is  bound  to 
execute  his  writ,  saving  only  when  he  adopts  the  means  furnished  for 
his  security,  and  which  do  not  injure  or  defeat  the  creditor.  But  if 
he  goes  on  to  execution  without  resort  to  these,  seizes  goods,  and 
makes  return  of  record  so  as  to  render  the  judgment  extinct  pro 
tanto,  and  defeat  and  delay  its  further  execution,  to  the  manifest 
injury  of  the  plaintiff,  he  does  so  at  his  own  peril,  and  every  consid- 
eration of  public  policy  requires  that  he  should  be  held  accountable. 
In  Hall  V.  Ga/&rai/A,  8^  Watts_X£a-)^20^it  v;as  ruled  by  this  court 
thataTconstabTe  who  has  reason  to  doubt  the  ownership  of  goods,  may 
require  the  plaintiff  to  indemnify  him,  and  if  he  refuses  to  sell,  not 
having  done  so,  he  becomes  liable.  The  discriminating  and  accurate 
judge  who  delivered  the  opinion  in  that  case,  assimilates  the  proceed- 
ing to  like  transaction  on  the  part  of  the  sheriff,  and  fully  sustains 
the  case  in  16  Serg.  &  R.,  already  referred  to.  It  would  seem,  there- 
fore, that  in  cases  where  a  sheriff  returns  that  he  has  levied  the 
goods  of  the  defendant,  he  is  to  be  bound  by  it.^  He  ought  to  sell  on 
his  fieri  facias,  but  if  he  return  the  levy,  the  venditioni  exponas  may 
be  issued  to  compel  him  to  sell,  and  bring  him  into  contempt  if  he 
does  not. 

The  plaintiff  stated  that  a  brother  of  one  of  the  defendants 
claimed  part  of  the  lumber,  but  he  should  go  on  and  make  the  levy, 

^Accord:  Townsend  v.  Phillips,  10  Johns.  (N.  Y.)  98  (1813)  ;  Van  Cleef 
V.  Fleet,  15  Johns.  (N.  Y.)  147  (1818)  ;  Piatt  v.  Sherrv,  7  Wend.  (N.  Y.)  236 
(1831);  Curtis  V.  Patterson,  8  Cow.  (N.  Y.)  65  (1827);  Ball  v.  Pratt,  36 
Barb.  (N.  Y.)  402  (1862)  ;  Cohen  v.  Climax  Cycle  Co.,  19  App.  Div.  158,  46 
N.  Y.  S.  4,  4  N.  Y.  Ann.  Cas.  332  (1897)  ;  N.  Y._  Code  Civ.  Pro.,  §§  1418-20. 
If  the  undertaking  is  given  the  ofiBcer  must  detain  the  property  as  belonging 
to  the  judgment  debtor. 

*In  Dorin  V  McCandless,  146  Pa.  St.  344.  23  Atl.  245,  28  Am.  St.  798 
(1891),  the  sheriff  took  possession  of  goods  pointed  out  to  him  by  the  plain- 
tiff as  the  property  of  the  debtor,  and,  upon  a  claim  by  a  third  person,  re- 
linquished possession  and  returned  the  writ  nulla  bona  without  demanding 
indemnit}-.  In  an  action  against  him  for  failing  to  sell  it  was  held  error  to 
refuse  to  permit  him  to  show  that  the  goods  belonged  to  the  claimant. 
Miller  v.  Commonwealth  was  distinguished  on  the  ground  that  in  that  case 
the  sheriff  had  returned  a  levy  and  that  he  should  not  be  allowed  to  con- 
tradict his  own  return.  The  court  says,  per  Paxson,  C.  J. :  "The  true 
rule  to  be  deduced  from  the  authorities  is  this :  that  when  the  sheriff  returns 
an  execution  nulla  bona,  he  does  so  at  his  own  risk,  and  if  it  is  shown  that 
there  is  property  of  the  defendant  which  he  might  and  ought  to  have  levied 
upon,  he  will  be  responsible.  It  is  competent,  however,  for  him  to  show  that 
the  property  pointed  out  to  him  was  the  property  of  a  stranger.  In  other 
words,  he  may  show  his  return  to  be  true,  for  if  true,  the  plaintiff  in  the 
execution  has  sustained  no  injury."  See  further  Comm.onwealth_w^_Vandykef 
^STjPa^t.  34  (1868X:  Smith  V.  Cicotte,  iiTSIich.  383  (1863)  ;  Sage  v.  Dickinson, 
~33  Grat.  (Va.)  361  (1880)  ;  State  v.  Langdon,  57  Mo.  353  (1874)  ;  Hamhlct 
V.  Herndon,  3  Humph.  (Tenn.)  34  (1842)  ;  Adams  v.  Disston,  44  N.  J.  L.  662 
(1882).  As  to  the  constitutionality  of  a  statute  restricting  a  claimant  to  an 
action  on  the  bond  see  Fonlc  v.  Mann,  53  Iowa  42,  3  N.  W.  814  (1879); 
Cheadle  v.  Guitlar,  68  Iowa  680,  28  N.  W.  14  (1886),  and  compare  Harris  v. 
Krause,  60  N.  J.  L.  72,  37  Atl.  439  (1897). 


~32  EXFXUTION 

and  they  would  then  sec  wlio  owned  tlic  property  ;  that  he  would  give 
a  hond  of  iiulcmnity  before  the  sak%  if  rec|uired.  The  sheriff  was  sat- 
isfied witli  this  arrangement,  but  never  did  levy  on  the  lumber,  and 
never  called  upon  or  notihed  the  plaintiff,  but  made  the  levy  on  the 
other  property,  and  returned  that  levy.  Evidence  on  both  sides  was 
given  as  to  the  ownership  of  tliis  lumber,  and  the  transaction  bears 
strong  impress  of  a  fraudulent  arrangement  between  the  brother  and 
one  of  the  defendants  to  cheat  his  creditors.  The  facts,  however, 
were  fully  submitted  to  the  jury.  But  the  court  said  that  the  testi- 
mony given  in  relation  to  the  indemnit}''  related  to  the  lumber,  as  it 
was  only  with  regard  to  that,  there  was  understood  to  be  any  dis- 
pute. The  learned  judge  tlien  states  the  law  correctly;  that  if  the 
sheriff  had  agreed  to  levy  on  the  lumber,  upon  the  condition  that 
Allison  would  indemnify  him  at  any  time  afterwards  before  sale, 
if  required,  and  the  sheriff  neglected  to  make  the  levy,  and  never  in- 
formed the  plaintiff",  or  called  on  him  for  indemnity,  that  the  officer 
was  liable.  In  the  case  of  the  Coiiim^ijiS!£altA.-:^i^-dl'JltinQugh^_6 
Whaj-t^  (Pa J  117,  it  was  decided  that  the  sheriff  was  not  bound 
knowingly  and  wilfully  to  levy  on  the  property  of  a  stranger  even 
before  indemnity  offered,  but  that  where  the  plaintiff  showed  the 
property  and  there  was  tolerable  evidence  of  title,  such  as  possession 
in  defendant,  the  sheriff  w^as  bound  to  levy  upon  it,  being  indemni- 
fied, or  answer  in  damages,  and  that  in  such  case  a  stranger  could  not 
maintain  trespass  without  showing  clearly  and  satisfactorily  that 
tlie  property  belonged  to  him.  In  the  case  at  bar  the  jury  determined 
the  property  to  be  in  defendant,  and  assessed  damages  accordingly. 
Judgment  affirmed.^" 

"On  a  fieri  facias  at  common  law  the  sheriff  was  bound  at  his  peril  to 
take  only  the  goods  of  the  defendant;  and  therefore,  if  he  took  the  goods 
of  a  stranger^  although  the  plaintiff  declared  they  were  the  property  of  the 
defendant,  he  was  a  trespasser,  for  he  was  "obliged  at  his  peril  to  take  notice 
whose  the  goods  are."  Bacon's  Abridgement,  Execution  (c)  ;  Sanderson  v. 
Baker,  2  Wm.  Bl.  832  (1772)  ;  Ackworth  v.  Kempe,  4  Dougl.  40  (1778)  ; 
Glasspoole  v.  Young,  9  B.  &  C.  696  (1829).  The  following  courses  were  open 
to  him:  (i)  To  levy,  sell  and  run  the  risk  of  a  suit  by  the  claimant.  (2)  To 
return  the  writ  nulla  bona  and  run  the  risk  of  a  suit  by  the  plaintiff.  (3)  To 
apply  to  the  court  for  further  time  to  make  his  return  so  that  during  the 
interval  one  of  the  parties  might  indemnify  him  for  either  proceeding  with 
the  levy  or  making  a  return  nulla  bona.  (4)  To  summon  a  jury  to  satisfy 
himself  as  to  the  fact  of  ownership,  but  such  action  was  of  little  value, 
since  the  verdict  was  not  conclusive  against  the  claimant,  nor  against  the 
plaintiff  in  execution,  although  in  his  case  perhaps  admissible  in  mitigation 
of  damages.     See  cases  in  note  6  supra.    Tidd's  Practice  (1828)  1008. 

In  many  of  the  American  states  there  is  a  statutory  proceeding,  modelled 
on  the  sheriff's  inquest,  for  determining  before  sale  the  right  of  property  in 
chattels  taken  in  execution.  The  state  laws  differ  widely  in  their  provisions. 
In  some  the  claimant  is  free  to  pursue  his  common-law  remedies,  in  others 
the  judgment  is  conclusive,  at  least  as  to  the  sheriff's  responsibility.  Text 
writers  regard  them  as  cumbersome  and  inadequate.  Freeman  on  Executions 
(3d  ed.),  §  277;  Murfree  on  Sheriffs,  §  584.  Compare  N.  Y.  Code  Civ.  Pro., 
§  1418  et  scq.,  and  cases  in  note  8  supra  with  Comp.  Stat.  N.  J.  (1910), 
Executions,  §  34,  and  Harris  v.  Krause,  60  N.  J.  L.  72,  27  Atl.  439  (1897). 

In  Massachusetts  it  is  provided:  "If  there  is  reasonable  doubt  as  to 
the  ownership  of  the  property,  or  as  to  its  liability  to  be  taken  on  execution, 
the  officer  may  require  sufficient  security  of  the  creditor  to  indemnify  him 
for  taking  it."    Rev.  L.  Mass.   (1902),  ch.   177,  §  35.    If  the  officer  neither 


SLINGSBY    v.    BOULTON  733 

SLINGSBY  V.  BOULTON 

In  Chancery  Before  Lord  Eldon,  1813 
I  Ves.  &  B.  334 

In  1812,  the  plaintiff,  being  sheriff  of  Yorkshire,  received  a  writ 
of  fieri  facias  upon  a  judgment  obtained  by  the  defendant,  Boulton, 
against  the  other  defendant,  indorsed  for  £446.  The  plaintiff  levied  ; 
but  receiving  notice,  and  a  copy  of  a  settlement  of  part  of  the  goods, 
he  made  no  return;  but  afterwards  paid  in  £329  2s.,  being  the  resi- 
due of  the  levy  after  deducting  the  sum  paid  to  the  trustees  of  the 
settlement ;  who  brought  an  action  of  trover  against  the  plaintiff  for 
the  goods  in  settlement ;  and,  tlie  defendant,  Boulton,  also  claiming, 
the  plaintiff  filed  a  bill  of  interpleader;  offering  to  bring  the  money 
into  court,  if  the  court  should  be  of  opinion,  that  under  the  circum- 
stances he  ought  to  do  so ;  and  moved  for  an  injunction. 

Mr.  Barber,  for  the  motion,  admitted  that  this  was  a  bill  of  inter- 
pleader without  bringing  the  money  into  court;  but  insisted  that 
under  the  circumstances  of  the  case  it  was  not  necessary. 

Mr.  Johnson,  for  the  defendant,  resisted  the  motion,  on  the 
ground  that  the  interposition  of  this  court  to  compel  defendants  to 
interplead  could  not  be  obtained,  when  the  fund  was  not  deposited. 

The  Lord  Chancellor:  Is  there  any  instance  of  a  bill  of  inter- 
pleader by  the  sheriff?  He  acts  at  his  peril  in  selling  the  goods ;  and 
is  concluded  from  stating  a  case  of  interpleader ;  in  which  the  plain- 
tiff always  admits  a  title  against  himself  in  all  defendants.  A  person 
can  not  file  a  bill  of  interpleader,  who  is  obliged  to  put  his  case  upon 
this,  that  as  to  some  of  the  defendants  he  is  a  wrongdoer.^^ 

demands  this  nor  asks  specific  directions,  but  assumes  the  responsibility  of 
executing  his  process  in  his  own  way,  he  can  not  require  indemnity  when 
subsequently  to  his  action  controversy  arises.  Russell  v.  Walker,  150  Mass. 
531  (1890).  The  laws  of  IHinois,  Alaine,  Michigan  and  Kansas  are  sub- 
stantially the  same  as  of  Massachusetts.    Murfree  on  Sheriffs,  §§  592,  593. 

"Accord:  Shaw  v.  Chester,  8  Paige  Ch.  339  (1840),  affirming  2  Edw.  Ch. 
405  (1834);  Qidnn  v.  Green,  1  Ired.  Eq.  (N.  Car.)  229  (1S40);  Quinn  v 
Patton,  2  Ired.  Eq.  (N.  Car.)  48  (1841)  ;  Parker  v.  Barker,  42  N.  H  78  77 
Am.  Dec.  789  (i860)  ;  Rogers  v.  Weir,  34  N.  Y.  463  (1866)  semble;  Dewey 
V.  White,  65  N.  Car.  225  (1871)  ;  First  Nat.  Bank  v.  Bininger,  26  N.  J.  Eq. 
345  (1875)  ;  Third  Nat.  Bank  v.  Skillings  Lumber  Co.,  132  Mass.  410  (1882). 
Cf.  Starrs  v.  Payne,  4  Hen.  &  Munf.  (Va.)  506  (1810)  ;  Nash  v.  Smith,  6 
Conn.  421  (1827)  ;  Lawson  v.  Jordan,  19  Ark.  297,  70  Am.  Dec.  596  (1858). 

In  England  substantial  relief  was  afforded  to  sheriffs  by  the  Interpleader 
Act  of  1831  (I  &  2  Will.  IV  4,  ch.  58,  §  6),  which  provided  that  where  claims 
were  made  by  persons,  not  parties,  against  whom  the  process  issued,  to  any 
goods  or  chattels  taken  or  intended  to  be  taken  in  execution,  upon  applica- 
tion of  the  sheriff,  or  other  officer,  it  should  be  lawful  for  the  court  from 
which  the  process  issued  to  call  before  them  the  party  issuing  the  process 
and  the  party  making  the  claim  and  thereupon  to  exercise  for  the  relief 
of  the  sheriff  the  powers  contained  in  the  act,  that  is  to  compel  the  claimant 
to  appear  and  maintain  or  relinquish  his  claim,  to  order  the  trial  of  a  feigned 
issue,  or,  with  the  consent  of  the  parties,  to  dispose  of  the  merits  of  their 
claims  in  a  summary  manner.  The  judgment  in  an  interpleader  proceeding 
IS  conclusive.  Act  of  23  &  24  Vict,  (i860),  ch.  126,  §  17.   The  subject  is  now 


734  EXECUTION 

DE  COPPETT  V.  BARNETT 
Court  of  Appkal,  1901 

17  Times  L.  Rep.  273 

This  was  an  appeal  from  an  order  made  by  Mr.  Justice  Darling 
at  Chambers.  The  plaintiff,  de  Coppett,  carried  on  business  as  a 
lodging-house  keeper  in  Clarges  street,  Piccadilly,  and  he  had  on 
his  premises  tliirty-three  cases  of  wine,  which  had  been  deposited 
with  him  by  one  Captain  Bell  as  security  for  an  advance  of  money, 
and  which  he  had  subsequently  been  authorized  by  Captain  Bell  to 
sell  in  order  to  repay  the  debt.   The  defendant,  Barnett,  who  was 

povemcd  by  the  Rules  of  the  Supreme  Court  of  Judicature.  Act  of  46  &  /\,'7 
Vict.  (1883),  ch.  49;  Order  LVII,  rule  I,  "wliich  provides:  "Relief  by  way 
of  interpleader  may  be  granted  *  *  *  where  the  applicant  is  a  sheriff 
or  other  officer  charged  with  the  execution  of  process  by  or  under  the 
authority  of  the  High  Court,  and  any  claim  is  made  to  any  money,  goods,  or 
chattels  taken  or  intended  to  be  taken  in  execution  under  anj^  process,  or 
the  proceeds  or  value  of  an\'  such  goods  or  chattels,  by  any  person  other  than 
the  person  against  whom  the  process  issued."  The  sheriff,  however,  may 
proceed  with  the  execution  if  he  thinks  proper.  Harrison  V.  Foster,  4  Dowl. 
P.  C.  588  (1836).  See  further  Allen  v.  Gibbon,  2  Dowl.  P.  C.  292  (1833)  ; 
Holton  V.  Giintrip,  6  Dowl.  P.  C.  130  (1837)  ;  Claridge  V.  Collins,  7  Dowl.  698 
(1839)  ;  ly inter  V.  Bartholomew,  II  Exch.  704  (1856)  ;  Richards  v.  Jenkins, 
L.  R.  18  Q.  B.  Div.  451  (1S86)  ;  Goodman  v.  Blake,  L.  R.  19  Q.  B.  77  (188,7)  : 
Van  Laun  v.  Baring,  L.  R.  (1903)  2  K.  B.  277;  Cox  v.  Bowen,  L.  R.  (1911) 
2  K.  B.  611.  Generally,  where  the  claimant  does  not  enter  security  the  court 
orders  the  sale  of  the  goods.  Paquin  v.  Robinson,  85  L.  T.  5  (1901)  ;  Discount 
Banking  Co.  v.  Lambarde,  L.  R.  (1893)  2  Q.  B.  329. 

In  Pennsylvania—the  F.ngh'sh  prnrpdnre-jauis__adopted,  the  Interpleader 
'Act"of  April  TO,  tS,i8,  P.  L.  448,  §  g,  being  almost  a  verbatim  copy  of  the 
Act  of  I  &  2  Will.  IV;  Troubat  and  Haly's  Practice  (Wharton's  ed.)  721. 
The  practice  has  been  further  defined  by  the  Act  of  May  26,  1897.  P.  L.  95, 
P.  &  L.  Dig.  (2d  ed.)  3439,  which  is  a  consolidation  of  the  existmg  statutory 
law  and  in  addition  puts  into  statutory  form  the  principal  parts  of 
the  practice  already  established  by  the  decisions.  When  goods  levied  on  are 
claimed  by  a  third  person,  the  sheriff  applies  for  a  rule  to  show  cause  why 
an  issue  should  not  be  framed  to  determine  the  ownership.  Berger  &  Wirt  It 
V.  H.  W.  Jnerpen  Sr  Co..  7  Fa.  Super.  Ct.  388  (1898)  ;  Barton yZlieynoids, 
17  Pa.  Super.  Ct.  =^04  (looi).  If  the  rule  is  made  absolute7  the  claimant  gives 
bond  to  maintain  his  title  and  receives  the  goods,  otherwise  the  court  may 
direct  a  sale.  Blackstaff  v.  Dn  Pont  De  Nemours  Powder  Co  ,  48  Pa.  Super. 
Ct.  470  (1912).  In  the  issue  the  claimant  is  the  plaintiff  and  the  other  parties 
defendants.  Prowst  v.  Alneo.  8JPa.  D.^^^jTjjSoo'). 

Under  the  Act  of  1848  the  discharge  of  a  rule  for  an  interpleader  did 
not  affect  the  claimant's  rights,  Bainj^Funk,  61  Pa.  St  185  (1869).  But 
section  15  of  the  Act  of  1S97  provides  that  if  the^ieriff^cornplics  with  the 
provisions  of  the  act,  "he  shall  be  freed  from  all  liability  to  the  claimant, 
the  plaintiff  and  defendant  in  the  execution,  the  person  found  in  possession  of 
the  goods  and  chattels  levied  on  or  seized,  and  every  other  person  who  had 
knowledge  of  such  levy  or  seizure  prior  to  the  sale  of  said  goods  and  chattels, 
or  who  shall  take  any  step  under  the  provisions  of  this  act."  As  this  deprives 
the  claimant  of  his  right  of  action  against  the  sheriff,  he  is  a  party  aggrieved 
by  the  discharge  of  a  rule  for  an  issue  and  may  question  the  order.  'Book  v. 
Day.  180  Pa.  St.  44.  41  Atl.  998  (1899).  If  the  sheriff  does  not  proceed 
unrl'T  the  act  he  remains  liable  as  formerly  to  plaintiff  or  the  claimant. 
ArrjV£r  v.  Sedjjwick.  ^6  Pa.  Super.  Ct.  593  (1908).  Where  the  sheriff  in 
making  a  levy  is  subjected  to  no  risk,  as  in  the  case  of  a  chattel  real,  he  is 
not  entitled  to  an  interpleader.  Maurer  v.  Sheaf er,  116  Pa.  339,  9  Atl.  860 
(1887). ^^^ 


DE  COPPETT    V.    BARNETT  735 

a  judgment  creditor  of  Captain  Bell  and  had  obtained  a  writ  of 
fieri  facias  against  him,  went  to  the  plaintiff's  premises  with  an  officer 
of  the  sheriff  of  Middlesex  named  Mountjoy,  and  some  other  men, 
and  forcibly  removed  the  wine.  For  this  trespass  the  plaintiff 
brought  an  action  against  Barnett,  Mountjoy  and  Sir  George  Her- 
bert, the  sheriff.  The  question  as  to  the  right  to  the  wine  having 
been  brought  before  Mr.  Justice  Channel!  on  interpleader  proceed- 
ings, that  learned  judge  directed  that  an  interpleader  issue  should 
be  tried,  and  that  no  action  should  be  brought  or  continued  against 
the  sheriff  pending  the  interpleader  proceedings.  The  issue  was  tried 
before  Mr.  Justice  Darling,  who  decided  the  matter  in  favor  of  the 
plaintiff,  de  Coppett,  and  directed  that  the  action  against  the  sheriff 
should  not  be  barred.  The  action  thereupon  continued,  and  after 
various  proceedings  had  been  taken,  the  case  again  came  before  Mr. 
Justice  Darling  on  an  appeal  by  the  plaintiff  from  an  order  giving 
the  defendants  further  time  for  delivering  their  defense.  The 
learned  judge  dismissed  the  plaintiff's  appeal,  and  added  to  the  or- 
der an  expression  of  his  opinion  that  there  ought  not  to  be  an  action 
against  the  sheriff.   From  this  order  the  plaintiff  appealed. 

Mr.  Carrington  appeared  for  the  plaintiff,  Mr,  P.  Rose-Innes 
for  the  sheriff. 

The  Master  of  the  Rolls^^  said  there  had  clearly  been  a  trespass 
in  this  case,  and  the  question  was  whether  the  plaintiff's  action 
against  the  sheriff  ought  to  be  barred.  Mr.  Rose-Innes  had  referred 
to  the  case  of  Smith  v.  Critch field,  14  Q.  B.  Div.  873.  That  only 
showed  that  a  sheriff  might  be  protected  against  an  action  for  tres- 
pass if  no  substantial  grievance  had  been  done  to  the  person  whose 
premises  were  wrongfully  entered. ^^  The  evidence  here  showed 
that  the  plaintiff  had  been  disturbed  in  the  enjoyment  of  the  prem- 
ises, and  had  suffered  damage.  In  his  opinion  the  order  appealed 
against  was  a  remarkable  order,  and  he  thought  that  the  clause  ex- 
pressing the  learned  judge's  opinion  that  there  ought  to  be  no  action 
against  the  sheriff  should  be  struck  out.  The  plaintiff  would,  there- 
fore, be  at  liberty  to  continue  his  action. 

Lord  Justice  Romer  concurred. 

Appeal  allowed. 

"Sir  A.  L.  Smith. 

"Accord:  Winter  v.  Bartholomew,  il  Exch.  704  (185-6),  distinguishing 
if  not  overruling  H  oilier  v.  Laurie,  3  C.  B.  334  (1846)  ;  Smith  v.  Critch  field, 
L.  R.  14  O.  B.  Div.  873  (i88s);  London,  Chatham  &c.  R.  Co.  v.  Cable, 
80  L.  T.  119  (1899).  See  also  Holt  v.  Frost,  3  H.  &  N.  821  (1858)  ;  Hooke 
V.  Ind,  Coope  &  Co.,  36  L.  T.  467  (1877). 

In  Zachartas  v  Toiton,  go  Pa.  St.  286  (1879).  the  sheriff,  by  direction  of 
the  execution  creditor  and  upon  being  indemnified,  levied  on  goods  in  pos- 
session of  the  claimant  as  the  property  of  the  execution  debtor  and  after- 
ward applied  for  and  obtained  an  order  for  an  interpleader.  The  trial  of 
the  issue  resulted  in  favor  of  the  claimant  and  he  took  out  of  court  the 
proceeds  of  the  sale  of  his  goods.  Thereafter  he  brought  trespass  de  bonis 
asportatis  against  the  sheriff  and  the  execution  creditor.  Held,  reversing 
judgment  for  the  defendants  that  neither  of  them  could  justify  under  the 
interpleader  act  for  anything  done  prior  to  the  inception  of  the  proceedings 
thereunder.  But  compare  Act  of  1897,  supra.  See  also  Walker  v.  Olding, 
I  H.  &  C.  621  (1862)  ;  Abbey  v.  Searls,  4  Ohio  St.  598  (1855)  ;  Phillips  v. 
Reagan,  75  Pa.  St.  381  (1874)  ;  Hibbard  v  Thrasher,  65  111.  479  (1872).    ^ 


730  EXECUTION 

SECTION  7.    THE  SALE  AND  RETURN 

THOMSON  z:  CLERK 

Court  of  Qiteen's  Bl.ncii,  1596 

I  Cro.  Elh.  504 

Trover  and  conversion  of  goods,  at  D.  in  comitat.  Nott.  The 
<lefendant  saith,  that  he  recovered  against  the  plaintiff  a  debt  of  £20 
by  bill  in  the  Queen's  Bench,  and  thereupon  had  a  fieri  facias,  di- 
rected to  the  sheriff  of  York,  who,  at  Wakefield,  in  comitat.  Eborum, 
seized  those  goods,  and  delivered  them  unto  him  in  satisfaction  of 
this  execution;  and  so  justifies  the  conversion.  It  was  thereupon 
demurred,  and  without  argument  ruled,  that  the  pleading  was  ill. 
Because^*  .  .  .  the  sheriff  upon  a  writ  of  fieri  facias  can  not 
deliver  the  defendant's  goods  to  the  plaintiff,  in  satisfaction  of  his 
debt.  Wherefore  it  was  adjudged  for  the  plaintiff.^^ 


"Part  of  the  judgment,  on  points  of  pleading,  is  omitted. 

"Accord:  Bcaly  v.  Smtif'son,  2  Vent.  93  (1689);  Holm  v.  Hunter,  12 
Mod.  494  (1609)  ;  Cargle  v.  Knox,  143  Ga.  597,  85  S.  E.  764  (1915).  Upon  a 
writ  of  fieri  facias  the  goods  must  be  sold  and,  in  strictness,  the  money- 
brought  into  court.  Bacon's  Abridgement,  Executions  (c)  ;  Clerk  v.  Withers, 
I  Salk.  2^2,  2  Ld.  Raym.  1072  (1704)  ;  Leader  v.  Danvers,  1  Bos.  &  P.  359 
(1798);  Bcalcjs  Exrs.  y.ConxmmiWi'JiIJ]L_JJL.SsxZ-^&-J^^L^i^^)  299  (1824); 
CampheU'w.  Cobb,  2  bneed  (TenrO  18  (1854).  But  at  the  sale" the  judgment 
creditor  may  become  a  purchaser.  Petit  v.  Benson,  Comb.  452  (1696); 
Stratford  v.  Tu-ynan,  Jac.  418  (1822);  Attv.-Gcn.  v.  Fort,  8  Price  364  note 
(1804)  ;  Cookson  v.  Fryer,  i  F.  &  F.  328  (1858)  ;  Dclisle  V.  Dczvitt,  18  U.  C. 
Q.  B.  1^5  (1859)  ;  Villars  v.  Rogers,  L.  R.  9  Ch.  App.  439  (1874)  ;  Morris' 
Estate,  Crabbe  (U.  S.)  70  (1836);  Smnll  v.  Jones,  i  Watts  &  S.  (Pa.')  128 
(1841)  ;  Cavcnder  v.  Smith,  I  Iowa  306  (1855)  ;  Dicker)iian  v.  Burgess,  20 
111.  266  (1858)  ;  Boos  V.  Morgan,  130  Ind.  305,  30  N.  E.  141,  30  Am.  St.  237 
(1891)  ;  Bradley  v.  Hefferman,  156  Mo.  653,  57  S.  W.  763  (1900).  In^Pcnij- 
sylvania,  where  there  is  a  sale  by  the  officer  to  the  execution  creditor  in  the 
absence  of  anj-  other  bidder  or  bystander,  collusion  will  be  presumed. 
RirkritS  V.  TJnnngst,  1=;  Pa.  QO,  '^^  Am.  Dec.  572  (1850);  McMichagL 'V .^M£- 
Dernioti,,  17  Pa.  St.  353,  55  Ani.  Dec.  560  (1851)  ;  Conniff'v.  Dovle.  8  Phila. 
(Pa.)  630  (1871).  Contra:  State  v.  Johnson,  2  N.  Car.  (Hayw.)  293  (179S)  ; 
Learned  v.  Geer,  139  IVIass.  31,  29  N.  E.  215  (1885)  semble;  Power  v.  Larahee, 
3  N.  Dak.  502,  57  N.  W.  789,  44  Am.  St.  577  (1894)  ;  Gilbert  v.  Watts-DeGol- 
yer  Co.,  169  111.  129,  48  N.  E.  430,  61  Am.  St.  154  (1897)  ;  and  see  Swiresjv. 
Brotherline.  41  Pa.  St.  1.';=;,  80  Am.  Dec.  601  (1861). 

In  Owen  \.  Barksdale,  30  N  Car.  81,  47  Am.  Dec.  348  (1847),  it  is  said: 
■"When  a  sheriff  receives  an  execution,  it  is  his  duty  to  levy  it,  and  make 
public  sale  of  the  property'  so  levied  on ;  he  can  not  deliver  it  to  the  plaintiff 
in  the  execution  in  satisfaction  of  his  debt,  nor  can  he  sell  it  at  private  sale; 
and  until  he  does  sell  it  as  the  law  directs,  his  deed  can  convey  no  title  to  the 
purchaser.  It  is  the  judgment,  execution,  sale  and  conveyance  by  him  that 
completes  the  conversion  of  the  property."  Bingjiam  V.  Young,  10  Pa.  St.  3^5 
<  18.19)  ;  Dickerman  v.  Burgess,  20  111.  266  (iSsSy;  Mechanics^Bank'v.  tHtt, 
^..\  Mo.  364  (1869)  ;  Shcehy  v.  Graves,  58  Cal.  449  (1881). 


i 


WALLER   V.    WEEDALE  737 

WALLER  V.  WEEDALE 

Court  of  Common  Bench,  1604 

Noy  107 

In  detinue  the  case  was  thus :  A  had  recovered  In  debt  against 
W  and  execution  awarded  to  the  now  defendant  being  then  sheriff 
of  Southampton ;  who  takes  the  goods,  etc.,  and  returns  a  fieri  facias 
et  denarios  habeo,  but  none  of  the  goods  were  sold  before  the  return, 
but  the  sheriff  kept  them  in  his  hands;  and  judgment  now  for  the 
plaintiff.  For  the  sheriff  can  not  detain  the  goods  taken  upon  an 
execution  in  his  own  hands,  and  satisfy  the  debt  of  his  proper 
money.  But  he  ought  to  sell  them  upon  a  venditioni  exponas,  and 
may  return  upon  his  so  doing,  quod  non  invenit  emptores ;  for  a 
grand  inconvenience  would  ensue,  if  the  sheriff  himself  might  retain 
them.is 


JOHN  J.  REYNOLDS  v.  THOMAS  T.  HOXSIE 

Supreme  Court  of  Rhode  Island   i860 

6  R.  I.  463 

Ejectment  to  recover  part  of  a  tract  of  land  known  as  the  Reyn- 
olds Hoxsie  farm.  At  the  trial  it  appeared  that  the  plaintiff  claimed 
title,  under  a  sheriff's  deed,  to  the  interest  of  Reynolds  Hoxsie,  Jr., 
which  was  sold  to  the  plaintiff  on  July  28,  1855,  as  the  highest  bid- 
der, at  a  sale  under  a  levy  thereon  of  an  execution  in  favor  of  the 

"So  also,  the  general  rule  is  that  the  officer  making  the  sale,  or  his 
deputy,  can  not  directly  or  indirectly  become  the  purchaser  of  the  property 
sold.  Ormond  v.  Faircloth,  I  Murph.  (5  N.  Car.)  35  (1804)  ;  Mark  v.  Law- 
rence, 5  Har.  &  J.  (Aid.)  64  (1820)  ;  Mills  v.  Goodsell,  5  Conn.  475,  13  Am. 
Dec.  90  (1825)  ;  Perkins  v.  Thompson,  3  N.  H.  144  (1825)  ;  Pierce  v.  Benja- 
min, 14  Pick.  (Mass.)  356,  25  Am.  Dec.  396  (1833)  ;  Riner  v.  Stacv,  8  Humph. 
(Tenn.)  288  (1847);  McCluskey  v.  IVehb,  4  Rob.  (La.)  201  (1843)  ;  Daniel 
V.  Modawell,  22  Ala.  365,  58  Am.  Dec.  260  (1853)  ;  Crook  v.  Williams,  20  Pa. 
St.  342_Xi853)  ;  Wickliff  v.  Robinson,  18  111.  145  (1856)  ;  Robinson  v.  Clark, 
7  "Jones  (52N.  Car.)  562,  78  Am.  Dec.  265  (i860)  ;  Terrill  v.  Anchaiier,  14 
Ohio  St.  80  (1862)  ;  Galbraith  V.  Drought,  24  Kans.  590  (1880)  ;  Doivning  v. 
Lyford,  57  Vt.  507  (1885)  ;  Price  v.  Thompson,  84  Ky.  219,  i  S.  W.  408,  8  Ky. 
L.  201  (1886)  ;  McKeighan  v.  Hopkins,  19  Nebr.  22,,  26  N.  W.  614  (1886)  ; 
Shotwell  V.  Mnnroe,  42  Mo.  App.  669  (1890)  ;  Giles  v.  Bank  of  Southwestern 
Georgia,  102  Ga.  702,  29  S.  E.  600  (1897);  N.  Y.  Code  Civ.  Pro.,  §  1387. 
At  least,  without  the  knowledge  and  acquiescence  of  the  parties.  Woodbury 
V.  Parker,  19  Vt.  353,  47  Am.  Dec.  695  (1847)  ;  Farnum  v.  Perry,  43  Vt.  473 
(1871).  Nor  can  he  bid  for  another  person.  Chambers  v.  State,  3  Humph. 
(Tenn.)  237  (1842)  ;  Harrison  v.  McHenry,  9  Ga.  164,  52  Am.  Dec.  435 
(1850)  ;  Knight  v.  Herrin,  48  Maine  533  (i860)  ;  Sparling  v.  Todd,  27  Ohio 
St.  521  (1875)  ;  Caswell  v.  Jones,  65  Vt.  457,  26  Atl.  529,  20  L.  R.  A.  503,  36 
Am.  St.  879  (1893)  ;  Coleman  v.  Maclean,  loi  Ga.  303,  28  S.  E.  861  (1897). 
But  semble  contra  Moore  v.  Pye,  10  Kans.  246  (1872)  ;  Scott  v.  Mann,  36  Tex. 
157  (1871). 

47 — Civ.  Proc. 


73^  EXECUTION 

IilaintifT  against  the  firm  of  Gardner  &  Iloxsic.  It  further  appeared 
that  the  sale  had  hccn  twice  adjourned  by  the  ofiicer  on  account  of 
errors  in  the  advertisements  of  the  sale.  The  case  was  submitted  to 
the  court.^' 

Amf.s,  C.  J-;  At  the  common  law,  a  sheriff  charg^ed  with  a  fieri 
facias  was  oblijred  to  proceed  at  once  to  seize  and  sell  the  goods  of 
the  execution  debtor,  having  full  power  over  the  time,  place,  and 
mode  of  sale,  in  order  to  enable  him  to  obey  the  exigency  of  his 
writ.  He  was  not  bound  to  sell  at  auction ;  but  on  the  contrary,  if 
he  sold  in  this  mode,  could  not  charge  against  the  goods  levied  the 
expenses  of  that  mode  of  sale.  If  either  party  to  the  execution 
wanted  the  goods  sold  at  auction,  the  party  requesting  it  was  bound 
to  pay  the  expenses  of  sale  out  of  his  own  pocket.  Woodgate  v. 
KnatclihuU,  2  T.  R.  148,  156,  157.  The  ofiicer  was  not  to  consider 
whether  it  would  be  of  advantage  to  the  debtor  to  delay  the  sale  or 
not,  his  duty  being  to  sell  immediately;  and  if  the  court  found  him 
colluding  with  the  debtor  for  the  purpose  of  delay,  they  would  fix 
upon  him  the  whole  debt  and  costs,  upon  attachment.  lb.  157.  If 
he  could  not  find  purchasers  for  the  goods  levied,  or  for  enough 
of  them  to  satisfy  the  debt  and  costs,  his  duty  was  to  return  the  fact 
upon  his  process ;  and  if  a  venditioni  exponas  v/as  issued  to  him, 
he  might  make  the  same  return  to  that;  since,  if  the  plaintiff  in 
execution  w'as  dissatisfied  with  the  return,  he  might  set  up  a  pur- 
chaser of  the  goods  himself.  Leader  v.  Danvers,  i  B.  &  P.  359, 
360.  If  the  goods  were  sold  at  auction,  it  was  his  duty,  however, 
not  to  allow  them  to  be  sacrificed  for  want  of  bidders ;  and  if  a 
small  sum  in  comparison  with  their  value  was  bid  for  tliem,  he 
was  to  keep  them,  and  return  that  he  did  so  for  want  of  buyers, 
and  wait  for  a  venditioni  exponas,  which,  in  such  a  case,  was  con- 
strued to  mean :  "Sell  for  the  best  price  you  can  obtain."  Per  Lord 
Ellenborough ;  Keightley  v.  Birch,  3  Campb.  521,  523,  524." 

^'The  statement  of  facts  is  abridged  and  the  arguments  of  counsel  and 
part  of  the  opinion  of  the  court  omitted. 

^In  England  the  Bankruptcy  Act  of  1883  (46  &  47  Vict.),  ch.  52,  §  145, 
provides  "Where  the  sheriff  sells  the  goods  of  a  debtor  under  an  execution 
for  a  sum  exceeding  twenty  pounds  (including  legal  incidental  expenses), 
the  sale  shall,  unless  the  court  from  which  the  process  issues  otherwise 
orders,  be  made  by  public  auction,  and  not  by  bill  of  sale  or  private  contract, 
and  shall  be  publicly  advertised  by  the  sheriff  on  and  during  three  days  next 
preceding  the  day  of  sale."  See  further  the  rules  of  the  Supreme  Court, 
Order  XLIII,  rule  8,  and  Craivshazv  v.  Harrison,  L.  R.  (1894)  i  Q.  B.  79. 
In  most  jurisdictions  statutes  require  that  sale  under  executions  shall  be 
made  at  public  auction  after  due  notice.  N.  Y.  Code  Civ.  Proc,  §§  1384, 
1429,  1434,  Pa.  Act  of  June  16,  1836,  P.  L.  755,  §  42.  In  Massachusetts  the 
officer  is  required  to  keep  personalty  four  days  at  least  and  sell  it  within 
fourteen  days  next  after  seizure  unless  it  is  redeemed.  Rev.  L.  Mass.  (1902), 
ch.  177,  §  36.  See  Caldzvell  v.  Eaton,  5  Mass.  399  (1809)  ;  Tilconib  v.  Union 
Marine  &  Fire  Ins.  Co.,  8  Mass.  326  (1811) ;  Field  v.  Fletcher,  191  Mass.  494, 
78  N.  E.  107  (1906);  Plaisted  v.  Floar,  45  Maine  380  (1858).  Within  the 
time  allov/ed  by  law,  the  actual  time  of  sale  is  usually  in  the  discretion  of 
the  officer.  Powell  v.  Governor,  9  Ala.  36  (1846).  Personal  property,  if  levied 
on  before  the  return  day,  may  in  most  jurisdictions  be  sold  after  the  return 
day.  Linnendoll  v.  Doe,  14  Johns.  (N.  Y.)  222  (1817);  Wheaton  v.  Sexton, 
4  Wheat.  (U.  S.)  503,  4  L.  ed.  626  (1819)  ;  Smith  v.  Spencer,  3  Ired.  (N.  Car.) 
256  (1842)  ;  Hare  v.  Pearson,  26  N.  Car.  (4  Ired.)  76  (1843)  ;  Spang_v^_Cojti^ 


REYNOLDS   V.    HOXSIE  739 

In  this  state  the  sale  of  goods  upon  execution  is  regulated  by- 
statute,  with  more  attention  to  the  interests  of  the  execution  debtor. 
The  sheriff  is  to  sell  the  goods  at  auction,  and  not  until  he  has  adver- 
tised them  for  sale  at  least  ten  days,  in  order  that  the  debtor  may 
have  that  time  in  which  to  redeem  them,  as  well  as  to  ensure  them 
against  sacrifice.  With  regard  to  real  estate,  which  may  be  levied 
upon  and  sold  here  on  execution,  the  statute  still  more  carefully 
guards  the  rights  of  the  debtor,  requiring  the  officer  to  "set  up 
notifications  of  said  levy  in  three  or  more  public  places  in  the  town 
where  said  real  estate  lies,  for  the  space  of  three  months  before  the 
same  shall  be  exposed  to  sale,  notifying  all  persons  concerned,  of 
the  levy  and  intended  sale  of  the  estate,  that  the  owner  thereof 
may  have  an  opportunity  to  redeem  the  same;"  and  also  to  "notify 
said  sale,  by  causing  an  advertisement  thereof  to  be  published  once 
a  week,  for  the  space  of  three  weeks  next  before  the  time  of  sale, 
in  some  newspaper  in  the  county  where  said  estate  lies ;  and  if  no 
newspaper  be  printed  therein,  then  in  some  newspaper  printed  in 
Newport  or  Providence."  Rev.  Stat,  chapter  195,  sections  8,  11.^^ 

Under  these  statutes,  the  practice  has  been  for  officers  charged 
with  executions,  for  good  cause,  to  adjourn  sales  of  property  real 
or  personal  levied  upon  by  them,  duly  advertising  the  change  of  the 
time  of  sale,  that  there  may  not  be  a  failure  for  want  of  buyers.  Such 
power  of  adjournment  was  always  deemed  incidental  to  the  power 

monwealth,  12  Pa.  St.  358  (1849)  ;  Dennis  v.  Chapman,  19  Ala.  29,  54  Am.  Dec. 
186  (1851)  ;  Paxson's  Appeal,  49  Pa.  St.  iq';  (186=;')  ;  Cox  v.  Currier,  62  Iowa 
551,  17  N.  W.  yby  (1883).  Although  by  delay  the  execution  may  become 
dormant  as  to  creditors.  Dtmderdale  v.  Sanvesire,  13  Abb.  Pr.  (N.  Y.)  1 16 
(1861);  In  re  Earl's  Appeal,  ix  Pa.  St.  48^— ^tSsoV  In  the  case  of  real 
property  the  majority  of  decisions  permits  a  sale  after  the  return  day. 
Tillofson  v.  Doe,  5  Blackf.  (Ind.)  590  (1841)  ;  Wood  v.  Colvin,  5  Hill  (N.  Y.) 
228  (1843)  ;  Bellingall  v.  Duncan,  8  111.  (3  Gil.)  477  (1846)  ;  Pettingill  v.  Moss, 
3  Minn.  (Gil.  15O  222,  74  Am.  Dec.  747  (1859)  ;  Stein  V.  Chambless,  18  Iowa 
474,  87  Am.  Dec.  411  (1865);  Willoughby  v.  Dewey,  63  111.  246  (1872); 
Lowry  V.  Reed,  89  Ind.  442  (1883)  ;  Huff  v.  Morton,  94  Mo.  405,  7  S.  W.  283 
(1887)  ;  Ollis  V.  Kirk  Patrick,  3  Idaho  (Hasb.)  247,  28  Pac.  435  (1891)  ;  Hunt 
V.  Swayse,  55  N.  J.  L.  33,  25  Atl.  850  (1892)  ;  Ludeman  v.  Hirth,  96  Mich.  17, 
55  N.  W.  449,  35  Am.  St.  588  (1893)  ;  Wyant  v.  Tiithill,  17  Nebr.  495,  23  N.  W. 
342  (1895)  ;  Rhodes  v.  Barnett.  iq6  Pa  420.  46  Atb  438  (1900).  Contra:  Lehr 
V.  Doe  ex  dem.  Rogers,  3  Sm.  &  M.  (Miss.)  468  X"i844)  ;  Rogers  v.  Cawood, 

I  Swan  (Tenn.),  142  (1851)  ;  Williamson  v.  Williamson,  52  Miss.  725  (1876)  ; 
Cain  v.  Woodward,  74  Tex.  549,  12  S.  W.  319  (1889)  ;  Hawes  v.  Rucker,  94 
Ala.  166,  ID  So.  85  (1891). 

^''See  Wellington  v.   Gale,  13  Mass.  483   (1816)  ;  Mushhack  v.  Ryerson, 

II  N.  J.  L.  346  (1830)  ;  Smith  v.  Randall,  6  Cal.  47,  65  Am.  Dec.  475  (1856)  ; 
Olcott  V.  Robinson,  21  N.  Y.  150,  78  Am.  Dec.  126  (i860) ;  Pary's  Appeal,  41 
Pa.  St.  273,  80  Am.  Dec.  615  (1861)  ;  Jackson  v.  Spink,  59  111.  404  (1871)  ; 
Carrier  V.  EsbauaJu  70  Pa.  St^_2jQ  (1871)  ;  Morey  v.  Hoyt,  65  Conn.  516,  33 
Xtl.  490  (1895)  ;  Holmes  v.  'Jordan,"  163  Mass.  147,  39  N.  E.  1005  (1895); 
Voting  V.  Scho  field,  132  Mo.  651,  34  S.  W.  497  (1895)  -.McKee  v.  Kerr,  192 


^■_SLj:..64,  43  Atl.  953  (i8£>o)  ;  Brockhiirst  v.  Kaiser,  75  N.  J'  L^(46  Vroom) 
itl. 


i6_2,  67  Atl.  75  (1907)  ;  Blake  v.  Rogers,  210  Mass.  588,  97  N.  E.  68  (1912)  ; 
Victor  Inv.  Co.  v.  Rocrig,  22  Colo.  App.  257,  124  Pac.  349  (1912).  "That  is  a 
public  and  a  proper  place  for  setting  up  notices,  which  is  likely  to  give 
information  to  those  interested  and  who  may  probably  become  bidders  at 
the  sale."  Cummins  v.  Little,  16  N.  J.  Eq.  48  (1863)  ;  Russell  v.  Dyer,  40  N.  H. 
173  (i860)  ;  Austin  v.  Soule,  36  Vt.  645  (1864)  ;  McLaughlin  v.  Huston- 
Hudson  Lumber  Co.,  31  Okla.  182,  120  Pac.  659  (1912). 


740  Exr.ci'TiON 

to  sell;  the  whole  of  which  was  intrusted  by  the  execution,  under 
the  law,  to  the  ofticer.  No  other  order  was  ever  issued  to  him  than 
the  execution ;  a  venditioni  exi>onas  being  wholly  unknown  in  the 
simplicity  of  our  practice.-"  Within  the  limits  of  the  law  the  officer 
exercised  his  discretion  with  regard  to  the  time  of  sale ;  and  as  no 
positive  publication  of  the  necessary  power  of  adjournment  existed 
upon  the  statute  book,  adjourned  the  sale,  from  time  to  time,  as  the 
exigencies  of  the  case  required.-^  If  he  could  not,  from  storms  or 
accidents,  reach  tlie  place  of  sale;  if  reaching  it,  from  want  of  buy- 
ers, he  could  not  sell,  or  could  not  sell  except  at  a  great  sacrifice; 
in  fine,  if  from  any  cause,  consistently  with  the  performance  of  his 
general  duty  under  the  execution,  the  sale  could  not  take  place  at 
the  time  originally  appointed,  he  appointed  another  time  at  which 
it  might.  Nor  was  this  practice  peculiar  to  ourselves;  but  in  other 
states  this  same  incidental  power  was  not  only  possessed,  but  in 
proper  cases  required  to  be  exercised,  by  sheriffs  charged  with  sales 
upon  execution  as  a  part  of  their  duty.  Warren  v.  Leland,  9  Mass. 
265,  266;  Tinkom  v.  Purdy,  5  Johns.  (N.  Y.)  345;  McDonald  v. 
Neilson,  2  Cow.  (N.  Y.)  159,  170,  185,  190,  191  ;  Russell  v.  Rich- 
ards, II  Maine  371;  ilfjizils_x_ill£i^ALZiii[l<2ii^^  Richards 
et  al.  V.  Holmes  et  al,  18  How.  (N.  Y.)  147.  No  doubt,  officers 
were  liable  to  either  party  to  the  execution,  for  the  improper,  and 
especially  fraudulent  exercise  of  this  power,  to  his  detriment;  but 
that  they  were  deemed  to  possess  and  actually  did  exercise  it,  long 
before  our  statutes  incidentally  recognized  it  as  possessed  by  them,  is 
perfectly  notorious. -- 


^In  England  under  the  rules  of  the  Supreme  Court,  Order  XLIII,  rule 
2,  the  judgment  creditor  is  at  liberty  to  sue  out  a  writ  of  venditioni  exponas 
where  it  appears  upon  the  return  of  a  fieri  facias  that  the  sheriff  has  seized 
but  not  sold  the  goods  of  the  judgment  debtor.  In  Hughes  v.  Rccs,  4  M.  &  W. 
468  (1838),  it  is  said  by  Lord  Abinger,  C.  B. :  "The  venditioni  exponas  is 
not  a  process  distinct  from  the  fieri  facias,  but  a  part  of  it ;  it  is  a  writ  direct- 
ing the  sheriff  to  execute  the  fieri  facias  in  a  particular  manner."  Accord : 
Farmers'  Bank  v.  Masscy,  i  Harr.  (Del.)  186  (1833)  ;  Frisch  v.  Miller.  5  Pa. 
St.  310  (1847);  Fetxno  v.  Coulter,  14  Ark.  38  (1853);  Holmes  v.  McInToe, 
20  Wis.  657  (1866)  ;  Bigelow  v.  Renkcr,  25  Ohio  St.  542  (1874)  ;  Dryer  v. 
Graham,  s8  Ala.  623  (1877);  Borden  v.  McRae,  46  Tex.  396  (1877);  llicks 
V.  Ellis,  65  Mo.  176  (1877)  ;  Hall  v.  Clagelt,  63  Md.  57  (1884)  ;  Hastings  v. 
Bryant,  115  111.  69,  3  N.  E.  507  (1885)  ;  Rain  v.  Young,  61  Kans.  428,  59  Pac. 
1068,  78  Am.  St.  325  (1900).  In  J'ennsylvania  a  venditioni  exponas  is  the 
proper  writ  under  which  to  sell  land  levied  on  by  fieri  facias  and  condemned 
by  the  sheriff's  inquisition.  Ac^f  June  16,  1836,  P.  L.  755,  §  61,  P.  L.  Dig. 
(2d  ed.)  3464. 

-'But  now  the  General  Laws  of  Rhode  Island  (1909),  tit.  31,  ch.  304,  §  13, 
provide:  "The  officer  may,  for  good  cause,  from  time  to  time,  adjourn  the 
.sale  of  the  estate  levied  on,  giving  one  week's  notice  thereof  by  publication 
in  a  newspaper."   McCudden  v.  li  heeler,  23  R.  I.  528,  51  Atl.  48  (1902). 

"The  power  of  the  sheriff  to  adjourn  a  sale  for  good  cause  is  generally 
recognized.  Tinkom  v.  Purdy,  5  Johns.  (N.  Y.)  345  (1810)  ;  McDonald  v. 
Neilson,  2  Cow.  (N.  Y.)  139,  14  Am.  Dec.  431  (1823)  ;  Russell  v.  Richards, 
II  Maine  371,  26  Am.  Dec.  532  (1834)  ;  Lants  v.  IVorthiiufton.  4  Pa.  St.  153, 
45  Am.  Dec.  682  (1846)  ;  IDonaldson  v.^Exrt^p  Pa.  ^t,-486_jCi847)  ;  Jewctl  v. 
Guycr,  38  Vt.  209  (1865);  Sanborn  v.  Chamferlin,  loi  Mass.  409  (1869); 
Todd  v.  Hoagland,  36  N.  J.  L.  352  (1873)  ;  Wade  v.  Saunders,  70  N.  Car.  270 
C1874)  ;  Aldrich  v.  Grimes,  14  R.  I.  219  (1883)  ;  Hollister^  v.  Vanderlin,  165 
Pa._St.  248,  30  Atl.  1002,  44  Am.  St.  657  (1895)  ;  Gilbert  v.  Watts-DeGolyer 


M  NAUGHTON    V.    M  LEAN  74I 

We  do  not  by  this  intend  to  sanction  needless  adjournments  of 
such  sales  merely  for  the  purpose  of  delay,  and  especially  not  ad- 
journments made  by  an  officer  in  collusion  with  either  party,  to 
serve  the  particular  interest  of  that  party,  to  the  injury  of  the  other. 
When  such  cases  arise,  they  will  be  dealt  with  according  to  their 
circumstances;  it  being  perfectly  understood  that  there  can  not  be 
a  wrong,  under  our  jurisprudence,  for  which  the  law  in  some  form 
does  not  provide  an  adequate  remedy.  In  the  case  at  bar,  there 
was  not  only  no  collusion  of  the  kind  adverted  to,  but  the  delay  of 
sale,  caused  by  the  adjournment  was  either  absolutely  required,  or, 
in  proper  caution,  prudent,  in  order  to  its  validity.  Accidentally — - 
and  the  evidence  does  not  disclose  whether  by  the  carelessness  of 
the  officer  or  of  the  printer — the  newspaper  advertisements  of  the 
sale,  in  both  instances,  embodied  a  mistake.  In  the  first,  the  day  of 
the  week  for  the  sale,  appropriate  to  the  day  of  the  month  named, 
was  mistaken ;  and  in  the  last,  the  levy  was  stated  to  have  been  made 
in  January,  w^hen  it  was  actually  made  in  February.  For  the  pur- 
pose of  correcting  such  mistakes,  it  was,  in  our  judgment,  quite 
proper  for  the  officer,  that  the  sale  might  be  correctly  advertised 
and  all  question  of  its  validity  upon  this  ground  avoided,  to  adjourn 
the  sale,  as  he  did,  for  the  periods  necessary  for  this  purpose ;  and 
the  defendant,  at  least,  whose  time  to  redeem  was  thereby  enlarged, 
is  the  last  person  who  has  cause  to  complain  of  the  delay. 

Judgment  for  the  plaintiff. 


MOSES  A.  McNAUGHTON  v.  CHARLES  E.  McLEAN 

Supreme  Court  of  Michigan,  1889 

T2>  Mich.  250 

Relator  applied  for  mandamus  to  compel  the  respondent,  as 
financial  secretary  to  the  Laboring  Men's  Building  and  Savings 
Association,  to  transfer  to  relator  certain  shares  of  stock  in  said 
association  bid  off  by  him  at  an  execution  sale.-^ 

Sherwood,  C.  J. :  Respondents  make  answer  to  the  petition  of 
relator,  and  among  other  things  say  that  the  sale  under  which  re- 
Co.,  169  111.  129,  48  N.  E.  430,  61  Am.  St.  154  (1897)  ;  Weatherhy  v.  Slape,  58 
N.  J.  Eq.  550,  43  Atl.  898,  78  Am.  St.  627  (1899)  ;  Frazec  v.  Nelson,  179  Mass. 
456,  61  N.  E.  40,  88  Am.  St.  391  (1901).  Contra:  Fraaman  v.  Fraaman,  64 
Nebr.  472,  90  N.  W.  245,  97  Am.  St.  650  (1902).  But  the  power  is  not  to  be 
arbitrarily  exercised.  Todd  v.  Hoagland,  36  N.  J.  L.  352;  Gilbert  V.  Watts- 
DeGolyer  Co.,  66  111.  App.  625,  aff'd  169  111.  129,  48  N.  E.  430,  61  Am.  St.  154 
(1897).  And  in  many  jurisdictions  a  new  notice  must  be  given.  Enloe  v.  Miles, 
12  Sm.  &  M.  (Miss.)  147  (1849)  ;  Thornton  v.  Boyden,  31  111.  200  (1863)  ; 
Montgomery  v.  Barrow,  19  La.  Ann.  169  (1867)  ;  Frederick  v.  IVheelock,  3  Th. 
&  C.  (N.  Y.)  210  (1874)  ;  Avon-by-the-Sea  Land  &c.  Co.  v.  Finn,  56  N.  J.  Eq. 
808,  41  Atl.  360  (1898).  Contra:  Luther  v.  McMichael,  6  Humph.  (Tenn.) 
298  (1845),  and  compare  Dexter  v.  Shepard,  117  Mass.  480  (1875)  ;  Hollister 
JiLj/gndrrlin.  T65  ?n^t^248,  30^Atl.  1002,  44  Am.  St.  657  (1895). 

"Part  of  the  opinion  of  the  court  is  omitted. 


74-  EXECUTION 

lator  claims  to  be  the  owner  of  sr.id  stock  was  made  by  the  officer 
liolding  tlie  execution  in  the  hall  of  the  association  in  the  evening, 
between  nine  and  ten  o'clock,  after  a  meeting  had  been  held,  and 
after  all  the  members  but  three  had  left  and  gone  away;  and  they 
aver  that  such  sale  was  void,  and  conferred  no  rights  upon  the 
relator  respecting  the  stock.   Carnick  v.  Myers,  14  Barb.  (N.  Y.)  9. 

The  sale  made  by  an  officer  under  an  execution  at  such  an  hour, 
and  under  such  circumstances,  was  void,  at  least  as  to  the  parties 
liaving  knowledge  of  the  facts,  and  in  this  case  they  had  such  knowl- 
edge. In  New  York  the  statute  requires  that  the  sale  shall  be  made 
between  nine  o'clock  in  the  forenoon  and  the  setting  of  the  sun,-' 
but,  independently  of  any  statute,  we  think  that  a  public  sale  of 
property  ordered  by  court,  at  such  an  unseasonable  hour,  ought  not 
to  be  sustained.  It  would  subject  the  debtor's  property  in  a  large 
majority  of  cases  to  great  sacrifice,  and  must  be  held  against  public 
policy  and  void.-^ 

The  writ  will  be  denied. 


HEROD  V.  BARTLEY 

Supreme  Court  of  Illinois,  1853 

.15  ///•  58 

Replevin  by  Herod  and  Colvard  against  Seaton,  to  recover  pos- 
session of  a  horse.  The  pleas  put  in  issue  the  right  of  the  plaintiffs 
to  the  property.  The  cause  was  heard  by  the  court.  The  plaintiffs 
introduced  the  following  evidence,  and  then  closed  their  case : 
(i)  A  transcript  from  the  docket  of  a  justice  of  the  peace,  showing 
a  judgment  in  favor  of  Hudson  against  Layton,  and  an  assignment 
thereof  to  the  plaintiff's;  (2)  An  execution  issued  on  the  judgment, 
which  vvas  returned  satisfied  by  the  sale  of  a  horse  to  the  plaintiffs ; 
(3)  The  constable  testified,  that  he  levied  tlie  execution  on  the  horse 
in  question,  and  allowed  Layton  to  retain  him  till  the  day  of  sale ; 
the  plaintiffs  purchased  the  horse  at  the  sale,  but  the  horse  was  not 
then  present,  nor  was  he  in  the  possession  of  the  v/itness.  Judgment 
was  rendered  for  the  defendant.-^ 


^N.  Y.  Code  Civ.  Pro.,  §  1384. 

^Accord:  Greenwood  v  Lehigh  Coal  Co.jl_C\axisU£S')  393  (1843)  ;  Carrick 
v.  Myers,  14  iiarb.  (i\.  Y.)  0  (i852y;  Rigney  v.  Small,  60  111.  416  (1871)  ; 
Grace  v.  Garnett,  38  Tex.  156  (1873)  ;  Cole  v.  Porter,  4  G.  Gr.  (Iowa)  510 
(1854)  scmble;  Hancock  v.  Shockman,  4  Ind.  T.  138,  69  S.  W.  826  (1902)  ; 
Rhodes  &  Son  Furniture  Co.  v.  Jenkins,  2  Ga.  App.  475  (1907).  Compare 
Wood-ward  v.  Sartzvell,  129  Mass.  210  (1880);  Injre_Raubenliold's  Estate. 
I  Woodv.'.  (Pa.)  478  (1869).  A  sale  prior  to  the  time  authorized  by  statute 
IS  mvalid.  Mushback  v.  Ryerson,  11  N.  J.  L.  346  (1830)  ;  Gibbs_jL^J^.££ly, 
7  Watts  CPa.)  305  (1838)  ;  IVilliams  &  Davis  v.  Jones,  I  Bush.  (Ky.)  621 
(1866)  ;  Camp  v.  G'ahley,  6  111.  App.  499  (1880);  IVienskawski  v.  IVisner, 
114  Mich.  271,  72  N.  W.  177  (1897). 

"The  statement  of  facts  is  from  the  opinion  of  tlie  court,  a  brief  portion 
of  which  is  omitted. 


LONGWORTHY   V.    FEATHERSTON  743 

Treat,  C.  J. :  The  plaintiffs  were  not  entitled  to  recover.  They 
failed  to  substantiate  their  claim  of  title.  The  sale  of  the  horse  by 
the  constable  was  illegal  and  void.  In  the  sale  of  personal  property 
on  execution,  the  property  itself  must  be  present.  Bidders  should 
have  an  opportunity  of  inspecting  the  goods,  and  forming  an  esti- 
mate of  their  value.  This  is  the  only  way  to  secure  fairness  and  com- 
petition at  public  sales.  It  is  necessary  to  protect  the  rights  of  both 
debtor  and  creditor.  It  should  also  be  in  the  power  of  the  officer  to 
deliver  the  property  forthwith  to  the  purchaser.^^ 

Judgment  affirmed. 


LONGWORTHY  v.  FEATHERSTON 

Supreme  Court  of  Georgia,  1880 

65  Ga.  1 6s 

Ejectment  by  Longworthy  against  Featherston  to  recover  a  tract 
of  land  sold  by  the  sheriff  on  executions  against  the  plaintiff  and 
purchased  by  the  defendant.   The  jury  found  for  the  defendant  and 

"Accord:  Linnendoll  v.  Doe,  14  Johns.  (N.  Y.)  22  (1817)  ;  Sheldon  v. 
Soper,  14  Johns.  352  (N.  Y.)  (1817)  ;  Crcsson  v.  Stoitt,  \y  Johns.  (N.  Y.)  116, 
8  Am.  Dec.  372,  (1819)  ;  Ainsworth  v.  Greenlee,  3  Murph.  (N.  Car.)  470,  9 
Am.  Dec.  615  (1819)  ;  Bostick  v.  Reiser,  4  J.  J.  Marsh.  (Ky.)  597,  20  Am. 
Dec.  237  (1830)  ;  Smith  v.  Tritt,  i  Dev.  &  B.  (N.  Car.)  241,  28  Am.  Dec.  565 
(1S35)  ;  Bakeu'cll  &  Cole  v.  Ellsworth,  6  Hill  (N.  Y.)  484  (1844)  ;  Skinner 
V.  Skinner,  4  Ired.  L.  (N.  Car.)  175  (1843)  ;  Blanton  v.  Morrow,  7  Ired.  Eq. 
(N.  Car.)  47,  53  Am.  Dec.  391  (1850);  Perkins  v.  Spmilding,  2  Mich.  157 
(1851) ;  Burns  v.  Ray,  18  B.  Mon.  (Ky.)  392  (1857)  ;  Crandall  v.  Blen,  13  Cal. 
15  (1859)  semble;  Baker  v.  Casey,  19  Mich.  220  (1869)  ;  Tibbetts  v.  Jageman, 
58  111.  43  (1871)  ;  Gaskill  V.  Aldrich,  41  Ind.  338  (1872)  ;  Morgan  v.  Holladay, 
48  How.  (N.  Y.)  86,  38  N.  Y.  Super.  Ct.  ^3  (1874);  IVinfield  v.  Adams, 
34  Mich.  437  (1876)  ;  Rozvan  v.  Refeld,  31  Ark.  648  (1877)  ;  Murphy  v.  Hill, 
77  Ind.  129  (1881);  Boylan  v.  Relly,  36  N.  J.  Eq.  331  (1882);  Wright  v. 
Mack,  95  Ind.  332  (1883)  ;  Yoemans  v.  Bird,  81  Ga.  340,  6  S.  E.  179  (1888)  ; 
Gnnter  v.  Cobb,  82  Tex.  598,  17  S.  W.  848  (1891)  ;  Horsey  V.  Rnowles,  74  Md. 
602,  22  Atl.  1 104  (1891)  ;  Alston  v.  M  or  phew,  113  N.  Car.  460,  18  S.  E.  335 
(1893);  Lawry  v.  Ellis,  85  Maine  500,  27  Atl.  518  (1893);  Stonebridge  v. 
Perkins,  141  N.  Y.  I,  35  N.  E.  980  (1894)  ;  Penney  v.  Earle,  87  Maine  167,  32 
Atl.  879  (1895);  Brock  V.  Berry,  132  Ala.  95,  31  So.  517,  90  Am.  St.  896 
(1901)  ;  Hartman  v.  He ffle finger,  47  Pa.  Super.  Ct.  i  (1911).  In  some  cases 
it  has  been  held  that  the  property  need  not  be  in  immediate  view  provided  the 
property  is  open  to  the  inspection  of  bidders.  Earle  v.  Gorham  Mfg.  Co., 
2  App.  Div.  460,  2,7  N.  Y.  S.  1037,  74  N.  Y.  St.  2>32>  (1896),  where,  on  a 
sheriff's  sale  of  the  silverware  of  a  hotel,  held  in  the  hotel  rotunda  a  large 
part  of  the  silverware  was  in  an  adjoining?  room  opening  out  of  the  rotunda. 
Tifft  v.  Barton,  4  Dcnio  (N.  Y.)  171  (1847)  ;  Bruce  v.  Westervclt,  2  E.  D. 
Smith  (N.  Y.)  440  (1854)  \  Klot>t>  v.  IVitmover.  43  Pa  St.  210.  82  Am.  Dec. 
.';6l  (1S62);  National  BanF'ofJTT'vT^pragiie,  20  N.  7-  Eq.  159  (1869); 
Hcw\~-&-Cd.  MU^alterson,  57  Pa.  St.  346(1868)  ;  Phillips  v.  Brown,  74  Maine 
549  (1883).  While  the  decidecl  wcightoTaUttTOrity  is  that  a  sale  not  within 
view  of  the  bidders  is  void,  there  are  decisions  which  hold  such  a  sale  void- 
able only.  Pads  v.  Stephens,  63  Mo.  90  (1876)  ;  Foster  v.  Mabe,  4  Ala.  402, 
37  Am.  Dec.  749  (1842);  Hazzard  v.  Burton.  4  Hair.  (D'el.)  62  (1843); 
Cook  V.  Timmons,  67  111.  203  (1873). 


744  EXECUTION 

plaintitY  cxooptcil.  Tl  was  insisted  for  tlu>  ]ilainlilT  that  the  sale 
was  illojj^al  l>ccausc  it  was  not  before  tlie  court  house  door."^ 

Jackson,  j.:  The  court  house  was  burned  down.  No  new  one 
had  been  buiU,  and  no  place  rented  for  a  court  house.  The  superior 
court  was  hekl  twice  a  year  at  an  academy,  but  school  was  kept 
there,  and  the  county  only  engaged  it  tenijiorarily  at  the  time  and 
for  the  time  the  suj^erior  court  sat,  and  it  remained  and  was  private 
property.  The  clerk's  office  was  in  a  rented  room  at  another  place. 
Where  the  other  county  officers  kept  theirs  the  record  does  not 
tell  us. 

Under  these  circumstances  tiie  sheriff  went  to  the  site  of  the 
burnt  court  house  and  the  weather  being  hot  he  made  proclamation 
and  took  the  crowd  to  a  shade  some  hundred  or  hundred  and  fifty 
yards  off  in  full  view  of  the  court  house  site,  and  there  sold  the 
property  to  the  highest  and  best  bidder,  at  a  fair  and  full  price. 
The  sale  was  fully  attended  and  it  appears  that  the  property  brought 
full  price;  and  under  tlie  peculiar  facts  and  circumstances  of  this 
case,  we  think  that  the  purchaser  who  paid  full  price,  and  whose 
money,  paid  for  this  land,  was  applied  to  the  executions  against  the 
plaintiff,  should  be  protected.  The  court  house  here  was  burnt,  no 
other  had  been  built,  no  other  had  been  rented  by  the  year,  or  for 
any  term  of  years,  as  a  court  house — the  academy  had  not  been  so 
rented,  but  was  merely  used  by  arrangement  "with  the  owner  made 
twice  a  year  to  hold  the  superior  court  there,  and  the  balance  of 
the  time  he  kept  school  therein,  and  on  the  day  of  this  sale  the  school 
was  kept  there.  There  was  then  no  court  house  in  the  county  at  the 
time  of  the  sale.  IMust  sheriiT  sales  therefore  cease,  and  no  title  pass 
to  property  at  them,  and  no  judgment  be  enforced,  and  all  the  wheels 
of  justice  stop  running?  We  think  not.  The  sale  ought  not  to  have 
been  at  the  academy;  the  sheriff  and  bidders  would  have  been  tres- 
passers on  the  school  and  school  master  and  his  private  property. 
It  ought  not  to  have  been  at  the  clerk's  ofBce ;  that  was  in  a  private 
building,  and  in  no  sense  the  court  house,  for  it  does  not  appear  that 
any  court  ever  was  held  there ;  the  record  shows  no  other  place 
Vv-here  to  sell  but  the  court  house  site,  still  the  county  property  and 
whereon  in  time  the  court  house  would  be  rebuilt ;  for  convenience 
and  the  comfort  of  shade,  and  with  no  hurt  to  anybody,  the  sheriff 
proclaimed  to  the  crowd  assembled  there  within  the  hours  of  sale 
that  he  would  go  over  to  a  grove  in  full  view,  and  there  everybody 
went  and  the  sale  took  place.  These  circumstances  take  this  case 
without  the  cases  cited  by  the  counsel  for  plaintiff  in  error,  w'ho 
argued  the  case  with  much  learning  and  ability,  and  we  affirm  the 
judgment  upholding  the  validity  of  the  sale. 

The  sale  by  the  sheriff  should  be  at  the  court  house,  if  there  be 
one,  either  owned  or  rented  by  the  county  authorities;  but  if  there 
be  but  the  ashes  of  one,  and  none  other  substituted,  the  sheriff  may 
sell  there,  or  in  full  view  of  it,  after  proclaiming  within  the  hours  of 
sale  to  the  assembled  bidders  that  they  would  go  to  a  shady  place 
hard  by  to  escape  the  oppressive  heat  of  the  sun ;  and  one  who  buys 


*Part  of  the  opinion  of  the  court  is  omitted. 


LOXGWORTHY   V.    FEATPIERSTON  745 

for  full  value  at  such  a  sale  will  be  protected  by  the  sheriff's  title 
against  the  defendant  in  execution.^® 
Judgment  affirmed. 


^°In  Kane  v.  McCozvn,  55  Mo.  182  (1874),  a  sheriff's  sale  held  at  the 
door  of  a  church  building  located  at  the  county  seat  and  used  at  the  time 
as  the  court  house,  the  regular  court  house  being  occupied  by  troops,  was 
held  valid.  Said  the  court :  "It  is  plain  that  a  sale  at  the  door  of  the  de- 
serted court  house,  where  no  court  was  in  session,  would  have  been  utterly 
against  the  spirit  and  meaning  of  the  law." 

In  Union  Bank  v.  Sjiiitli,  3  La.  Ann.  147  (1848),  where,  after  a  levy  and 
advertisement  of  the  sale,  the  court  house  was  by  special  law  removed  to 
another  place,  it  was  held  that  the  advertisement  posted  at  the  old  court 
house  should  be  removed  to  the  new  and  the  sale  be  made  at  the  latter. 
In  Patterson  v.  Reynolds,  19  Ind.  148  (1862),  a  sale  of  land  by  the  sinking 
fund  commissioners  was  set  aside  on  the  ground  that  it  was  not  made  at 
the  court  house  door.  It  appeared  that  the  commissioner  who  cried  the  sale 
made  proclamation  of  the  terms  of  sale  on  the  court  house  steps  and  then 
on  account  of  the  inclemency  of  the  weather  went  into  the  court  house  and 
conducted  the  sale  from  the  judge's  stand  in  full  view  of  the  court  house 
door.   The  judgment  was  reversed. 

The  statutes  of  many  states  require  that  sales  of  real  estate  on  execution 
shall  be  made  at  the  court  house,  or  door  of  the  court  house,  of  the  county 
wherein  the  land  is  situate.  Sessions  v.  Peay,  23  Ark.  39  (1861);  Mers  v. 
Bell,  45  Mo.  333  (1870)  ;  Koch  &  Dry f us  v.  Bridges,  45  Miss.  247  (1871)  ; 
Biggs  &  Co.  v.  Brickell,  68  N.  Car.  239  (1873)  ;  Holmes  v.  Taylor,  48  Ind.  169 
(1874)  ;  Sinclair  v.  Stanley,  64  Tex.  67  (1885)  ;  Moody  v.  Moe'llcr,  J2  Tex.  635, 
10  S.  W.  727,  13  Am.  St.  839  (1889)  ;  Kendrick  v.  Latham,  25  Fla.  819,  6  So. 
871  (1889)  ;  Borneman  v.  N orris,  47  Fed.  438  (1891)  ;  Anniston  Pipe-Works 
V.  Williams,  106  Ala.  324,  18  So.  iii,  54  Am.  St.  51  (1894).  Where  the  place 
of  sale  is  not  designated  by  law,  the  officer  in  choosing  the  place  must  act  in 
good  faith  and  with  due  regard  for  the  rights  and  interests  of  the  parties. 
Howland  v.  Pettey,  15  R.  I.  603,  10  Atl.  650  (1887)  ;  Cowgill  v.  Cahoon,  3 
Harr.  (Del.)  2;^  (1839)  ;  Cummins  v.  Little,  16  N.  J.  Eq.  48  (1863)  ;  Wood- 
ward V.  Sartzi'ell,  129  Mass.  210  (1880).  A  term  of  years  need  not  to  be  sold 
on  the  premises.  Sowers  v.  Vie,  14  Pa/SL-QQ-XlSjO).  A  sale  of  real  estate 
on  execution  held"  out  oF  the  county  where  the  land  lies  is  at  least  irregular 
and  is  generally  held  void.  Cox  v.  Nelson,  i  T.  B.  Mon.  (Ky.)  94,  15  Am. 
Dec.  89  (1824) ;  Trestor  v.  Fleisher,  7  Watts  &  S.  (Pa.)  137  (1844)  ;  Doe  ex 
dem.  Hanby  v.  Tucker,  23  Ga.  132,  68  Am.  Dec  514(1857)  ;  Jenncrs  v.  Doe 
ex  dem.  Pomeroy,  9  Ind.  461  (1857)  ;  Aired  v.  Montague,  26  Tex.  732.  84  Am. 
Dec.  603  (1863)  ;  Thacher  v.  Devol,  50  Ind.  30  (1875)  ;  Morrell  v.  Ingle,  23 
Kans.  32  (1879)  ;  Kent::ler  v.  Chicago  &c.  R.  Co.,  47  Wis.  641,  3  N.  W.  369 
(1879)  ;  Street  v.  McClcrkin,  77  Ala.  580  (1884)  ;  Wort  ham  v.  Basket,  99  N. 
Car.  70,  5  S.  E.  401  (1888)  ;  Needles  v.  Frost,  2  Okla.  19,  35  Pac.  574  (1894). 

(Tourt  of  King's  Bench,  1694,  Pahnet  V.  Price,  2  Salk.  589.  An  action  was 
laid  in  Staffordshire,  and  judgment  for  the  plaintiff;  he  sued  out  a  fieri 
facias  with  a  testatum  into  Worcestershire;  and  now  it  was  moved  that  this 
was  irregular,  and  ought  to  be  set  aside,  because  no  fieri  facias  had  ever  gone 
into  Staffordshire ;  and  the  sheriff  of  Staffordshire  made  affidavit  that  he 
never  returned  any  fieri  facias  in  the  cause:  Sed  non  allocatur;  for  the 
fieri  facias  upon  which  the  testatum  is  founded,  is  returned  of  course  by  the 
attorneys  themselves,  as  originals  are ;  if  you  search  the  file  you  may  find  one, 
and  that  is  sufficient. 

At  common  law,  if  it  was  desired  to  have  execution  of  the  defendant's 
goods  in  a  county  different  from  that  in  which  the  venue  of  the  action  was 
laid  the  practice  was  to  issue  what  was  called  a  testatum  fieri  facias,  which, 
regularly,  was  preceded  by  a  fieri  facias  in  the  county  of  the  venue  returned 
nulla  bona,  Brand  v.  Mcars,  3  T.  R.  388  (1789)  ;  Cowperthwaite  v.  Owen, 
3  T.  R.  657  (1790),  although  the  issuing  of  the  original  fieri  facias  was  to  a 
great  extent  a  matter  of  form.  Archbold's  Practice  (Chitty's  ed.)  419.  In 
some  American  jurisdictions  this  practice  has  been  followed,  Denn,  Lessee  of 
Inskeep  v.  Lecoy,  i  N.  J.  L.  46  (1790);   Trenton  Delaware  Bridge  Co.  v. 


746  EXECUTION 

WODDYi:  7:  COLES 
Court  of  Queen's  Bench,  Temp.  Eliz. 

Noy  59 

An  action  of  trespass  was  brought  for  taking  goods,  etc.  The 
defendant  said  that  a  recovery  was  had  against  the  plaintiff  in 
Southw.  upon  which  a  fieri  facias  was  directed  to  him  by  which  he 
took  the  goods  and  sold  them.  By  Po])ham.  If  a  fieri  facias  for 
£20  be  awarded  to  the  sheriff,  upon  which  he  takes  an  entire  chattel 
and  sells  it  for  £40  and  returns  the  fieri  facias  with  the  £20  in 
court,  he  may  detain  the  surplusage  tmtil  the  defendant  comes  to 
demand  it  of  him ;  for  he  is  not  bound  to  search  the  defendant. 
Agreed.  But  by  Gawdy.  If  a  fieri  facias  be  awarded  for  40s.  by 
force  of  which  the  sheriff  takes  five  oxen,  every  one  of  the  value  of 
£5  and  sells  them  all,  it  is  clear  that  the  defendant  shall  have  an 
action  of  trespass  against  the  sheriff,  which  was  agreed.^° 


Ward,  4  N.  J.  L.  320  (1816)  ;  LesJier  v.  GcJir,  i  Dall.  (U.  S.)  330,  i  L.  ed.  161 
(17S8);  McCorvnck  v.  Measjrn,!  Serg^&__R^_(Pa.)  92  (1814);  Bowman  V. 
Tagg,  12  Phila.  (Pa.)  338^(1 878 )T~^'t"/-yo»  V-  Arnold  172  Pa.  St  264,  33  Atl. 
552  (iS^.  Act  Tnnp  t6.  tS;6.  P.  £77557X767^  "&  L-  Dig.  (2d  ed.)  3477- 
In  many  jurisdictions  tlie  common-law  practice  has  been  superseded  by 
statutes  authorizing  the  issuing  o£  execution  into  any  county  in  which  the 
judgment  has  been  docketed.  N.  Y.  Code  Civ.  Pro.,  §  1365;  Roth  v.  Schloss, 
6  Barb.  (N.  Y.)  30S  (1S49)  ;  Dunham  v.  Reilly,  no  N.  Y.  366,  18  N.  E.  89 
(1888)  ;  Goii'an  v.  Foun!ain,  50  Minn.  264,  52  N.  W.  862  (1892)  ;  Bugbee  v. 
Lombard,  88  Wis.  271,  60  N.  W.  414  (1S94).  Compare  Evans  v.  Aldridge, 
133  N.  Car.  378,  45  S.  E.  772  (1903).  See  also  U.  S.  Comp.  Stat.  (1913),  §  1631 ; 
Prevo^L:!i^M^rrell^^S^P\tXs.  L^  J.  125  (1877);  Lyman  Ventilating  Refrig- 
erator Co.  vTSorFtJiard,  Fe^TTas.  N"o.  8633,  12  Blatchf.  405  (1875). 

'"A  sale  of  more  property  than  is  necessary  to  satisfy  the  execution  is  void. 
Patterson  v.  Corneal,  3  A.  K.  Mar.  (Ky.)  618,  13  Am.  Dec.  508  (1821); 
Tiernan  v.  Wilson,  6  Johns.  Ch.  (N.  Y.)  411  (1822)  ;  Reed  v.  Carter, 
I  Blackf.  (Ind.)  410  (1825);  Richards  v.  Brittin,  3  Pa.  (Clark  l.,J.)_2ay 
(1845)  ;  Dawson  v.  Litsey,  10  Bush  (Ky.)  408  (1874)  ;  Cornelius  v.  Buford, 
28  Tex.  202,  91  Am.  Dec.  309  (1866)  ;  Plunnner  v.  Whitney,  33  Minn.  427, 
23  N.  W.  841  (1885);  Grim  v.  Reiiihnld^AS  Pa.  446.  2^  Atl.  1129  (1892); 
Richards  v.  Edwardy,  138  Ga.  690,  76  S.  E.  64  (1912).  Compare  where  the 
excess  was  small,  Morrison  v.  Bruce,  9  Dana  (Ky.)  2H  (1839);  Humphry 
V.  Beeson,  i  G.  Gr.  (Iowa)  199,  48  Am.  Dec.  370  (1848). 

So,  where  property  real  or  personal  is  susceptible  of  subdivision,  the 
officer  ought  to  divide  it  into  parcels,  and  discontinue  the  sale  as  soon  as  he 
has  realized  enough  to  satisfy  the  writ.  Stead  v.  Course,  4  Cranch.  (U.  S.) 
403,  2  L.  ed.  660  (1808)  ;  Hcwson  v.  Deygert,  8  Johns.  (N.  Y.)  333  (1811)  ; 
Groff  v.  Jones,  6  Wend.  (N.  Y.)  522,  22  Am.  Dec.  5.45  (1831)  ;  Reed  v.  Carter, 
3  Blackf.  (Ind.)  376,  26  Am.  Dec.  422  (1S34)  ;  Wheeler  v.  Kennedy,  i  Ala. 
292  (1840);  Den  ex  dem.  Davis  v.  Abbott,  3  Ired.  (N.  Car.)  137  (1842); 
Cowen  v.  Underwood,  16  111.  22  (1854);  Aldrich  V.  Wilcox,  10  R.  I.  405 
(1873);  J^^krr  V  Chester  Gas  Cn ,  ^^-JEg-J^^ -LI<2.  £.  D^^  Co.  269  (1873); 
Gordon  V,  O'Neil,  96  J^fo.  350,  9  S.  WT920  (iSSSJl  White  v.  Roberts,  112  Ky. 
788,  66  S.  W.  758,  23  Ky.  L.  2187  (1902).  Where  an  execution  commands  a 
sheriff  to  sell  so  much  of  the  premises  as  may  be  necessary  to  satisfy  a  decree, 
his  duty  is  to  sell  so  much  only  as  may  be  necessary  to  meet  the  requirement 
of  the  execution,  provided  such  portion  can  be  conveniently  and  reasonably 
detached  from  the  residue  of  the  property.  Vanduyne  v.  Vanduyne,  16  N.  j. 
Eq.  93  (1863). 


WOODS   V.    MONELL  747 

WOODS  V.  MONELL 

Court  of  Chancery  of  New  York,  1815 

I  Johns.  Ch.  (N.  Y.)  502 

The  plaintiff's  bill  averred  that  one  Sakett  had  conveyed  certain 
land  to  the  plaintiff  in  trust  to  sell  the  same  and  apply  the  proceeds 
in  payment  of  incumbrances  thereon  and  other  debts  of  Sakett. 
That  the  property  was  subject  to  judgments  upon  which  executions 
issued  and  all  the  premises  were  sold  together  by  the  sheriff  on 
February  23,  1812;  that  the  plaintiff  who  was  present  at  the  sale 
gave  notice  of  his  deed  of  trust  and  requested  the  sheriff'  to  sell  in 
parcels ;  that  the  premises  were  sold  to  the  attorney  for  the  execu- 
tion creditors  who  conveyed  to  Monell  and  Waller,  who  had  com- 
menced an  action  of  ejectment.  The  prayer  was  for  an  injunction 
to  stay  the  action  of  ejectment  and  that  the  sale  might  be  set  aside. 
The  answer  admitted  that  the  property  was  sold  as  a  whole;  that 
the  premises  had  been  laid  out  into  town  lots  on  a  map,  but  no  one 
had  informed  the  sheriff  of  the  division  of  the  lots,  nor  did  it  appear 
that  they  had  been  divided  except  on  paper.  Witnesses  were  heard.'^ 

Kent,  Chancellor :  The  suit  is  brought  to  set  aside  the  sheriff's 
sale,  on  the  ground  of  fraud.  The  plaintiff  has  not  made  out  a  case 
of  actual  fraud;  and  if  the  sale  is  invalid,  it  must  be  because  the 
premises  described  in  the  case  were  sold  contrary  to  law,  by  being 
sold  entire,  and  not  in  parcels,  as  the  plaintiff  requested. 

I  have  no  doubt  of  the  value  and  solidity  of  the  rule,  that  where 
a  tract  of  land  is  in  parcels,  distinctly  marked  for  separate  and  dis- 
tinct enjoyment,  it  is,  in  general,  the  duty  of  the  officer  to  sell  by 
parcels,  and  not  the  whole  tract,  in  one  the  entire  sale.  To  sell  the 
parcels  separately  is  best  for  the  interest  of  all  the  parties  concerned. 
The  property  will  produce  more  in  that  way,  because  it  vv^ill  accom- 
modate a  greater  number  of  bidders,  and  tends  to  prevent  odious 
speculations  upon  the  distresses  of  the  debtor.  Nor  does  the  officer 
act  within  the  spirit  of  his  authority,  if  he  sells  more  than  is  requi- 
site to  satisfy  the  execution.  To  sell  a  whole  tract,  when  a  small 
part  of  it  would  be  sufficient,  or,  probably  sufficient,  for  the  purpose, 
is  a  fraud  that  ought  to  set  the  sale  aside.  The  principle  which  I 
have  suggested  has  received  a  judicial  sanction.  Rowley  v.  Webb, 
±^ximr-4r^2.4-Ml'>  Stead  v.  Course,  4  Cr.  (U.  S.)  403;  hezvson  v. 
Deygerf,  8  Johns.  (N.  Y.)  333;  and  whenever  a  case  comes  fairly 
within  the  reach  of  it,  I  shall  very  willingly  adopt  and  apply  it.^^ 

^JThe  statement  of  facts  is  abridged  and  part  of  the  opinion  omitted. 

^-Property,  whether  real  or  personal  susceptible  of  division  into  lots, 
tracts  or  parcels,  should  as  a  rule  be  offered  for  sale  in  parcels.  A  "lumping 
sale"  is  rarely  justifiable.  Ryersonv  Nicholson,  2  Yeates_X£a4-  516  (1790)  ; 
Rowleyjv.  Brown,  i  Binn..JlEaJL6i  ribo.-^)  :  Tiernan  v.  Wilson.  6  Johns.  Ch. 
U^^-)  4ii'Ti822);  Fletcher  v.  Stone,  3  Pick.  (Mass.)  250  (1825)  ;  Neshitt 
v.  Dallam,  7  Gill.  &  J.  (Md.)  494,  28  Am.  Dec.  236  (1836)  ;  Merwin  v.  Smith, 


~4S  EXECUTION 

But  I  do  not  perceive  (hat  the  eireiimstnnces  of  this  case  are 
suiTicient  to  warrant  the  apphcation  of  llie  rule. 

The  plaintiff  was  present  at  the  sale,  and  became  a  bidder.  He 
requested  the  sheriff  to  sell  the  premises  by  lots,  and  not  in  one 
entire  parcel ;  but  he  produced  no  map  or  other  description  of  the 
ground  as  laid  out  in  lots.  In  the  deed  of  trust  under  which  the 
plaintiff"  claimed  title,  and  which  had  l)een  executed  to  him  by  the 
defendant  in  the  execution,  about  six  months  before,  the  ground! 
was  not  designated  by  lots,  but  was  described  as  a  "certain  lot,  piece, 
or  parcel  of  land,  known  and  distinguished  on  a  map,  etc.,  as  lot 
No.  34,  and  the  easterly  end  of  lot  No.  38,  containing  three  and  a 
half  acres,  and  bounded,"  etc.  And  when  the  plaintiff  took  posses- 
sion of  this  "said  tract  of  land,"  under  his  deed,  he  leased  the  same 
as  one  entire  parcel  to  I.  ITasbrouck ;  and  so  it  appears  to  have  been 
enjoyed  at  the  time  of  the  sale. 

The  sale  is  represented  as  having  been  made  on  the  land.  To 
bring  the  sheriff  in  default,  or  to  charge  him  with  an  abuse  of  trust, 
the  plaintiff,  who  was  then  in  possession,  and  claimed  the  land, 
ought,  at  least,  to  have  furnished  the  sheriff  with  clear  and  distinct 
proof  of  the  division  of  the  three  acres  into  town  lots,  and  of  the 
size  and  description  of  these  lots,  and  that  the  same  was  the  act  of 
the  owner.2^    Sq  small  a  tract,  and  under  the  occupation  of  one 


2  N.  J.  Eq.  182  (1839)  ;  Coxc  V.  Halstcd,  2  N.  J.  Eq.  311  (1840)  ;  Pcnn  v. 
Craig  2  N.  J.  Eq.  495  (1841)  ;  Hicks  &  Hammond  v.  Perry,  7  Mo.  346 
(1842)  ;  Day  v.  Graham,  6  111.  (i  Gilm.)  435  (1844)  ;  Culberson  v.  Morgan, 
^g  N  Car  3S7,  47  Am.  Dec.  329  (1847)  ;  Slierrv  v.  Nick,  i  Ind.  (Smith  289) 
S75  (1849)  ;  TnlC-iu.Cw-J2MzaLAPKi^a_UiBaJJ33  (1850)  ;  Reed  v.  Diven,  7  Ind. 
189  (1835)  ;  Tillman  v.  Jackson,  i  Minn.  (Gil.  157)  183  (1854)  ;  Cunningham 
V  Cassidy,  17  N.  Y.  276,  7  Abb.  Pr.  183  (1858)  Boyd  v.  Ellis,  11  Iowa  97 
(1869)  ;  klopp  V.  irhiiniay£K,-43^^-  ^^-  21Q  (1862')  ;  San  Francisco  v.  Pixlcy, 
21  Cal.  5^  (i8r32)  ;  Catlett  v.  Gilbert,  23lmr  614  (1864)  ;  Btmker  v.  Rand, 
19  Wis.  253,  88  Am.  Dec.  684  (1865)  ;  Gregory  v.  Purdue,  32  Ind.  453  (1870) ; 
Tugzvell  v.  Bussing,  48  How.  Pr.  (N.  Y.)  89  (1874)  ;  Hay  v.  Baugh,  77  Hi- 
:;oo  (1875)  ;  Bell  v.  Taylor,  14  Kans.  277  (1875)  ;  Schilling  v.  Ltntncr,  43  N.  J. 
Eq.  444,  II  Atl.  153  (1887)  ;  Grim  v.  Rejnbold,  148  Pa.  St  446,  23  Atl.  1129 
(1892);  PoTi'cr  V.  Larabee,  3  N.  Dak.  502,  57  N.  W.  789,  44  Am.  St.  577 
(1894);  Hart  v.  Hines,  10  App.  Cas.  (D.  C.)  366  (1897);  Forbes  v.  Hall, 
102  Ga.  47,  28  S.  E.  Q15,  66  Am.  St.  152  (1897) ;  Holt  on  v.  Moody,  117  Mich. 
321  75  N  W.  762  (1898)  ;  Brock  V.  Berry,  132  Ala.  95,  31  So.  517,  90  Am.  St. 
896  (1901)  ;  Miller  v.  McAllister,  197  111.  72,  64  N.  E.  254  (1902)  ;  Copper  v. 
Iowa  Trust  &c.  Bank,  149  Iowa  336,  128  N.  W.  373  (i9io)  ;  Sublett  \. 
Gardner,  144  Ky.  190,  137  S.  W.  864  (1911)  ;  Vangnndy  V.  Hill,  262  III.  162, 
104  N.  E.  147  (1914)  ;  York  v.  Bvars,  131  Tenn  38,  173  S.  W.  435  (i9i.S). 

»='In  Lennon  v.  Heindel,  56  N.  J.  Eq.  8,  37  Atl.  147  (1897),  on  bill  by  the 
execution  defendant  to  set  aside  a  sheriff's  sale  of  real  estate  it  was  urged 
that  the  property  should  have  been  sold  in  parcels.  Pitney,  V.  C.,  said : 
"I  think  this  ground  fails  for  two  reasons— first,  I  am  not  sure  that  it  would 
have  sold  for  more  if  it  had  brcn  sold  in  parcels,  though  it  is  probable  that  it 
would;  second,  no  serious  request  of  the  sheriff  was  made,  no  preparation  or 
survevs  or  plots  were  made.  The  property  was  described  in  two  parcels,  but 
it  was  not  suggested  that  it  should  have  been  sold  in  the  parcels  thus  desig- 
nated. And  if  the  defendants  in  execution  had  wished  the  property  sold 
in  parcels  they  should  have  got  up  a  scheme,  maps  and  plots,  and  requested 
the  sheriff  to  make  sale  in  that  way."  In  Iowa  it  is  provided  by  the  code 
that  the  defendant  may  deliver  to  the  officer  a  plan  of  division  of  the  land 
levied  on,  and  if  the  officer  unrcasonablv  refuses  to  sell  according  to  the 
plan  the  sale  will  be  set  aside.    Taylor  v.  Trulock,  59  Iowa  558,  13  N.  W.  661 


WOODS   V.    MONELL 


749 


tenant,  will  not,  without  other  circumstances,  raise  the  presumption 
of  an  abuse  of  power  in  the  sale.  One  of  the  witnesses  says  that 
the  premises,  at  the  sale,  were  divided  into  five  lots,  by  fences ;  but 
the  other  v^itness,  who  was  also  present  at  the  sale,  says  he  does 
not  recollect  any  cross  fences,  and  if  they  were  then  visible,  the 
whole  was  still  in  the  occupation  of  one  tenant;  those  fences  could 
not  have  been  intended  for  the  evidence  of  any  division  in  pur- 
suance of  the  map  to  which  the  witnesses  refer,  and  which  is  made 
an  exhibit  in  the  cause ;  for  by  the  map,  the  ground  was  divided  into 
a  great  number  of  small  lots ;  and  it  bears  date  within  three  months 
of  the  sale. 

I  see  no  sufficient  ground,  tlierefore,  upon  which  this  bill  can 
be  sustained;  and  it  must,  accordingly,  be  dismissed  as  to  all  the 
defendants,  with  costs.^* 

Decree  accordingly. 

(1882).  See  also  Baker  v.  Chester  Gas  Co.,  2  Del.  Co.  269  iiSj^),  affd.  73 
Pa.  St.  116:  Wellshear  v.  Kelley,  69  Mo.  343  I1S79J;  Feilcfv.  Dbrtch]  34  ArlcT 
399  (1879)  ;  Howland  v.  Pcttey,  15  R.  I.  603,  10  Atl.  650  (1887). 

"As  it  is  the  duty  of  the  officer  to  make  an  advantageous  sale  of  the  prop- 
erty he  must  necessarily  be  invested  with  some  discretion  in  the  manner 
of  sale,  and  if  he  has  honestly  done  so  his  judgment  will  usually  be  accepted. 
Nelson  v.  Bronncnburg,  81  Ind.  193  (1881)  ;  Stall  v.  Macalestcr,  9  Ohio  19 
(1839)  ;  Balfour  v.  Burnett,  28  Ore.  72,  41  Pac.  I  (1895).  A  division  may  be 
clearly  impractical,  as  in  Craig  v.  Stevenson,  13  Nebr.  362,  18  N.  W.  510 
(1884),  and  Geney  v.  Maynard,  44  Mich.  578,  7  N.  W.  173  (1880),  where 
upon  several  lots  a  single  building  has  been  erected,  Glcason  v.  Hill,  65  Cal. 
17,  2  Pac.  413  (1884),  where  four  ditches  and  the  water  rights  connected 
therewith  constituting  one  system  were  sold  as  one  parcel.  So  where  the  offi- 
cer receives  no  bids  for  the  parcels,  he  may  offer  the  prooerty  en  masse.  Slater 
V.  Maxzcell,  6  Wall.  (U.  S.)  268,  18  L.  ed.  796  (1867)  ;  White  v.  Crow,  no  U. 
S.   183,  28  L.  ed.  113  (1884);  Nix  v.   Williams,  no  Ind.  234,   n  N.  E.  36 

(1886)  ;  Ollis  V.  Kirk  Patrick,  3  Idaho  247  (Hash.),  28  Pac.  435  (1891)  ;  Hen- 
derson v.  Harness,  184  111.  520,  56  N.  E.  786  (1900)  ;  Wilson  v.  Cory,  114  Iowa 
208,  86  N.  W.  289  (1901)  ;  Siler  v.  Lazvson,  163  Ky.  6,  173  S.  W.  158  (1915). 
Contra:  Udell  v.  Kahn,  31  Mich.  195  (1875). 

Where  property  subject  to  a  mortgage  is  taken  on  execution,  since  the 
equity  of  redemption  can  not  be  subdivided  by  separate  sales  of  the  various 
articles  or  tracts,  the  whole  ought  to  be  sold  in  one  parcel.  Tifft  v.  Barton, 
4  Denio  (N.  Y.)  171  (1847);  Webster  v.  Foster,  81  Mass.  (iS  Gray)  31 
(i860)  ;  Carpenter  v.  Simmons,  28  How.  Pr.  (N.  Y.)  12,  24  N.  Y.  Super.  Ct. 
360  (1863)  ;  Worthington  V.  Hanna,  23  Mich.  530  (1871)  ;  Harvey  v.  Mc- 
Adams,  32  Mich.  472  (1875)  ;  Plimpton  v.  Goodell,  143  Mass.  365,  9  N.  E.  791 

(1887)  ;  Locke  v.  Shrcck,  54  Nebr.  472,  74  N.  W.  '970  (1898)  ;  Knutson  v. 
Rosenberger,  81  Nebr.  761,  116  N.  W.  687,  129  Am.  St.  711  (1908)  ;  Howland 
V.  Donehoo,  141  Ga.  687,  82  S.  E.  32  (1914).  But  in  Rowley  v.  Brown,  i  Bin. 
CEaJ_6L_USai) ,  a  lumping  sale  of  three  properties  was  disallowed  although 
subject    to   an    unapportioned   ground    rent.     Compare    Se^rgent^  v.    Bedford, 

-6  W.  K-  C  Pa-^5ZS-Xi879)_,  and  see  Baker  v.  Clicster  Ga^  Co.,  73"Pa.  St.  ii5, 
2  Del.  Co.  269  ( iS7?^^yFx£clsior  SazTngs^FunJv^TdcTiran^o  DeLjCo.  (Pa.) 
10  (1905);  Cochran  v.  Goodelf,  131  Mass.  464  (1881)  ;  North  v.  Dearborn, 
146  Alass.  17,  15  N.  E.  129  (1888). 

By  the  weight  of  authority  a  sale  en  masse  instead  of  in  parcels  is 
voidable  but  not  void.  Wheeler  v.  Train,  3  Pick.  (Mass.)  255  (1825); 
Williams  v.  Allison,  2,3  Iowa  278  (1871)  ;  Lambcrton  v.  Merchants'  Nat.  Bank, 
24  Minn.  281  (1877)  ;  Boylan  v.  Kelly,  36  N.  J.  Eq.  331  (1882)  ;  Bennett  v. 
Bagley,  22  Hun  (N.  Y.)  408  (1880)  ;  Reynolds  v.  Tenant,  51  Ark.  84,  9  S.  W. 
857  (1888)  ;  Lewis  v.  Whitten,  n2  Mo.  318,  20  S.  W.  617  (1892)  ;  LIudepohl 
V.  Liberty  Hill  &c.  Water  Co.,  94  Cal.  588,  29  Pac.  1025,  28  Am.  St.  149 
(1892);   Grim  v.   Reinbold,   148  Pa.  446,  23   Atl.   n29   (1892);   Hoffman  v. 


;-50  EXECUTION 

WORTH  V.  NEWLIN 
Court  of  Chancery  of  New  Jersey,  1896 

36  Atlantic  Reporter  30" 

Grey,  V.  C. :  This  matter  is  presented  upon  exceptions  filed 
against  the  confirmation  of  a  foreclosure  sale  under  section  45,  p. 
21 1 1,  Gen.  Stat.  1895.  The  sale  was  made  by  the  sheriff  of  Cape 
]\Iay  county,  on  October  19,  1896,  pursuant  to  the  command  of  a 
writ  of  fieri  facias  issued  upon  decree  made  in  this  foreclosure 
suit  for  the  sale  of  an  hotel  and  lot  of  land,  and  also  its  furniture. 
The  execution  directed  the  sale  of  a  lot  of  land  at  Cape  May  having 
an  hotel  upon  it,  and  also  of  a  lot  of  furniture,  the  equipment  of 
the  hotel,  described  in  the  proofs  as  "The  Cb.alfonte."  The  execu- 
tion did  not  specify  whether  the  land  should  be  sold  separately 
from  tlie  personal  property  or  not,  nor  did  it  direct  a  sale  of  either 
in  parcels.  It  described  the  real  estate  and  the  personal  property 
in  the  same  terms  by  which  tliey  were  described  by  the  mortgagor  in 
the  complainant's  mortgage. 

The  objection  is  that  the  real  estate  and  personal  property  were 
sold  together,  and  not  separately.^*'  The  property  consisted  of  an 
hotel  and  its  furniture  and  equipment.  The  exceptant  is  one  of  the 
mortgagors.  In  the  mortgage  which  she  made  she  described  the 
lands  mortgaged,  and  added  this  clause  as  to  the  personal  property : 
"And  also  all  the  furniture,  carpets,  bedding,  household  goods, 
kitchen  utensils,  crockery,  china,  glass,  wooden,  silver,  iron,  and  tin 
ware,  and  other  household  furnishing  goods  now  in  or  which  may 
hereafter  be  put  in  the  hotel  on  the  said  premises."  The  mortgage 
was  not  executed  as  a  chattel  mortgage,  as  if  the  parties  considered 
the  furniture  separately  from  the  hotel,  but  as  a  real  estate  mort- 
gage only,  naming  the  furniture  as  if  it  were  appurtenant  to  the 
hotel.  There  were  no  judgments  entered  or  other  liens  upon  the 
personal  property.  The  complainant's  mortgage  was  the  only  lien 
upon  this  personal  property.  The  furniture  and  utensils  of  the 
hotel  were  treated  by  the  parties  as  if  they  considered  them  to  be 
part  of  the  hotel  equipment.  The  v;rit  directed  a  sale  of  the  prop- 
erty mortgaged  in  the  very  words  which  the  exceptant  had  herself 
used  in  describing  it  in  the  mortgage.  The  sheriff  swears  without 
contradiction  "that  no  request  was  made  to  deponent  (the  sheriff) 
before  or  at  the  sale  to  sell  said  hotel  and  said  furniture  separately." 


Buschman,  95  Mich.  538,  SS  N.  W.  458  (1893)  ;  Margin  v.  JVicks,  92  Hun  155, 
36  N.  Y.  S.  375,  71  N.  Y.  St.  145  (1895)  ;  Palmer  v.  Riddle,  180  111.  461,  54  N.  E. 
227  (1899);  Dixon  V.  Dixon,  38  Misc.  Rep.  652,  78  N.  Y.  S.  255  (1902); 
Bechtel  v.  Wicr,  152  Cal.  443,  93  P^c.  75,  15  L.  R.  A.  (N.  S.)  549n  (1907)- 
Contra:  Brien  v.  Robinson,  102  Tenn.  157,  52  S.  W.  802  (1898),  and  see 
Forbes  v.  Hall,  102  Ga.  47,  28  S.  E.  915,  66  Am.  St.  152  (1897). 

"Part  of  the  opinion  is  omitted. 

*°In  Lee  v.  Fellou-es  &  Co.,  10  B.  Mon.  (Ky.)  117  (1849),  a  sale  on 
execution  of  land  and  slaves  in  gross  was  held  irregular.  Accord:  Cresson  v. 
Stout,  17  Johns.  (N.  Y.)  116,  8  Am.  Dec.  272  (1819). 


THOMPSON   V.    M' MANAMA  75 1 

The  property  had,  at  the  last  two  sales  made  of  it,  been  sold  real 
and  personal  as  an  entirety.  The  weight  of  the  evidence  is  that  it 
is  customary  in  Cape  May  to  sell  hotels  with  their  furniture  as  an 
entirety.  In  view  of  these  facts,  and  of  the  sheriff's  opinion  that 
the  property  would  bring  a  better  price  when  sold  as  a  whole  than 
when  sold  separately,  I  do  not  think  the  sheriff  exceeded  his  power 
under  the  writ,  nor  that  he  used  his  discretionary  authority  harshly 
or  oppressively,  in  selling  the  hotel  and  its  equipment  as  an  entirety. 
The  hotel  was  located  at  a  public  seaside  resort,  and  the  per- 
sons who  could  have  proved  the  value  of  the  hotel  and  of  the  fur- 
niture, if  it  were  desired  to  do  so,  were  necessarily  many.  The 
sheriff  testifies  that  in  his  opinion  the  hotel  and  furniture  was 
"worth  more,  and  would  sell  for  more,  if  sold  together  as  a  whole, 
than  if  sold  separately."  I  think  it  may  well  be  claimed  that  a  fur- 
nished hotel,  mortgaged  as  such,  would  produce  at  a  public  sale  a 
higher  price  if  sold  as  an  entirety  than  would  result  from  a  sale  of 
I  the  hotel  at  one  bid,  and  its  furniture  separately,  either  as  a  whole 
'or  in  parcels.  Upon  the  whole  matter,  as  submitted  to  me,  I  think 
the  exceptant  has  failed  to  show  sufficient  cause  to  justify  a  refusal 
to  confirm  the  sale.  I  shall  therefore  advise  that  an  order  be  made 
confirming  the  sale.^'^ 


THOMPSON  V.  McMANAMA 

Superior  Court  of  Cincinnati,  1858 

2  Disn.    (Ohio)   213 

Special  Term. — On  motion  to  set  aside  a  sheriff's  sale.  At  the 
January  term,  A.  D.  1858,  the  plaintiff  obtained  a  decree  of  fore- 
closure and  sale  of  certain  leasehold  premises  in  the  city  of  Cincin- 

="111  Bergin  v.  Hayward,  102  Mass.  414  (1869),  it  is  said:  "The  law  does 
not  undertake  to  point  out  in  what  precise  manner  he  (the  officer)  shall  set 
up  the  property  to  be  bidden  upon.  From  the  necessity  of  the  case,  much 
must  be  left  to  his  reasonable  and  fair  discretion.  There  may  be  cases  in 
which  it  would  be  injudicious  to  sell  articles  singly,  or  in  any  other  way  than 
by  the  case,  or  the  dozen,  or  perhaps  even  by  the  lot.  He  must  act  in  good 
faith,  so  as  to  make  the  process  as  little  oppressive  to  the  debtor  and  as 
productive  to  the  creditors  as  circumstances  will  allow,  paying  of  course, 
all  due  regard  to  general  usage  and  established  practice  in  "like  cases.  We 
cannot  say,  however,  that  it  v.ould  necessarily,  and  under  all  circumstances 
be  illegal  or  improper  for  the  officer  to  set  up  in  one  lot  the  whole  of  a 
stock  in  trade,  or  the  entire  contents  of  a  workshop,  or  all  the  machinery, 
tools  and  fixtures  of  a  specific  manufactory.  It  is  certainly  possible  to 
conceive  of  cases  in  which  subdivision  might  be  injurious  to  all  parties  con- 
cerned. For  instance,  it  might  be  more  judicious  to  sell  a  pair  of  horses 
together,  at  one  collective  price,  than  to  sell  each  horse  separately."  Accord : 
Matson  v.  Swcctser,  50  111.  App.  518  (1893)  ;  National  Bank  of  the  Metrop- 
olis V.  Sprague,  20  N.  J.  Eq.  159  (1869).  Compare  Yost  v.  SviHh,  lo^  Pa.  St. 
628,  51  Am.  Rep.  219  (1884);  Smith  v.  Mcldren  107  Pa  St.  348  (1884); 
Furhvsh  v  Gr,'cne.  108  Pa.  St.  .so.3  (188.S).  with  KloPt)  v.  Witmoyer.  ^^  Pa' 
St.  219,  82  Am.  Dec.  561  (1862)  ;  Grim  v.  Reinbold.  148  Pa.  St7  Zi6.  2->,  Atl. 
1129  (1892). 


752  EXFXUTION 

nati.  The  property  was  npi)raisesd  at  ij^tjoo,  and  the  sheriff  makes 
his  return  that  the  property  "was  struek  off  and  sold  to  Joseph 
Temple  for  the  sum  of  iJ^SOo,  it  beinf^  more  than  two-thirds  of  the 
ajipraised  value  of  said  lot  or  parcel  of  land,  and  he  being  the  high- 
est and  best  bidder  for  said  premises  and  the  purchaser  thereof." 
The  sheriff  also  indorsed  upon  the  order  of  sale  the  following  state- 
ment of  facts,  viz.: 

"1858,  March  15.  Tn  this  case,  at  the  sale  of  the  premises  herein 
descrilied,  George  B.  Whitcomb  bid  for  said  property  the  sum  of 
$875,  whereupon  the  same  was  knocked  down  and  struck  off  to  him, 
and  he  paid  me  $25,  and  promised  and  agreed  with  me  and  the 
other  parties  interested,  that  he  would  pay  the  balance  of  said  pur- 
chase money  within  a  limited  time,  or  that  it  should  be  returned 
sold  to  the  next  highest  bidder,  and  that  the  $25  so  paid  should  be 
forfeited  to  the  interested  parties;  and  the  said  George  B.  Whit- 
comb having  failed  to  pay  said  sum,  so  bid  by  him,  I  have  returned 
the  sale  to  Uie  next  highest  bidder  (see  return  hereto  attached),  and 
ask  the  court,  in  making  their  final  order  in  said  action,  to  direct 
what  is  to  be  done  with  the  $25  forfeited  as  aforesaid. 

R.  Mathers,  Sheriff." 

Edward  !Morse,  for  plaintiff, 

Joseph  McDougal,  for  IMcManama. 

R.  D.  Handy,  for  purchaser,  Temple. 

Storer,  J. :  The  duty  of  the  sheriff,  whenever  he  is  required  to 
sell  real  estate  upon  execution  is  plain. 

I.  He  must  demand  and  receive  the  purchase  money  from  the 
purchaser  before  he  makes  his  return. ^^ 

''A  sale  on  execution  is  a  cash  sale.  Nealev  v.  Stewart.  10  Serg;.  &  R. 
(Pa.)  207  (1823)  ;  Bayley  v.  French,  2  PickTcM^assjTS^  ( 1824)  ;  Robins jy. 
5r//flj:_j2_Wiitts_  (PaT)  359  (iS34r;'Sivope  v.  Ar'dery,  5  Ind.  213  (1854); 
Ex  parte  State,  15  Ark.  263  (1854)  ;  Islcr  v.  Andrews,  66  N.  Car.  552  (1872)  ; 
Chandler  v.  Goodrich,  58  N.  H.  525  (1879)  ;  Dazct  v.  Landry,  21  Nev.  291, 
30  Pac.  1064  (1892)  ;  Simmons  v.  Cook,  109  Ga.  553,  34  S.  E.  1033  (1899); 
Mcherin  v.  Saunders,  131  Cal.  681,  63  Pac.  1084,  54  L.  R.  A.  272  (1901)  ; 
Rowe  v.  Granger,  118  App.  Div.  (N.  Y.)  459,  103  N.  Y.  S.  439  (1907)-  If  the 
officer  extends  credit  to  the  purchaser  he  does  so  at  his  own  risk.  Denton  v. 
Livingston,  9  Johns.  (N.  Y.)  96,  6  Am.  Dec.  264  (1812)  ;  McCluskey  v.  Mc- 
Neely,  8  111.  (3  Gilm.)  5/8  (1846)  ;  Harper  v.  Fox^  Watts  &  S,j1Pa.')  142 
(1844);  Disston  v.  Strauck,  42  N.  J71Z:~S4Sr  2  Ky.  Law  Rep.  100  (1880); 
McLendon  v.  Harrell,  67  Ga.  440  (1881)  ;  Robinson  v.  Brennan,  90  N.  Y.  208 
(1882);  Willbanks  V.  Untriner,  98  Ga.  801,  25  S.  E.  841  (1896);  Qomnion- 
■Li'ealthjv,jComrey,JLZAX2::^  St.  355,  34  Atl.  581  (1896).  In  a  number  of  juris- 
dictions, if  the  execution  creditor  becomes  the  purchaser  the  officer  may- 
credit  the  amount  of  the  execution  debt  in  payment  of  the  bid.  Nichols  v. 
Ketcham,  19  Johns.  (N.  Y.)  84  (1821)  ;  Russell  v.  Gibbs,  5  Cow.  (N.  Y.)  390 
(1826)  ;  Mark_^  v.  ^smer,  138  Pa^_St^,  20  Atl.  841  (1890)  ;  Krtunhkaar  v. 
Yewdall,  153  Pa.  StT^b,  20  A 1172 19  TI893)  ;  see  Pa^Act  of  April  2a_jB46. 
P.  L.  411,  19  P.  ^  L.  Dig.  of  Dec.  34350;  Wilson  v.  American  PhotjtJidief 
Printitifi  Co..  A  Wkly.  Notes  Cas.  (Pa.)  13  (I877)  ;  Boots  v.  Ristine,  146  Ind. 
75,  44  X.  E.  15  (1896).  Compare  Watson  v.  Hoboken  Planing  Mills  Co.,  156 
App.  Div.  8,  140  N.  Y.  S.  822  (1913).  If  there  is  a  dispute  between  creditors 
as  to  the  application  of  the  proceeds  of  the  sale  the  officer  should  brine:  the 
money  into  court.  Fozvler  v.  Pearce,  7  Ark.  28,  44  Am.  Dec.  526  (1846)  ; 
Williams  v.  Smith,  6  Cal.  91  (1856)  ;  Hotchkiss  v.  Homan,  11  Pa^J3iiiLJR. 
43  (ijjoi)  ;  Atlanta  Trust  &c.  Co.  v.  Nelms,  115  Ga.  53,  41  S.  E.  247  (1902). 


THOMPSON    V.    M  MANAMA  753 

2.  He  must  sell  to  the  highest  and  best  bidder.^^ 

3.  If  the  purchaser  neglects  or  refuses  to  pay  the  purchase 
money,  or  if  he  is  not  a  real  bidder,  and  it  is  evident  that  he  has 
made  his  bid  to  postpone  the  sale  or  delay  the  creditor  in  the  collec- 
tion of  his  debt,  it  is  the  duty  of  the  sheriff  to  disregard  his  bid  and 
offer  the  property  again  for  sale,  as  if  no  previous  bid  had  been 
made. 

It  v/as  held  in  Bishee  v.  Hall,  3  Ohio  464,  that  when  the  pur- 
chaser refuses  to  complete  tlie  contract  by  paying  the  money,  the 
sheriff  was  not  bound  to  make  himself  liable  by  returning  an  actutal 
sale  and  trusting  to  a  recovery  against  the  purchaser,  and  this  rule 
is  affirmed  in  Russell  v.  Gibbs,  5  Cow.  (N.  Y.)  396,  where  it  is  said, 
"the  officer  may  refuse  to  deliver  the  property  until  he  receives  the 
purchase  money,  and  if  tlie  money  is  refused,  he  may  re-sell  the 
property."  We  find  the  same  principle  decided  in  U^ortman  v.  Con- 
yngliam,  i  Pet.  (C.  C.)  243,  where  Judge  Washington  states,  "if  the 
purchasers  refused  to  comply  with  the  terms  of  sale,  it  was  the 
same  thing  as  if  the  land  had  not  been  struck  off  to  them ;  and  the 
marshal  might,  and  it  was  his  duty  to  offer  the  property  again  for 
sale."-*^  When,  however,  the  officer  returns  that  the  property  has 
been  struck  off  to  a  purchaser,  and  a  new  agreement  is  made  at  the 
time,  by  which  the  payment  of  the  price  is  postponed  to  a  future 
time,  and  upon  the  nonperformance  of  vv'hich  the  sale  is  to  be  set 


^''At  a  sheriff's  sale  A  bid  three  dollars,  B  bid  three  dollars  and  a  half, 
but  the  sheriff  refused  to  cry  B's  bid  and  knocked  off  the  property  to  A. 
The  sale  was  set  aside.  Duffy  v.  Rutherford,  21  Ga.  363  (1857).  The  sale 
should  be  to  the  highest  and  best  bidder.  Parker  v.  Pratt,  8  N.  J.  L.  104 
(1849)  ;  Lane  v.  White,  12  Wis.  381  (i860)  ;  United  States  v.  Vestal,  4  Hughes 
(C.  C.)  467  (1882)  ;  Svi'ires^v.  Brotherline.  41  Pa.  St.  t35,__8o  Am.  Dec.  601 
(1861)  semble.  The  officer  is  not  obliged  to  accept  the  bid  of  an  irresponsible 
person.  State  v.  Johnson,  2  N.  Car.  (Hayw.)  293  (1796)  ;  Den  ex  dem. 
Flomerfelt  v.  Zcllcrs,  7  N.  J.  L.  153  (1824)  ;  Kinney  v.  Showdy,  i  Hill  (N.  Y.) 
544  (1841)  ;  Hobbs  v.  Beavers,  2  Ind.  142,  52  Am.  Dec.  500  (1850)  ;  Michel 
V.  Kaiser,  25  La.  Ann.  57  (1873);  Hotchkiss  v.  Homan.  11  Pa.  Dist.  R.  43 
(1901).  _ 

^°The  defaulting  bidder  may  be  held  to  his  contract  in  an  action  by  the 
officer  to  recover  the  amount  of  the  bid.  Friedly  v.  Schccts,  9  Serg.  &_  R. 
(Pa.)  156,  II  Am.  Dec.  691  (1823);  Chap  pell  v.  'Uann,  2T'Bar57T^-  Y-)  17 
(1855)  ;  Armstrong  v.  Vroman,  11  Minn.  (Gil.  142)  220,  88  Am.  Dec.  81 
(1866)  ;  Webb  v.  Perkins,  60  111.  App.  91  (1894).  Or  the  officer  may  resell 
the  property.  Wilson  v.  Loring,  7  Mass.  392  (1811)  ;  Bisbee's  Lessee  v.  Hall, 
3  Ohio  449  (1828)  ;  Den  ex  dem.  Smith  v.  Young,  12  N.  J.  L.  300  (1831)  ; 
People  V.  Hays,  5  Cal.  66  (1855)  ;  New  Orleans  v.  Pellerin,  12  La.  Ann.  92 
(1857)  ;  Croacher  v.  Oesting,  143  Mass.  195,  9  N.  E.  532  (1887)  ;  Bradley  v. 
Geo.  Challoner's  Son's  Co.,  103  111.  App.  618  (1902).  And,  generally,  the 
defaulting  bidder  will  be  held  liable  for  the  difference  between  his  bid  and 
the  amount  obtained.  Robinson  v.  Garth,  6  Ala.  204,  41  Am.  Dec.  47  (1844)  ; 
Qjskell  V.  Aforn.s^^LWalis_^L.S..Xl-a.)  32  (1844.)  ;  Williams  v.  Lines,  7  Blackf. 
(Ind.  J  46  (1843)  ;  Fgrstcr  V.  H ayiy.cn,  26  Pa.  266^^1856)  ;  Herdman  v.  Cooper, 
39  111.  App.  330  ( i8go)' semble  ;/iarnt?.y  V.  BhitKcnthal,  loi  Ga.  598,  28  S.  E. 
1017,  65  Am.  St.  339  (1897)  ;  Hughes  v.  Millcr,ji86  Pa.  St,  32S  40  Atl.  492 
(1898)  ;  Hartman  v.  Pemberiofl^jLSz-  Siiper^t.  222  (1904).  Contra  :  Gricr 
V.  Yonfs,  50  JN.  Car.  37~l  (1858);  Roberts  v.  Westbrook,  i  Coldw.  (Tenn.) 
115  (i860)  ;  Harvey  &  Keith  V.  Adams,  9  Lea  (Tenn.)  289  (1882).  And  the 
rule  does  not  apply  where  the  terms  of  sale  are  altered.  Hare  v.  Bedell,  98 
Pa.  St.  48^  (1881).  ^  - 

48 — Civ.  Prog. 


J> 


EXECUTION 


aside,  the  power  of  the  officer  ceases  over  the  process  and  he  can 
not.  upon  the  same  process,  offer  the  property  again  for  sale,  much 
less  disregard  the  sale  and  return  tliat  the  next  highest  bidder  is  the 
purchaser. 

The  sheriff's  duty  is  clearly  defined:  he  must  discharge  it  as 
tlie  law  requires  him  to  do;  he  can  not  imi)ose  new  conditions  or 
make  any  private  agreement  connected  with  the  sale.*^  If  he  pre- 
sumes thus  to  act,  his  proceedings  will  be  set  aside  or  disregarded 
altogether,  as  the  court,  from  which  execution  has  issued,  may  think 
proper.  We  have  no  doubt,  nevertheless,  in  every  proper  case,  that 
the  person  to  whom  the  property  has  been  struck  down,  as  the  pur- 
chaser, may,  at  any  time  before  the  confirmation  of  the  sale,  assign 
his  bid  to  another,  and  tlie  act  will  be  confirmed  by  the  court.  This 
is  the  rule  in  Kentucky;  Jamison  v.  Tudor,  3  B.  ISIon.  (Ky.)  357; 
Fried e  v.  Veach,  i  Daiia  (Ky.)  212 ;  and  it  has  long  been  regarded  as 
tlae  law  in  Ohio ;  Ewing  v.  Higby,  7  Ohio  pt.  I,  204.*- 

But  in  tlie  case  before  us  the  sale  appears  to  have  been  made  to 
one  party,  and  afterwards,  widiout  the  property  being  re-offered, 
anotlier  person  is  returned  as  the  next  highest  bidder,  and  entitled  to 
tlie  purchase ;  and  this,  too,  by  an  understanding  between  the  parties 
to  the  sale.  Such  a  proceeding  we  can  not  judicially  sanction.  The 
sale  must  be  set  aside  and  a  new  order  of  sale  issue  to  the  sheriff.*^ 

]\Iotion  granted  and  sale  set  aside. 

"A  conditional  bid  is  unauthorized  and  should  be  disregarded  by  the 
officer.  FaMVxev.  Sedgwick.  8  Pa.  St.  407  (1848)  ;  Moore  v.  Owsley,  37  Tex. 
603  (1872);  Dewey  M.  Willoughhy,  72  111.  250  (1874);  Nebraska  Loan  & 
Trust  Co.  v.  Hamer,  40  Nebr.  281,  58  N.  W.  695  (1894).  Nor  can  the  sheriff 
impose  terms  different   from   those  employed   by   law.    Stevenson  v.   Black, 

I  N.  J.  Eq.  338  (1831);  ffrllnnn  V  Hellwnn.  1.  Rawle  (Pa.)  440  (1834); 
Tn  rr  Br.-inyx  Appeal,  ^o  Pa.  St.  348  (1858)  ;  Cable  v.  Byrne,  38  Minn.  534, 
38  N.  W.  620,  8  Am.  St.  696  (18S8). 

"Accord:  People  ex  rel.  Newell  v.  Muzzy,  I  Denio  (N.  Y.)  239  (1845)  ; 
Trotter  v.  Nelson,  l  Swan  (Tcnn.)  7  (1S51)  ;  Carpenter  v.  Sherfy,  71  111.  427 
(1874)  ;  Green  v.  Clark,  31  Cal.  591  (1857)  ;  IVood  v.  Morehouse,  45  N.  Y. 
368  (1871);  Conger  v.  Bahcock,  87  Ind.  497  (1882)  ;  Ward  v.  Lozvndes,  96 
N.  Car.  367,  2  S.  E.  591  (1887)  ;  Parlcr  v.  Johnson,  81  Ga.  254,  7  S.  E.  317 
(1888)  ;  Oliver  v.  Dougherty,  8  Ariz.  65,  68  Pac.  553  (1902). 

*' Accord:  Swortzell  v.  Martin,  16  Iowa  519  (1864)  ;  Mathews  v.  Chfton, 
13  Sm.  &  M.  (Miss.)  330  (1850);  Dazet  v.  Landry,  21  Nev.  291,  30  Pac. 
1064  (1892)  ;  Kimkel  v.  Ebv.  7  Pa.  P.  R.  672  (1898)  ;  HoJsMiss.  V    Hnnu^n, 

II  Pa.  Dist/^.^.4xXl£iP0 •  Contra:  Zantzingcr  v.  Pole,  i  Pall.  (Pa.)  410. 
iJU  ed.  204  (1789)  semblc;  Cnmmings  v.  MacGill,  6  N.  Car.  (2  MurphT)  357 
(1818)  ;  ."iouth  V.  Lavens.6\V.  N.  Cas^Pa.)  528  (1878)  ;  Hous^mm  v.  Potts, 
40  W.  N.  CJPaJ  ^52  0897)- 


GULICK   V.    WEBB  755 

WILLIAM  D.  GULICK  v.  MARY  WEBB  ET  AL. 

Supreme  Court  of  Nebraska,  1894 
41  Nebr.  706 

Appeal  from  a  decree  of  the  District  Court  of  Lancaster  county, 
confirming  a  sheriff's  sale  of  certain  lots  in  the  city  of  Lincoln,  sold 
under  an  order  of  sale  in  an  action  to  foreclose  certain  mechanics' 
and  mortgage  liens.  W.  H.  Tyler  was  the  purchaser  for  $13,000, 
which  was  more  than  two-thirds  of  the  appraised  value.** 

Harrison,  J.:  The  objection  upon  which  the  appellants  rely 
is  as  follows :  "An  unlawful  combination  was  entered  into  by  certain 
of  the  claimants  and  lien-holders  to  prevent  competition  at  the 
bidding  or  crying  of  the  sale;  that  such  combination  was  carried 
out  and  rival  bidding  was  prevented,  to  the  injury  of  the  defendant 
and  certain  of  the  creditors."  The  evidence  (which  consists  of  affi- 
davits of  various  persons)  discloses  that  five  of  the  lienholders, 
whose  liens  were  of  the  liens  foreclosed  in  the  action,  no  one  of 
them  being  of  sufficient  financial  ability  to  purchase  the  property, 
entered  into  an  agreement  or  combination  to  the  effect  that  one  of 
their  number,  William  Tyler,  was  to  bid  at  the  sale  in  behalf  of  all 
the  five  lienholders,  and  bid  until  the  amount  offered  for  the  prem- 
ises would  equal  the  mortgage  liens  of  one  Gulick,  w^hich  was  prior 
to  the  liens  of  the  five  v/ho  entered  into  the  agreement,  and  eighty 
per  cent,  of  the  aggregate  amount  of  their  liens.  A  careful  reading 
and  analysis  of  all  the  evidence  contained  in  the  affidavits  presented 
and  used  during  the  hearing  in  the  district  court,  as  preserved  in 
the  bill  of  exceptions  and  record  filed  in  this  court,  satisfies  us 
that  the  judge  who  rendered  the  decision  and  confirmed  the  sale 
was  fully  warranted  in  the  conclusion  which  he  evidently  formed 
as  a  basis  for  the  disposition  made  of  the  matters  in  controversy, 
that  the  agreement  between  the  five  lienholders  was  one  by  which 
they  combined  to  jointly  purchase  the  property  for  their  common 
benefit,  and  not  an  agreement  not  to  bid  or  to  avoid  competition  or  to 
deter  others  from  bidding  or  competing  at  the  sale ;  that  in  so  com- 
bining they  had  no  fraudulent  or  illegal  intent  or  purpose.  This  being 
established,  then  the  question  arises  whether  such  an  agreement  is 
forbidden  by  or  is  contrary  to  law,  and  sufficient  to  set  aside  the 
sale  to  the  trustees  acting  or  bidding  for  the  parties  to  such  con- 
tract. We  have  no  doubt  that  in  the  earlier  cases  in  which  this  ques- 
tion arose  and  was  decided,  some  courts  of  high  authority  have  an- 
nounced a  doctrine  which  would  avoid  this  sale  solely  upon  the 
grounds  of  the  formation  of  such  an  association,  regardless  of  the 
intent  or  motives  of  the  parties,  assigning  as  a  reason  that  its  neces- 
sary and  unavoidable  effect  is  to  tend  to  discourage  or  prevent  com- 
petition ;  but  the  later  cases  have  in  effect  overruled  the  above  doc- 
trine and  established  what  we  consider  a  better  and  more  practical 

"The  arguments  of  counsel  and  part  of  the  opinion  are  omitted. 


756  rXF.Cl'TIOX 

one,  that  wlicre  an  examination  of  all  the  facts  and  circumstances 
shows  tlic  object  of  the  association  was  to  enable  the  parties  to  com- 
pete where  without  combinin;^  they  could  not  do  so,  formed  for  an 
lionest  purpose  and  with  such  an  intent,  and  not  with  any  view  to 
preventinc:  competition,  or  deterrinsr  bidders  or  "chilling  bids,"  the 
sale  will  bo  tipheld  and  completed.'^ 
Decree  aflirmed. 


"At  sales  on  execution  tlic  piiffinc;-  or  chillinq:  of  the  biddinjx  is  fraudu- 
lent. Moncricff  v.  Goldshorough,  4  H.  &  IM.  (Md.)  281.  i  Am.  Dec.  407 
(1700);  D(2AaJklsatV-\^-.Mj:Jiny^  I  Browne  (Pa,)  346  (1811);  Crowdcr  v. 
AHsti».  2  Tar.  &  P.  208  (1825)  ;  Rex  v.  Marsh,  3  Y.  &  J.  331  (1829)  ;  Bunts 
V.  Cole.  7  Blackf.  (Ind.)  265,  41  Am.  Dec.  226  (1844)  ;  Carson  v.  Laiv,  2  Rich. 
Eq.  (S.  Car.)  296  (1846)  ;  llcrndon  v.  Gibson,  38  S.  Car.  357,  17  S.  E.  145, 
20  L.  R.  A.  545,  37  Am.  St.  765  (1802);  Toole  v.  Johnson,  61  S.  Car.  34, 
39  S.  E.  254  (1901).  And,  generally,  if  practices  are  resorted  to  by  a  bidder 
or  combination  of  bidders  the  object  of  which  is  to  stifle  fair  competition 
the  sale  will  be  set  aside.  Jones  v.  Caszvell,  3  Johns.  Cas.  (N.  Y.)  29,  2  Am. 
Dec.  134  (1802)  ;  Thomt'son  v.  Davics,  13  Johns.  (N.  Y.)  112  (1816)  ;  Troup 
V.  Wood,  4  Johns.  Ch.  (N.  Y.)  228  (1820)  ;  Mills  v.  Rogers,  2  Litt.  (Ky.)  217, 

13  Am.  Dec.  263  (1822)  ;  Hazcley  v.  Cramer,  4  Cow.  (N.  Y.)  717  (1825)  ; 
Froncberger  v.  First  Nat.  Bank,  203  Fed.  429  (1913)  ;  Den  ex  deiii.  Smith  V. 
Greenlee,  2  Dev.  L.  (N.  Car.)  126,  18  Am.  Dec.  S64  (1829)  ;  Sniull  v^  Jones. 
I  Watts  &  S^XCaJ,i28  (1841)  ;  Hamburgh  Mfg.  Co.  v.  Fdsall,  5  N.  J.  Eq.  249 
(1845)  ;  Vantrees  V.  Hyatt,  5  Ind.  487  (1854)  ;  Slinghuff  y.  Eckel,  24  Pa^t. 
472  (1853);  IVooton  V.  Flinkle,  20  AIo.  290  (1855^;  Vocks  v.  Icard',  7  \\'alL 
(U.  S.)  559,  19  L.  ed.  275  (1868)  ;  National  Bank  of  the  Metropolis  v.  Sprague, 
20  N.  J.  Eq.  159  (1869)  ;  Packard  v.  Bird,  40  Cal.  378  (1870)  ;  Gage  v.  Graham, 
57  111.  144  (1870)  ;  Griffith  v.  Judge,  49  Mo.  536  (1872)  ;  Underwood  v.  Mc- 
)'eigh,  23  Grat.  (Va.)  409  (1S73)  ;  Barrett  v.  Bath  Paper  Co.,  13  S.  Car.  128 
(1879)  ;  Lau-nin  v.  Bradley,  13  Mo.  App.  361  (1883)  ;  Phehs  v.  Benson,  j6t 
Pa.  St.  418.  20  Atl.  86  (1894)  ;  Lennon  v.  Heindcl,  56  N.  J.  Eq.  8,  27  Atl.  147 
ri897)  ;  Hurst  v.  Fisher,  64  Ohio  St.  530,  60  N.  E.  626  (1901)  ;  Fislur  v. 
Hampton  Transp.  Co.,  136  Mich.  218,  98  N.  W.  1012,  112  Am.  St.  358  (1904)  ; 
Fletcher  v.  Johnson,  139  Mich.  51,  102  N.  W.  278,  11 1  Am.  St.  401  (1905)  ; 
Coal  &  Coke  R.  Co.  v.  Mar  pie,  70  W.  Va.  136,  73  S.  E.  261,  38  L.  R.  A.  (N. 
S.)  7i9n,  Ann.  Cas.  1913  D,  959n  (1911).  But  an  a.crreement  by  two  or  more 
persons  to  purchase  for  their  joint  benefit  is  not  unlaw-ful  where  the  purpose 
of  the  combination  is  honest,  as  to  prevent  a  sacrifice  of  the  property,  or 
where,  on  account  of  the  magnitude  of  the  sale,  purcliasers  who  would  other- 
wise be  excluded  are  enabled  to  participate  in  the  bidding.  Phippen  v.  Stick- 
ney,  3  Mete.  (Mass.)  384  (1841);  Smull  y.  Jones.  6  W:ittg  R{  S^XP?  ^  122 
(1843);  Szvitzer  v.  Skiles,  8  111.  (3  Gilm.)  529,  44  Am.  Dec.  72^  (1846); 
James  V.  Fulcrod,  5  Tex.  512,  55  Am.  Dec.  743  (1851)  ;  Bellows  v.  Rtissell,  20 
N.  H.  427,  51  Am.  Dec.  238  (1845)  ;  Kearney  v.  Taylor,  15  How.  (U.  S.)  494, 

14  L.  ed.  787  (1853);  Buckner  v.  Chamhlis,  30  Ga.  652  (i860);  Young_y. 
Snyder,  3  Grant  Cas.  (Pa.)  151  (1852)  ;  Jenkins  v.  Brink,  30  Cal.  586,  89  Am. 
^6^^34^1866)  ;  IVickFFv.  Hoppock,  6  Wall.  (U.  S.)  94,  18  L.  ed.  752  (1867)  ; 
Marie  v.  Garrison,  83  N.  Y.  14  (1880)  ;  IFunt  v.  Ftlintt,  80  Ind.  245,  41  Am. 
Rep.  794  (1881);  Oram  V  Rothermel,  98  Pa.  St.  300  (1881);  Pennsylvattia 
Transp.  Co. y.  Pitt.'^hurjjh^LC^J?-  Co.,  fi  W.  N.  Cas/(I^a.)  35  (1881)  ;  Smith  v. 
t:ilman,'s^  ^fd.  I83742  Am.  Rep.  329  (1881)  ;  Maffet  v.  I  jams,  103  Pa.  St._266 
C1883);  Hopkins  v.  Ensign,  \22  N.  Y.  144, ' 25  IS! .  E.  306,  9  L.  R.  A.  731 
(1890)  ;  Fidelity  Trust  Co.  v.  Mobile  St.  R.  Co.,  54  Fed.  26  (1893)  ;  Woodruff 
V.  Warner,  175  Pa.  St.  302,  34  Atl.  667,  52  Am.  St.  845  (1896),  question  of 
actual  Iraud  is  fdr  the  jury;  De  Baun  v.  Brand,  61  N.  J.  L.  624,  41  Atl.  958 
(1898)  :  Munson  v.  Magee,  22  N.  Y.  App.  Div.  Z2>2,<  47  N-  Y.  S.  042  (1897), 
affd.  161  N.  Y.  182 :  Bradjny.  O'Neil.  183  Pa.  St.  462.  38  Atl.  1023,63  Am.  St. 
761  (1898)  ;  Satterfeldv.  KTndley,  144  N.  Car.  455,  57  S.  E.  145,  15  L.  R.  A. 
ex.  S.)  399n,  12  Ann.  Cas.  1098  (1907)  ;  Snouffer  v.  Heisig  (Tex.),  130 
S.  W.  912  (1910). 


LEVI   V.    GREER  757 

LEVI  V.  GREER 

Supreme  Court  of  Pennsylvania,  1912 
236  Pa.  475 

Appeal,  No.  166,  Jan.  T.,  1912,  by  W.  N.  Seibert,  from  order 
of  C.  P.  Erie  Co.,  Feb.  T.,  1912,  No.  60,  setting  aside  sheriff's  sale 
in  case  of  Isaac  Levi  and  /.  P.  Trivitt  v.  R.  M.  Greer,  administrator 
of  the  estate  of  Elsie  A.  Greer,  deceased,  and  R.  M.  Greer,  et  al. 

Per  Curiam  :  The  setting  aside,  or  the  refusal  to  set  aside  a 
sheriff's  sale  is  in  the  sound  discretion  of  the  court  and  its  order 
will  not  be  disturbed  unless  it  appears  that  there  was  manifest 
error.  While  inadequacy  of  price  is  not  by  itself  sufficient  to  justify 
the  court  in  setting  aside  a  sheriff's  sale,  yet  where  there  is  great 
inadequacy,  the  court  may  seize  upon  other  circumstances  in  order  to 
give  relief;  Stroup  v.  Raymond,  183  Pa.  279;  Light  v.  Zeller,  195 
Pa.  315.  In  this  case  there  was  great  inadequacy  in  price  and  a  mis- 
description of  the  property  by  including  seven  and  a  half  acres  not 
owned  by  the  defendant  and  not  subject  to  the  lien  of  the  judgment, 
which  left  some  uncertainty  as  to  what  a  purchaser  would  take  by 
the  sale  and  clouded  tlie  title  of  a  third  party  who  joined  in  the 
application  to  set  aside  the  sale.  There  was,  in  addition  to  this,  con- 
duct on  the  part  of  the  purchaser,  who  refused  shortly  before  the 
sale  to  carry  out  his  agreement  to  buy  a  part  of  the  premises  at  pri- 
vate sale  and  who  thus  prevented  the  defendant  from  paying  the 
judgment,  which  indicted  unfairness  by  him  and  a  purpose  of  mis- 
lead. 

The  order  is  affirmed  at  the  cost  of  the  appellant.*® 

*''Mere  inadequacy  of  price  is  not  sufficient  in  itself  to  justify  the  setting 
aside  of  a  judicial  sale  of  propert3^  Livingston  V.  Byrne,  11  Johns.  (N.  Y.) 
555  (1864)  ;  Mcrcercau  v.  Prcst,  3  N.  J.  Eq.  460  (1836)  ;  Draine  v.  Smelser 
&  Henderson,  15  Ala.  423  (1849)  ;  Brittin  V.  Handy,  20  Ark.  381,  73  Am.  Dec. 
497  (1859)  ;  Smith  v.  Duncan,  16  N.  J.  Eq.  240  (1863)  ;  Kerr  v.  Havcrstick,  94 
Ind.  178  (1883)  ;  Coolbaugh  v.  Rocmer,  32  Minn.  445,  21  N.  W.  472  (1884)  ; 
Central  Pac.  R.  Co.  v.  Creed,  70  Cal.  497,  11  Pac.  772  (1886)  ;  Smith  v. 
Perkins,  81  Tex.  152,  16  S.  W.  805,  26  Am.  St.  794  (1891) ;  Barling  v.  Peters, 
134  111.  606,  25  N.  E.  765  (1890)  ;  Morrisse  v.  Inglis,  46  N.  J.  Eq.  306,  19  Atl. 
16  (1889)  ;  Cchurre  v.  Pearson,  27  App.  Div.  621,  50  N.  Y.  S.  112  (1898)  ; 
Clark  V.  Glos,  180  111.  556,  54  N.  E.  631,  72  Am.  St.  223  (1899)  ;  Ackerman  v. 
Hendricks,  117  Iowa  106,  90  N.  W.  522  (1902)  ;  Westmoreland  Build ing_ Assn. 
v.  Ncsbit.  21  Pa.  Super.  Ct.  150  (1902)  ;  J^ylej^i^,u£xmstrong,  235  Pa.  224,  83 
Atl.  577  (1912).  JBut  courts  are  not  slo\v^to  seizeupoiT^t^her  circumstances 
impeaching  the  fairness  of  the  transaction,  as  a  cause  for  vacating  it,  espe- 
cially if  the  inadequacy  be  so  gross  as  to  shock  the  conscience.  Reed  V. 
Carter,  3  Blackf.  (Ind.)  376,  26  Am.  Dec.  422  (1834)  ;  Graff  am  v.  Burgess, 
117  U.  S.  180,  6  S.  Ct.  686,  29  L.  ed.  839  (1885) ;  Fletcher  v.  McGill,  no  Ind. 
395,  ID  N.  E.  651,  II  N.  E.  779  (1886)  ;  Phillips  v.  IVUson,  i64j^a^  St  350,  30 
Atl.  264  (1S94);  Davis  v.  McCann,  143  Mo.  172,  44  S.  W.  795  (1897); 
Simmons  v.  Sharpe,  138  Ala.  451,  35  So.  415  (1903);  Kinkaid  V.  Rossa, 
31  S.  Dak.  559,  141  N.  W.  969,  Ann.  Cas.  1915D,  i098n  (1913).  So  also,  if  the 
sale  has  been  attended  by  an  irregularity.  Booth  v.  Webster,  5  Harr.  (Del.) 
129  (1848);  Byers  v.  Snrget,  19  Plow.  (U.  S.)  303,  15  L.  ed.  670  (1856); 
Schroeder  V.  Young,  161  U.  S.  334,  40  L.  ed.  721  (1895)  ;  Lennon  v.  Hcindel, 
56  N.  J.  Eq.  8,  2>7  Atl.  147  (1897)  ;  Hm^l  V.Lyans^  41  Pa,  Super.  Ct._28s 
(1909)  ;  Kissinger  V.  Zieger,  138  Wis.  368,  120  N.  W.  249  (1909)  ;  Shipley  v. 
Shamwell,  41  App.  D.  C.  267  (1914), 


758  KXECUTION 


JONES  V.  GOODBAR 

Supreme  Court  of  Arkansas,  1895 

60  Ark.  182 

C.  B.  Goodbar  issued  an  execution  on  a  judgment  confessed  on 
a  promissory  note  for  $150  before  a  justice  of  the  peace  and  placed 
tlie  same  in  tlie  hands  of  J.  T.  Jones,  a  constable.  On  January  26, 
1891,  tlie  constable  returned  the  execution  "not  satisfied"  and  the 
justice  renewed  it  for  a  year.  On  January  26,  1892,  the  constable 
again  brought  the  execution  to  the  justice  and  made  oral  report  that 
it  was  still  unsatisfied,  but  made  no  written  return  thereof.  After- 
wards the  appellee  recovered  judgment  against  the  appellants,  the 
constable  and  his  surety,  for  failure  to  return  the  execution.  A 
motion  for  new  trial  having  been  overruled  an  appeal  was  taken.^^ 

RiDDiCK,  J. :  The  question  to  consider  is  whether  the  bringing 
back  of  the  writ  on  the  return  day,  and  the  oral  report  by  the  con- 
stable to  the  justice  that  it  was  still  unsatisfied,  constituted  a  return 
tliereof,  witliin  the  meaning  of  the  statute. 

"A  return,"  says  Mr.  Herman,  "may  be  considered  as  the  cer- 
tificate of  the  officer  to  whom  any  process  is  directed,  stating  what 
he  has  done  in  obedience  to  the  command  therein  given,  or  the 
reason  of  his  neglect  in  not  fulfilling  them,  and  is  a  material  part  of 
his  duty."  Herman  on  Ex.,  p.  373.  Our  statute  requires  this  return 
to  be  made  in  writing,  and  that  the  name  of  the  officer  be  signed  to 
his  return.  Sand.  &  H.  Dig.,  section  6003.  But  this  would  probably 
be  the  law,  even  without  the  statute.   Herman  on  Executions,  p.  236. 

It  is  evident  that  one  object  in  requiring  the  officer  to  make  a 
return  of  the  writ  is  that  the  court  and  parties  interested  may  know, 
first,  whether  the  writ  has  been  obeyed,  and,  if  so,  in  what  manner, 
and  if  not  executed,  the  reason  of  the  officer  for  failing  to  execute 
it.  To  this  end  the  written  certificate  concerning  these  facts  is  re- 
quired. The  bringing  back  of  the  writ  by  the  officer,  and  filing  it  in 
the  office  of  the  justice  or  clerk  from  which  it  issued,  together  with 
this  written  certificate  of  his  proceedings  under  it,  indorsed  on  the 
writ  or  upon  some  paper  attached  thereto,  constitute  in  law  the  re- 
turn of  tlie  writ.  Making  the  indorsement  without  the  actual  return 
of  the  writ  is  not  a  return,  nor  is  it  a  return  to  bring  back  and  file 
the  writ  without  the  certificate  of  the  officer  required  to  be  indorsed, 
for  both  togetlier  constitute  the  return,  within  the  meaning  of  the 
statute.  State  v.  Melton,  8  Mo.  417;  Nelson  v.  Brown,  23  Mo.  13; 
Beall  V.  Shattuck,  53  Miss.  361 ;  Freeman  on  Ex.  (2d  ed.),  section 
353.  We  therefore  conclude  that  the  circuit  court,  under  the  facts 
of  this  case,  properly  held  that  the  officer  failed  to  return  the  writ.*^ 

*'The  arguments  of  counsel  and  part  of  the  opinion  of  the  court  are 
omitted.  There  was  error  on  another  point. 

*'Accord:  Ptirrinqton  v.  Loring,  7  Mass.  388  (1811);  Shover^  V.  Funk, 
5  Wat^jLiCPa.)  457  (1843).  ^^; 

"^     "It  is  the  diity  of  a  sheriff  or  other  ministerial  officer  to  return  all  writs 
on  the  return  day  thereof  with  a  short  account  in  writing  endorsed  by  him 


JONES   V.    GOODBAR  759 


thereon  of  the  manner  in  which  he  has  executed  the  same,  or  why  he  has  done 
nothing.  A  return  upon  an  execution,  which  is  sufficient  in  law ;  that  is,  a 
return  which  the  officer  has  the  right  to  make,  is  conclusive  between  the 
parties,  and  they  are  interested  to  have  the  officer  perform,  his  full  duty,  to 
make  his  return  and  file  the  writ  with  its  proper  custodian.  Neither  of  them 
can  be  deprived  of  the  return  by  his  neglect  or  failure  to  return  the  writ  by 
the  return  day,  and  the  court  in  which  the  judgment  was  obtained,  upon  which 
the  execution  issued,  may,  if  the  writ  be  not  returned  in  due  time,  award  a 
rule  against  the  officer  to  return  it,  and  if  he  do  not  obey  the  rule,  compel 
him  to  make  his  return  upon  the  writ  and  to  return  it  by  attaching  and  fining 
him  for  contempt."  Per  Riely,  T.,  in  Rozve  V.  Hardv,  97  Va.  674,  34  S.  E. 
625,  75  Am.  St.  811  (1899)  ;  People  v.  Everest,  4  Hill  (N.  Y.)  71  (1843); 
Tidd's  Practice  (oth  ed.)  307;  Clerk's  Case,  Cro.  Eliz.  873  (1601)  ;  M  or  eland 
V.  Leigh,  i  Stark  N.  P.  312  (1816)  ;  Jupp  v.  Cooper,  L.  R.  5  C.  P.  D.  26 
(1879).  A  failure  by  the  officer  to  make  a  return  will,  in  most  states,  render 
him  liable  to  an  action  for  damages  and  in  some  states  to  a  penalty.  White 
V.  Wilcox,  I  Conn.  347  (1815)  ;  Bnrk  v.  Campbell,  15  Johns.  (N.  Y.)  456 
(1818)  ;  McGregor  v.  Brown,  22  Mass.  (5  Pick.)  170  (1827)  ;  Runleit  v.  Bell, 
5  N.  H.  433  (1831)  ;  Keith  v.  CommonzvealtJi,  5  J.  J.  Marsh.  (Ky.)  360 
(1831)  ;  Cnmmonzvcalth  v.  McCoy.  8  Watts  (Pa..)  153,  34  Am.  Dec.  445 
(1839)  ;  Pardee  v.  Robertson,  6  Hill  (N.  Y.)  550  (1844)  ;  Lawrence  v.  Rice, 
53  Mass.  (12  Mete.)  535  (1847)  ;  Bachman  v.  Fcnsjennacher.  112  Pa.  St.  331, 
4  Atl.  546  (1886)  ;  McGiiire  v.  Bdusher,  52  iSI.  YTApp.  Div.  276,"55~Tsrr^.  S. 
382  (igoo)  ;  Bell  v.  Wycoff,  131  N.  Car.  245,  42  S.  E.  608  (1902)  ;  Bickham  v. 
Kosminsky,  74  Ark.  413,  86  S.  W.  292  (1905).  So  also  for  a  false  return. 
Weld  V.  Bartlett,  10  Mass.  470  (1813)  ;  Clough  v.  Monroe,  34  N.  H.  381 
(1857)  ;  Long  v.  Towl,  41  Mo.  400  (1867)  ;  Wright  v.  Darlington  joSJ'a^.St. 
372  (1885)  ;  Rcmick  v.  Wentworth,  89  Maine  392,  36  Atl.  622  ~0^6). 

Failure  to  make  return,  and  delays  and  defects  in  the  return  of  the  writ 
do  not,  in  most  jurisdictions,  affect  the  purchaser's  title.  .SjmtUjv^Mickleyj 
tRawle(Pa.)  95  (1828);  Jackson  ex  dem.  Ten  Eyck  v.  Walker,  4  Wend. 
(N.  Y.r452  (1830);  Doe  ex  dem.  Wolf  v.  Heath,  7  Blackf.  (Ind.)  154 
(1844)  ;  Forrest  &  Lyon  v.  Camp,  16  Ala.  642  (1849)  ;  Hinds'  Heirs  v.  Scott, 
II  Pa.  St.  IQ^I  Am.  Dec.  506  (1849)  ;  Phillips  v.  Coffee,l7~mLSA,  di^ra. 
Dec.  357  (1855)  ;  Low  v.  Adams,  6  Cal.  277  (1856)  ;  Phillips  v.  Schiffer,  64 
Barb.  (N.  Y.)  548,  7  Lans.  347  (1873);  Murray  v.  Chadzvick.  ^2  Vt.  293 
(1880);  Willis  V.  Smith,  66  Tex.  31,  17  S.  W.  247  (1886).  But  in  states 
where  the  practice  of  extending  land  on  execution  prevails,  it  is  essential  that 
the  return  be  filed  in  conformity  with  the  statute.  Bott  v.  Burnell,  11  Mass. 
163  (1814);  Prescott  V.  Pettee,  3  Pick.  (Mass.)  331  (1825);  Mitchell  v. 
Kirtland,  7  Conn.  229  (1828);  Walsh  v.  Anderson,  135  Mass.  65  (1883). 
In  Massachusetts:  "It  is  well  settled  that  a  title  to  real  estate,  acquired 
under  a  judgment  and  execution  can  not  be  established  unless  the  execution 
is  returned  into  court,  but  as  the  statute  does  not  fix  the  time  within  which 
this  must  be  done,  the  return  will  be  effectual  if  it  is  made  at  any  time 
before  the  execution  is  put  in  evidence  in  the  case  in  which  it  is  relied  on. 
It  is  equally  true  that  an  officer  can  not  justify  an  attachment  of  goods  on 
mesne  process  unless  he  returns  his  writ  into  court."  Fletcher  v.  Wrighton, 
184  Mass.  547,  69  N.  E.  313  (1904).  See  also  Firth  v.  Haskell,  148  Mass.  501, 
20  N.  E.  164  (1889)  ;  Rand  v.  Cutler,  155  Mass.  451,  29  N.  E.  1085  (1892). 


760  r.XKCUTION 

SECTION  8.    TITLE  OF  THE  PURCHASER 

HARDENBURG  v.  BEECHER 

Supreme JJouRT  or  Pennsylvania,  1883 

104  Pa.  St.  20 

Error  to  the  Court  of  Common  Pleas  of  Warren  County,  of 
January  term,  1S83,  No.  382. 

Rc])lcvin,  brought  November  6,  1882,  by  Moses  Beecher  and 
\\'.  H.  Copcland  against  G.  W.  Hardenburg  and  B.  F.  McClure,  for 
"one  hundred  barrels  crude  petroleum."  The  property  was  re- 
plevied and  a  claim  property  bond  given.  Plea,  non  cepit,  and  prop- 
erty.^^ 

The  interest  of  Merrill  and  Markert  in  twenty-five  acres  of  land 
under  articles,  was  taken  in  execution  on  three  several  writs  and 
sold  July  26,  1882,  to  the  defendants,  G.  W.  Hardenburg  and  B,  F. 
McClure,  for  the  sum  of  $1,100,  and  the  deed  therefor  was  ac- 
knowledged on  November  2y,  1882.  The  costs  of  sale  only  were 
then  paid,  but  after  tlie  acknowledgment  of  the  deed  the  balance  of 
the  bid,  on  application  to  court,  was  applied  upon  the  purchase 
money  judgments  of  Plardenburg,  McClure  and  M.  D.  Archibold. 

At  the  date  of  the  sale  to  said  Hardenburg  and  McClure,  July 
26,  1882,  there  were  two  oil  wells  on  said  twenty-five  acres,  flow- 
ing several  barrels  of  oil  per  day.  Soon  after  said  sale  defendants 
took  possession  of  said  twenty-five  acres,  said  Merrill  and  Markert 
having  abondoned  tlie  same,  repaired  the  tanks  and  wells,  and  saved 
the  flow  of  oil. 

The  plaintiff's,  Beecher  and  Copeland,  issued  an  alias  fieri  facias 
on  their  judgment,  September  2,  1882,  to  No.  13,  December  term, 
1882,  and  levied  on  the  oil  in  question  in  tanks  on  the  land,  being  oil 
produced  on  said  twenty-five  acres  from!  the  said  wells,  after  the 
sale  of  the  said  twenty-five  acres  by  the  sheriff  to  the  defendants, 
and  before  the  acknowledgment  of  the  deed  for  the  same  land  to 
them.  Said  oil  was  levied  on  October  16,  1882,  and  sold  as  the 
property  of  Merrill  and  Markert  to  plaintiffs  October  26,  1882,  being 
one  hundred  barrels  crude  petroleum,  sold  at  ninety  cents  per  bar- 
rel. Said  oil  was  sold  in  tanks  on  the  land  then  in  possession  of  the 
defendants.  The  defendants  claimed  the  oil  by  virtue  of  the  sheriff's 
sale  to  them  of  the  land  as  above  stated,  and  refused  to  surrender 
the  same  to  the  plaintiffs,  whereupon  plaintiffs  brought  this  action 
of  replevin  for  said  one  hundred  barrels  of  crude  petroleum. 

Judgment,  on  case  stated,  was  entered  for  the  plaintiff  for  ninety 
dollars  and  defendants  took  this  writ  of  error. 

Clark,  J. :  A  purchaser  at  a  sheriff's  sale,  before  his  deed  has 
been  acknowledged,  has  an  inceptive  interest  in  the  land;  Morrison 
v.  IVurtz,  7  Watts.  (Pa.)  437;  such  an  interest  as  will  be  bound  by  a 

"Part  of  the  reporter's  statement  of  facts  is  omitted. 


HARDENBURG   V.    BEECHER  761 

judgment;  Rohh  v.  Mann,  i  Jones  (Pa.)  300.  The  subsequent  ac- 
knowledgment and  delivery  of  the  sheriff's  conveyance  inures  to  the 
benefit  of  lien  creditors,  and,  as  in  the  case  of  a  private  individual 
sale,  the  incumbrancer  by  relation  has  the  benefit  of  his  security  to 
the  extent  of  the  v^hole  estate;  such  an  estate  is  attended  with  the 
ordinary  consequences  of  sale  by  an  individual;  Hawk  v.  Stoiich,  5 
Serg.  &  R.  (Pa.)  161 ;  Stephen's  A  pp.,  8  W.  &  S.  (Pa.)  188;  Slater's 
A  pp.,  4  Cas.  (Pa.)  170.  The  title  acquired  under  the  sheriff's  deed 
relates  back  to  the  time  of  the  sale,  not  merely  to  the  date  of  the 
deed;^°  Hoyt  v.  Koons,  7  Harr.  (Pa.)  277;  but  not  so  as  to  wholly 
divest  the  legal  ownership  of  the  debtor,  who,  until  the  acknowl- 
edgment of  the  deed,  is  entitled  to  the  possession,  with  all  its  attend- 
ant advantages;  Garrett  v.  Dewart,  7  Wr.  (Pa.)  342.  A  judgment 
entered  against  the  debtor  after  the  day  of  the  sale  is  not  a  lien  upon 
the  land,  although  the  deed  to  the  purchaser  was  not  acknowledged 
until  a  subsequent  time;^^  Hahn  v.  Rhoads,  i  P.  &  W.  (Pa.)  484.  It 
follows  as  the  result  of  all  these  cases,  that  if  the  deed  be  subse- 
quently acknowledged,  the  vendee  has  such  inceptive  title  by  his  mere 
purchase  as  will  be  bound  by  the  lien  of  a  judgment,  whilst  the  debtor 
has  no  such  title  remaining  as  will  support  a  lien ;  if,  however,  the 
acknowledgment  be  refused,  the  vendee's  contract  is  rescinded,  and 
the  debtor's  title  remains  as  if  no  sale  had  been  made. 

The  debtor  is,  however,  entitled  to  the  possession  until  the  ac- 
knowledgment ;  the  purchaser  has  by  his  mere  purchase  acquired  no 
title  to  the?  present  enjoyment."    This  right  to  possession  carries 

^"Accord:  Smith  v.  Allen,  i  Blackf.  (Ind.)  22  (1818) ;  Robinson  v 
Robinson,  3  Harr.  (Del.)  391  (1841)  ;  Boyd's  Lessee  v.  Longworth,  11  Ohio 
235  (1842);  Thomas  v.  Crofut,  14  N.  Y.  474  (1856);  Barrett  v.  Western 
66  Barb.  (N.  Y.)  205  (1870);  Edwardsville  R.  Co.  v.  Sawyer,  92  111.  377 
(1879);  Farlin  v.  Sook,  30  Kans.  401,  i  Pac.  123,  46  Am.  Rep.  100  (1883)  ; 
Hackensack  Sav.  Bank  v.  Morse,  46  N.  J.  Eq.  161,  18  Atl.  367  (1889)  ;  Penn- 
sylvmia  Schuvl.  V.  R.  Co  vCleary,  12.S  Pa.  St.  442.  17  Atl.  468.  11  Am.  ^f 
913  (1889).  Contra  :  Leger  v.  Doyle,  11  Rich.  LTTBTCar.)  109,  70  Am.  Dec.  240 
(1857)  ;  Den  ex  dent.  Green  v.  Steehnan,  10  N.  J.  L.  193  (1828).  Cf.  Leach 
V.  Koenig,  55  Mo.  451  (1874). 

"Accord:  Fell  v.  Price,  8  III.  (3  Gilm.)  186  C1846)  ;  Marshall  v.  McLean, 
3  G.  Greene  (Iowa)  363  (1852);  Miller  v.  Wilson,  32  Md.  297  (1869); 
Greer  v.  Winter  smith,  85  Ky.  516,  4  S.  W.  2^2,  9  Ky.  L.  96,  7  Am.  St.  613 
(1887);  Robinson  v.  Thornton,  102  Cal.  675,  34  Pac.  120  (1893);  Dumond 
V  Church,  4  App.  Div.  194,  38  N.  Y.  S.  557,  74  N.  Y.  St.  176  (1896); 
Cf.  Van  Rensselaer  v.  Sheriff  of  Albany,  i  Cow.  (N.  Y.)  501  (1823). 

^=A  conveyance  is  necessary  to  complete  the  title  of  the  purchaser  of 
real  estate  sold  on  execution,  and  the  right  to  possession  follows.    Hall^v 
Benner.  i  Pen.  &  W   (Pa.)  402  (1830)  ;  Kelly  v.  Governor,  14  Ala.  ^41  (1848)  ; 
Storchv.  Carr.  2«  Pa.  St.  ^ix  (1857)  ;  Dminica  v.  Coy,  24  Mo.  167,  69  Am. 
Dec.  420  (1857)  ;  Garrett  wTDeKart,  43  Pa.  St.  .^42.  82  Am.  Dec.  570  (1862)  ; 
Rogers  v.  Caivood,  i  Swan  (Tenn.)   142,  55  Am.  Dec.  729  (1851)  ;  Edwards 
v.  Miller,  4  Pleisk.  (Tenn.)  314  (1871)  ;  Robinson  v.  Hall,  2,2,  Kans.  139,  5  Pac. 
763   (1885).    But  a  deed  is  unnecessary  where  a  leasehold  interest  is  sold 
Williams  v.   Downina    18   Pa.    St.  60    (i8m).    In   jurisdictions   allowing   a 
sfatiitory  period  lor  the  redemption  of  the  property  bv  the  debtor,  the  pur- 
chaser is  not  entitled  to  a  deed  from  the  sheriff  until  the  expiration  of  such 
period.    Evcrtson  v.  Sazvyer,  2  Wend.  (N.  Y.)  507  (1829)  ;  N.  Y.  Code  Civ 
Pro.,   §§   1438-41;   Cal.   Code  Civ.   Pro.,   §§   700-1;   Schcrmerhorn  v.  Merrill, 
I  Barb.  (N.  Y.)  511   (1847)  ;  McMillan  v.  Richards,  9  Cal.  365,  70  Am.  Dec 
(jho  (1858)  ;  Cummings  v.  Coe,  10  Cal.  529  (1858)  ;  Curtis  v.  Bush,  39  Barb. 


y(i2  EXECUTION 

with  it  its  attendant  advantai::cs,  the  right  to  the  growing  crops  as 
they  may  mature ;  the  right  to  an  ordinary  use  of  a  mine  or  quarry, 
or  to  the  flow  from  an  oil  well.  The  debtor  will  not  be  allowed  to 
commit  waste  or  destruction  of  the  premises."'"'  The  sheriff's  vendee 
is,  therefore,  only  entitled  to  the  growing  grain,  to  the  use  of  mine 
or  (]uarry,  and  the  oil  upon  the  lands  embraced  within  his  purchase, 
subiect  to  the  right  accruing  to  the  debtor  under  his  possession. 
The  grain,  the  coal,  or  the  oil,  so  far  as  they  are  of  the  realty,  belong 
to  the  vendee;  the  debtor  may,  however,  pending  the  sale,  and 
until  the  acknowledgment  of  the  deed,  cut  the  ripened  grain,  mine 
the  coal,  or  receive  the  flow  of  oil,  and  apply  the  product  to  his  own 
use.  Whilst  these  products  are  attached  to  the  realty  they  belong 
to  the  vendee,  and  it  is  by  ordinary  severance  only  that  they  become 
the  property  of  the  debtor.^* 

The  grain  as  a  growing  crop,  the  coal  in  the  mine,  or  the  oil  in 
the  well,  could  not,  after  the  sale  of  the  land,  be  seized  and  sold  upon 
execution  as  the  property  of  the  debtor,  nor  would  the  debtor  be 
allowed  to  sell  or  waste  them.  But  if,  before  the  acknowledgment, 
the  grain  ripen  and  the  debtor  sever  it  from  the  land,  if  he  continue 


(N.  Y.)  66i  (1863)  ;  Page  v.  Rogers,  31  Cal.  293  (1866)  ;  Cook  v.  Knozvlcs, 
38  Mich.  316  (1878)  ;  Foorman  v.  Wallace,  75  Cal.  552,  17  Pac.  680  (1888)  ; 
Shirk  V.  Thomas,  121  Ind.  147,  22  N.  E.  976,  16  Am.  St.  381  (1889) ;  Dray  v. 
Dray,  21  Ore.  59,  27  Pac.  223  (1891)  ;  Hill  v.  Szvihart,  148  Ind.  319,  47  N.  E. 
705  (1897)  ;  Wood  V.  Conrad,  2  S.  Dak.  405,  50  N.  W.  903  (1891).  In  some 
states  a  sheriff's  deed  must  be  acknowledged.  Roads  v.  Symmes,  i  Ohio  281, 
13  Am.  Dec.  621  (1824)  ;  Boal  v.  King,  Wright  (Ohio)  223  (1833)  ;  RdlasJf. 
McCarfyj_  10  VJ^attj  (Pa.)  13  (1840);  StorcjLV.  Cqrr,  28  Pa.  St.  i.^'^  (i8q7)  : 
Ryan  v.  Carr,  46  Mo.  483  (1870) ;  Hammond  v.  Gordon,  93  Mo.  223,  6  S.  W. 
93  (1S87).  Contra:  Doe  ex  dcm.  Wayman  v.  Naylor,  2  Blackf.  (Ind.)  32 
(1826);  Greer  v.  Howard,  4  Ky.  L.  350  (1882);  Stephenson  v.  Thompson, 
13  111.  186  (1851)  ;  White  v.  Farley,  81  Ala.  563,  8  So.  215  (1886)  ;  Faxton  v. 
Heron,  41  Colo.  147,  92  Pac.  15  (1907)  ;  McNamara  v.  McNamara,  135  N.  Y. 
Supp.  215  (1911). 

"The  debtor  in  possession  is  answerable  to  the  sheriff's  vendee  for  waste 
committed  after  the  sale.  Rich  v.  Baker,  3  Denio  (N.  Y.)  79  (1846) ;  McKeen 
V.  Gavimon,  33  Maine  187  (i8si)  ;  Thomas  v.  Crofut,  14  N.  Y.  474  (1856)  ; 
Sands  v.  Pfeiffer,  10  Cal.  258  ('1858)  ;  Marquette  H.  &  O.  R.  Co.  v.  Atkinson, 
44  Mich.  166,  6  N.  \V.  230  (1880);  Whitney  V.  Huntington,  34  Minn.  458, 
26  N.  W.  631,  ^7  Am.  Rep.  68  (1886)  ;  Gourley  v.  Lnkens,  4  Montg.  Co.  (Pa.) 
15  (1888).  Otherwise  where  a  house  is  accidentally  destroyed  by  fire. 
Merritt  v.  Richcy,  127  Ind.  400,  27  N.  E.  131   (1890). 

"Where  there  is  no  severance,  actual  or  constructive,  growing  crops 
pass  to  the  purchaser  of  land  at  e.xecution  sale.  Bear  v,  Bitzer.  16  Pa.  St.  175, 
55  Am.  Dec.  490  (1851);  Bloom  v.  Welsh,  27  N.  J.  L.  177  (1858)  ;  Nichols 
V.  Dewey,  86  Mass.  (4  Allen)  386  (1862);  Scriven  v.  Moote,  36  Mich.  64 
(1877);  Frost  v.  Render,  65  Ga.  15  (1880);  Thzveat  v.  Stamps,  67  Ala.  96 
(1880);  Thomas  v.  Noel,  81  Ind.  382  (1882);  Heavilon  v.  Farmers'  Bank, 
81  Ind.  249  (1881)  ;  Smith  V.  Hague,  25  Kans.  246  (1881)  ;  Long  v.  Seavers, 
103  Pa.  St.  517  (1883).  Contra:  Cassilly  v.  Rhodes,  12  Ohio  88  (1843); 
Albin  V.  Riegcl,  40  Ohio  St.  339  (1883)  ;  contra,  as  to  matured  crops,  Hecht 
V.  Dittman,  56  Iowa  679,  7  N.  W.  495,  10  N.  W.  241,  41  Am.  Rep.  131  (1881)  ; 
First  Nat.  Bank  v.  Beegle,  52  Kans.  709,  35  Pac.  814,  39  Am.  St.  365  (1894). 
In  Potter  v.  Lambie,  142  Pa.  K'i'^,  21  Atl.  888  (1891),  the  purchaser  who 
had~not  dispossessed  the  debTor  by  legal  proceedings  or  otherwise,  was  held 
a  trespasser  for  removing  part  of  the  crops.  See  N.  Y.  Code  Civ.  Pro.,  §  1441. 
Richardson  v.  Dinkgrave,  26  La.  Ann.  632  (1874)  ;  Frank  v.  Magee,  50  La. 
Ann.  1066,  22  So.  939  (1S98). 


HARDENBURG   V.    BEECHER  763 

the  ordinary  work  of  the  mine,  or  operate  the  oil  well,  the  grain, 
the  coal,  and  the  oil,  the  ordinary  products  of  the  land,  during  the 
lawful  possession  of  the  debtor,  are  his ;  these  are  some  of  the  at- 
tendant advantages  of  his  possession.  After  severance  and  posses- 
sion taken  by  the  debtor,  these  products  are  of  course  liable  to 
execution  for  his  debts. 

But  if  he  voluntarily  abandon  the  possession  of  the  land,  and 
surrender  to  the  sheriff's  vendee,  he  loses  all  these  attendant;  ad- 
vantages.^^ 

If  the  vendee  enter  under  these  circumstances,  he  Is  lawfully 
in  possession;  the  subsequent  acknowledgment  of  the  deed  gives 
him  title  by  relation  from  the  date  of  the  sale.  The  debtor's  right 
to  remain  until  the  sale  is  fully  completed,  and  to  enjoy  its  inci- 
dental advantages  as  such,  are  not  the  subject  of  execution,  nor 
is  he  obliged  to  remain  for  the  benefit  of  his  creditors ;  the  privilege 
is  a  personal  one,  and  he  may  exercise  it  or  not,  as  he  chooses. 

Hardenburg  and  McClure  bought  the  lands  and  the  oil,  and  if 
Merrill  and  Markert,  the  debtors,  without  any  fraud,  abandoned 
their  possession  and  suffered  the  vendees  to  enter,  if  they  did  not 
stand  upon  their  rights  or  claim  the  advantages  incident  to  posses- 
sion, but  voluntarily  relinquished  all,  we  think  the  vendees  were 
justified  In  making  an  entry  for  the  purpose  of  securing  the  oil 
which  flowed  from  the  lands  they  had  already  purchased,  and  which 
were  subsequently  conveyed  to  them.  If,  whilst  lawfully  in  pos- 
session, they  erected  tanks  and  received  the  flow  of  oil  from  the 
well,  which  otherwise  would  have  gone  to  waste,  the  subsequent 
acknowledgment  of  the  deed  would  as  certainly  have  confirmed 
their  title  to  the  oil,  part  and  parcel  of  the  land  when  they  bought, 
as  to  the  land  itself.  Merrill  and  Markert  might  have  remained 
pending  the  acknowledgment  of  the  sheriff's  deed  and  received  and 
claimed  this  oil  as  their  own,  but  they  were  not  obliged  to  do  so. 


^'A  purchaser  at  sheriff's  sale  upon  obtaining  title  may,  if  he  can  do  so 
peaceably,  take  possession  of  the  land.  Taylor  v.  Cole,  3  T.  R.  292  (1789)  ; 
McDougall  v.  Sticker,  1  Johns.  (N.  Y.)  42  (1806) ;  Orscr  v.  Storms,  9  Cow. 
(N.  Y.)  687,  18  Am.  Dec.  543  (1826)  ;  Leidv  y.  Proctor.  07  Pa.  St.  486 
(1881),  but  he  can  not  take  forcible  possession,  the  defendant  is  only  bound 
to  surrender  when  statutory  proceedings  or  a  judgment  in  ejectment  require  it. 
People  ex  rel.  Brinkerhoff  v.  Nelson,  13  Johns.  (N.  Y.)  340  (1816)  ;  Evert- 
son  v.  Sawyer,  2  Wend.  (N.  Y.)  507  (1829)  ;  Coleman  v.  Hair,  22  Ala.  596 
(1853)  ;  trick  V.  Fiscus,  164  Pa.  St.  623,  30  Atl.  515  (1894).  The  common-law 
remedy  ot  tlie  purchaser  to  obtain  possession  is  ejectment.  Morton  v.  Sanders, 
2  J.  J.  IMarsh.  (Ky.)  192  (1829)  ;  Den  ex  dem.  Davis  v.  Evans,  27  N.  Car. 
525  (1845)  ;  Odonnell  v.  McMurdie,  6  Humph.  (Tenn.)  134  (1845)  ;  Downing 
V.  Sullivan,  64  Conn,  i,  29  Atl.  130  (1894)  ;  Gimn  v.  Hardy,  130  Ala.  642,  31 
So.  443  (1900).  In  a  number  of  jurisdictions  a  summary  proceeding  to  obtain 
possession  is  provided  bv  statute.  Ferguson  v.  Blakenv,  6  Ark.  296  (1845)  ; 
Spraker  v.  Cook,  16  N.  Y.  567  (1858)  ;  N.  Y.  Code  Civ.  Pro.,  §  22.-!2:  Wal- 
hddne's  Aht^eal.  QZ.  Pa.  St.  466  (1880)  ;  Moore  v.  Moore,  23  Super  Ct.  Pa.  73 
(1903);  Pa.  Act  of  April  20,  1905,  P.  L.  239,  2  P.  &  L.  Dig.  (2d  ed.)  3491. 
As  to  writs  ot  assistance  see  Lundstrum  v.  Branson,  92  Kans.  78,  139  Pac. 
1 172  (1914).  As  to  the  New  England  practice  see  note  to  Chenery  v.  Stevens, 
97  Mass.  77,  supra. 


-64  EXECUTION' 

Thcv  can  not  complain,  as  the  claun  of  tlicse  creditors  to  the  oil  can 
occupy  no  hij^^hcr  jilacc  than  that  of  Merrill  and  Markert. 
The  judt^ment  is  therefore  reversed.^^ 


CHAMPNEY  V.  SMITH 

Supreme  Judicial  Court  of  Massachusetts,  i860 

81  Mass.  512 

Action  of  tort  for  the  conversion  of  forty-eight  and  one-half 
cords  of  wood.  At  the  trial  in  the  Superior  Court  it  was  agreed 
that  the  defendants  purchased  wood  of  a  deputy  sherifif,  who  sold  it 
on  execution  against  S.  L.  Arnold  &  Co.  as  their  property,  when  it 
was  in  fact  the  jiroperty  of  the  plaintiff.  The  defendants  contended 
that  the  plaintiff's  remedy  was  against  the  officer,  and  not  against 
them.  But  Putman,  J.,  ruled  otherwise.  The  jury  returned  a  verdict 
for  the  plaintiff,  and  the  defendant  alleged  exceptions. 

AIetcalf,  J. :  A  purchaser  at  an  officer's  sale  of  A's  goods,  on 
an  execution  against  B,  acquires  no  property  in  them,  and  can 
justify  no  intermeddling  with  them.  For  any  acts  of  assumed  own- 
ership or  control  thereof  he  is  liable  to  A  in  any  action  to  which  he 
would  have  been  liable  if  there  had  been  no  sale.  Cases  cited  in 
Biiffum  V.  Deane,  8  Cush.  (Alass.)  41 ;  Shaw  v.  Tunhridge,  2  W.  Bl. 
1064;  Stone  V.  Ehherly,  i  Bay  (S.  Car.)  317. 

We  understand  that  the  defendants  took  and  carried  away  the 
wood,  under  Smith's  claim  thereto,  by  virtue  of  the  officer's  sale. 
The  plaintiff  has  therefore  adopted  a  proper  form  of  action,  though 
he  might  have  maintained  replevin. 

Exceptions  overruled.^^ 

"So  it  has  been  frequently  held  that  the  purchaser  is  entitled  only  to  rent 
which  accrues  after  the  sheriff's  deed  is  acknowledged.  Scheerer  v.  Stanley, 
2  Rawle  (PaJ  276  (1830);  Bank  of  Penns:ylvania  v.  Wise.  7,  Watts  (Pa.) 
394  (1834)  ;  Smith  v.  Colvin,  17  Barb.  (N.  Y.)  157  (1853)  ;  Swiff  vTAgncs, 
33  Wis.  228  (1873)  ;  Millard  v.  McMullin,  68  N.  Y.  345  (1877)  ;  Ktrkpatrick 
V.  Boyd,  QO  Ala.  449,  7  So.  913  (1889)  ;  Israel  v.  Cloiigh,  5  Pa.  Dist.  R.  325 
(1896)  ;  King  v.  Bosscrman,  13  Pa^Supcr.  Ct.  480  (J 900)  ;  Tate  v.  Saunders, 
245  Mo.  186^' 149  ^^V.  485  (1912).  Gontra:  Stayton  V.  Morris,  4  Harr. 
(Del.)  224  (1843)  ;  Dailcy  v.  Grimes,  27  Md.  440  (1867)  ;  Kane  v.  Mink,  64 
Iowa  84,  19  N.  W.  852  (1884).  As  to  the  respective  rights  of  the  purchaser 
and  the  debtor  in  jurisdictions  where  the  debtor  is  allowed  a  period  to  redeem, 
compare  Reynolds  v.  Lathrop,  7  Cal.  43  (1857)  ;  Walker  v.  McCiisker,  71  Cal. 
594  12  Pac.  723  (1887)  ;  Sadler  v.  Kearney,  143  Cal.  506  (1904),  with  Wright 
V  Williams,  7  Lea  (Tenn.)  700  (1881)  ;  Mcrritt  V.  Gibson,  129  Ind.  155,  27 
N.  E.  136,  15  L.  R.  A.  277  (1891),  and  with  Sowles  V.  Ilauley,  64  Vt.  412,  23 
Atl.  725  (1892);  Pringle  v.  James,  109  111.  App.  loo  (1902);  Kennedy  v. 
Trumble,  32  Wash.  614,  73  Pac.  698  (1903)- 

''A  sale  on  execution  passes  only  the  right,  title  and  interest  of  the 
judgment  debtor.  If  the  debtor  has  no  interest,  none  passes  by  the  sale  to 
the  purchaser.  There  is  no  warranty  in  judicial  sales,  and  if  the  sheriff  sells 
in  good  faith,  he  is  not  responsible  to  the  purchaser  for  any  defects  in  title. 
The  purchaser  takes  what  he  gets  and  no  more.  Caveat  Emptor  is  the  rule. 
The  Monte  Allcgre,  9  Wheat.  (U.  S.)  616,  6  L.  ed.  174  (1824)  ;  Duncan  v. 


CHAMPNEY   V.    SMITPI  765 


Garratt,  I  Car.  &  P.  169,  2  L.  J.  (O.  S.)  K.  B.  142,  26  R.  R.  629  (1824)  ; 
fWgdZiLV^>S"cAi:^iLs^^.Sjerg^&  R.  rP'i-)  156,  n  Am.  Dec.  691  (1822)  ;  Weidler 
y.  Farmers  Batik ^J.L.S£XS^&  R7  (Pa.)  134  (1824)  ;  Freeman  v.  Caldwell, 
loWatts  (Pa.)  Q  (1840)  ;  Williams  V.  Miller,  16  Conn.  144  (1844)  ;  Auslin 
V.  'I'ilden,  14  Vt.  325  (1842)  ;  Wood  v.  Calvin,  2  Hill  (N.  Y.)  566,  38  Am.  Dec. 
598  (1842)  ;  Mervine  v.  Vanlier,  7  N.  J.  Eq.  34  (1848)  ;  V annoy  v.  Martin, 
41  N.  Car.  169,  51  Am.  Dec.  418  (1849)  ;  Chapman  v.  Speller,  14  Ad.  &  El.  (N. 
S.)  621  (1850)  ;  Vansyckle  v.  Richardson,  13  111.  171  (1851)  ;  McCartney  V. 
/^t«5r,  25  Ala.  6S1  (1S54)  ;  Creps  V.  Baird,  3  Ohio  St.  277  (1854)  ;  Carpenter 
V.  Stilwell,  II  N.  Y.  61  (1854)  ;  Phillips  v.  Zerhe  Run  &  ShaiiwkinJ inprove- 
ment  Co.,  25  Pa.  .St.  56  (1855)  Hamsmith  V.  Espy,  19  Iowa  444"  (IB65)  ; 
Coombs  V.  Gordcn,  59  Maine  iii  (1871)  ;  Bassett  v.  Lockard,  60  111.  164 
(1871)  ;  Fan.s-(-ojoc  v.  Kimlcr,  yj  111.  151  (1875)  ;  Frost  v.  Yonkcrs  Sav.  Bank, 
70  N.  Y.  553,  (8  Hun)  26  Am.  Rep.  627  (1877)  ;  Carbine  v.  Morris,  92  111.  555 
(1879)  ;  li^jjls,  V  Z/"^w.  /^3'^^,  Tn<S  Pa.  St.  Ill  (l88zi")  ;  V/right  V.  Tichcnor,  104 
Ind.  185,  3  N.  E.  853  (1885)  ;  Smith  v.  Wortham,  82  Va.  937,  i  S.  E.  331 
(1887);  Hexter  v.  Schneider,  14  Ore.  184,  12  Pac.  668  (18S6)  ;  Greer  v. 
Wintcrsmith,  85  Ky.  516,  4  S.  W.  232,  9  Ky.  L.  96,  7  Am.  St.  613  (1S87)  ; 
Lewark  V.  Carter,  117  Ind.  206,  20  N.  E.  119,  3  L.  R.  A.  440,  10  Am.  St.  40 
(1888)  ;  Goodbar  v.  Z^aniV/,  88  Ala.  583,  7  So.  254,  16  Am.  St.  76  (18S9)  ; 
Stearns  v.  Edson,  63  Vt.  259,  22  Atl.  420,  25  Am.  St.  758  (1891)  ;  Ronan  v. 
King,  L.  R.  (1S94)  2  Ir.  R.  648;  Stoncbridge  V.  Perkins,  141  N.  Y.  i,  35 
N.  E.  980  (1894)  ;  Long  v.  McKissick,  50  S.  Car.  218,  27  S.  E.  636  (1897)  ; 
Brady  v.  Carteret  Realty  Co.,  67  N.  J.  Eq.  641,  60  Atl.  938,  no  Am.  St.  502 
(1904)  ;  Smith  v.  Kcmether,  24  Del.  572,  76  Atl.  482  (1910)  ;  Kochs  Co.  v. 
Jackson,  156  N.  Car.  326,  72  S.  E.  326  (1911)  ;  Large  v.  Wabash  R.  Co.,  168 
111.  App.  310  (1912);  Spears  v.  Weddington,  146  Ky.  434,  142  S.  W.  679 
(1912)  ;  Irwin  v.  Beggs,  24  Colo.  App.  158,  132  Pac.  385  (1913)  ;  Nelson  v. 
Bock,  84  N.  J.  L.  123,  85  Atl.  1009  (1913)  ;  Groves  v.  Lewis,  .S3  Pa.  Super.  Ct. 
511  (1913)  ;  Hammer  w.  Westphal,  120  Md.  15,  87'^Atl.  488  (1913). 

As  to  whether  equitable  relief  may  be  given  to  the  purchaser  and,  if  so, 
under  what  circumstances,  the  cases  are  conflicting.  Compare  Smith  v. 
Harrison,  26  L.  J.  Ch.  412  (1857)  ;  Kearney  v.  Ryan,  L.  R.  2  Ir.  R.  61  (1878)  ; 
Thompson  v.  Harlan,  I  Dana  (Ky.)  190  (1833)  ;  Rhode  v.  Neff,  I  Woojw. 
(Pa.)  477  (1869)  ;  .'^hnkslpnre_v^Delnny.  86  Pa.  St.  Tn8  (1878)  ;  Henderson  V. 
Overton,  2  Yerg.  (Tenn.)  394,  24  Am.  Dec.  492  (1830)  ;  Boy  kin  v.  Cook, 
61  Ala.  472  (1878)  ;  First  Nat.  Bank  v.  Rogers,  22  Minn.  224  (1875)  ;  Kerr 
V.  Kerr,  81  111.  App.  35  (1898),  v/ith  Weidler  v.  Farmers  Bank,  11  Serg^  R. 
(Pa.)  134  (1824);  Hand  v.  Grant,  18  Miss.  (10  Sm.  &  IM.)  514  (1848); 
yoM«?^  V.  i?nrr,  5  Strob.  (S.  Car.)  147,  53  Am.  Dec.  699  (1850)  ;  Bickley  v. 
Biddle.  ^^  Pa.  St.  276  (1859;) ;  Holmes  v.  Shaver,  78  111.  578  (1875)  ';  Goodbar 
V.  Daniel,  88  Ala.  583,  7  So.  254,  16  Am.  St.  76  (1889)  ;  Pinksfon  v.  Harrell, 
106  Ga.  102,  31  S.  E.  808,  71  Am.  St.  242  (1898)  ;  Dickson  y^McGartncy,  226 
Pa.  552,  ys  Atl.  735  (1910)  ;  Copper  Bell  Min.  CoTof  IV.  Va.  v.  Gleeson, 
14  Ariz.  548,  134  Pac.  285  (1913).  A  doctrine  widely  recognized  is  that  an 
innocent  purchaser  at  a  void  sale  whose  money  has  been  expended  in  dis- 
charging the  judgment  debt  or  paying  liens  may  be  subrogated  to  the  right 
of  the  creditors  paid  as  against  the  execution  debtor.  M'Ghee  v.  Ellis,  4  Litt. 
(Ky.)  244,  14  Am.  Dec.  124  (1823)  ;  Payne  v.  Hathaway,  3  Vt.  212  (1831)  ; 
Lambeth  v.  Elder,  44  Miss.  80  (1870)  ;  Davis  v.  Gaines,  104  U.  S.  386,  26 
L.  ed.  757  (1881)  ;  Swain  v.  Stockton  Savings  Soc,  78  Cal.  600,  21  Pac.  365, 
12  Am.  St.  118  (1889)  ;  Paxton  v.  Sterne,  127  Ind.  289,  26  N.  E.  557  (1890)  ; 
Junior  Order  Building  &  Loan  Assn.  v.  Sharpe,  63  N.  J.  Eq.  500,  52  Atl.  832 
(1902) ;  Hutson  v.  Wood,  263  111.  376,  105  N.  E.  343,  Ann.  Cas.  1915C,  587 
(1914). 


-(>(j  EXECUTION 

PINCKNEY  V.  PINCKNEY 

Supreme  CoupvT  of  Iowa,  1901 

114  I  OK  a  441 

This  is  an  action  between  the  widow  and  the  heirs  at  law  of 
J.  W.  Pinckney,  deceased,  for  the  partition  of  certain  real  estate 
belonging  to  the  estate  of  said  Pinckney.  The  issues  here  arise 
upon  the  claim  of  Sarah  A.  Collie  as  a  purchaser  at  execution  sale 
of  the  interest  of  one  of  the  heirs. 

Waterman,  J.:    J.  W.  Pinckney  died  intestate  on  the  twenty- 
fiftli  day  of  April,  1898,  seised  of  the  real  estate  in  question,  leaving 
surviving  him  his  widov/  and  a  number  of  children,  including  John 
W.  Pinckney,  whose  interest  gives  rise  to  this  controversy.    Some 
years  prior  to  his  death,  J.  W.  Pinckney  had  made  an  advance- 
ment to  tliis  son  of  $1,000,  taking  his  receipt  and  acknowledgment 
therefor.    Afteil  tlie  death  of  the  father,  Sarah  A.  Collie  brought 
suit  by  attachment  against  John  W.  Pinckney,  and  caused  the  writ 
to  be  levied  upon  his  interest  in  the  real  estate  involved  herein. 
Later  she  obtained  judgment,  and  upon  a  sale  under  special  execu- 
tion she  bought  in  said  property.    At  the  time  of  such  levy  and 
sale  Sarah  A.  Collie  had  no  knowledge  that  an  advancement  had 
been  made  to  John  W.   Pinckney,  and  she  now  denies  the  right 
of  the  others  interested  to  have  the  amount  of  the  advancement 
considered  as  a  part  of  his  interest  in  the  estate;  in  other  words, 
she  claims  to  have  taken  under  her  purchase  at  execution  sale  the 
share  which  would  have  gone  to  John  W.  Pinckney  if  no  advance- 
ment had  been  made.    The  trial  court  awarded  her  such  interest 
in  the  property  as  "John  W.  Pinckney  would  have  been  entitled  to 
in  excess  of  the  said  advancement."    The  general  rule  is  that  a 
purchaser  of  an  heir's  interest  takes  subject  to  all  advancements 
made  to  him.    Steele  v.  Frierson,  85  Tenn.  430.    The'  proposition 
stated  also  has  some  support  in  w^hat  is  said  in  the  case  of  Lig'mger 
V.  Field,  78  Wis.  367.    Ordinarily,  the  doctrine  of  caveat  emptor 
applies  to  a  purchaser  at  judicial  sale.   Burns  v.  Hamilton's  Admr., 
70  Am.  Dec.  572,  note;  Jones  v.  Blumenstein,  yy  Iowa  361.  Appel- 
lant claims,  however,  that  her  rights  are  saved  by  section  2925  of 
the  code,  which  is  as  follows :   "No  instrument  affecting  real  estate 
is  of  any  validity  against  subsequent  purchasers  for  a  valuable  con- 
sideration without  notice  unless  recorded  in  the  office  of  the  re- 
corder of  the  county  in  which  the  same  lies,  as  hereinafter  provided." 
A  judgment  creditor  purchasing  at  execution  sale  is  entitled  to  pro- 
tection under  this  section,  at  least  in  the  absence  of  controlling 
equities;  IVeaver  v.  Carpenter,  42  Iowa  343;  Gower  v.  Doheny,  33 
lov.-a  36;  Walker  v.  Elston,  21  Iowa  529.   But  it  is  pertinent  to  ask, 
against  what  is  this  protection  assured?  The  code  provision  says,  in 
effect,  it  is  against  unrecorded  instruments   affecting  real   estate. 
Cearly,  this  receipt  is  not  such  an  instrument.    The  right  of  the 
estate  to  charge  the  advancement  against  the  heir  would  have  been 


PINCKNEY  V.    PINCKNEY  767 

the  same  had  no  receipt  or  acknowledgment  been  given.  It  seems 
clear  that  the  instruments  referred  to  in  this  section  are  those  which 
are  entitled  to  be  recorded,  and  a  receipt  is  not  of  that  class.  When 
the  instrument  is  of  a  kind  that  recording  is  unnecessary,  as  a  cer- 
tificate of  purchase  from  the  United  States,  or  a  transfer  thereof, 
this  section  does  not  apply.  Klein's  Heirs  v.  Argenbright,  26  Iowa 
493;  David  V.  Rickabaugh,  32  Iowa  540;  Harnioti  v.  Clayton,  51 
Iowa  36.  Neither  is  such  a  claim  as  a  widow's  right  to  dower 
affected  by  the  provisions^  of  this  section.  Crusie  v.  Belhnire,  69 
Iowa  397;  Kendall  v.  Kendall,  42  Iowa  464;  Butler  v.  Fitsgeraid, 
43  Nebr.  192,  In  principle  the  claim  to  a  credit  for  the  advance- 
ment is  much  like,  the  right  of  dower.  Appellant  relies  upon  the 
cases  of  Ettenheimer  v.  Northbraves,  75  Iowa  28,  and  Finch  v.  Gar- 
rett, 102  Iowa  381 ;  but,  in  our  opinion,  neither  of  these  decisions 
gives  any  support  to  her  claim.  In  the  first  one  the  equity  against 
which  the  execution  purchaser  was  given  protection  was  founded 
upon  an  unrecorded  mortgage,  and  in  the  other  it  was  found  as  a 
fact  that  the  purchaser  had  notice  of  the  advancement,  but  nothing  is 
said  to  indicate  that  the  holding  of  the  court  would  have  been  dif- 
ferent had  there  been  no  such  notice.  Our  conclusion  is  that  the 
receipt  we  have  here  is  not  an  instrument  affecting  real  estate,  within 
the  meaning  of  section  2925,  and  that  the  general  rule  to  which  we 
have  above  referred  applies.  Under  this  rule  Sarah  A.  Collie,  by  her 
purchase  at  execution  sale,  acquired  only  the  debtor's  actual  interest 
in  tlie  estate,  which  was  his  share  as  heir,  less  the  advancement.  As 
this  was  awarded  her  by  the  trial  court,  its  judgment  will  be 
affirmed.^^ 


^^Where  the  interest  sold  is  subject  to  equities  not  within  the  recording 
acts,  the  purchaser  takes  only  such  interest.  Richardson  v.  Wicker,  74  N.  Car. 
278  (1876)  ;  Morrisnn-X..Fimk,  ?s  Pfi  St  i-^T_.Xi854)  ;  Bnrgin  v.  Bnrgin,  82 
N.  Car.  196  (1880)  ;  Chumasero  v.  Vial,  3  Mont.  376  (1879)  ;  Nugent  v. 
Prichatsch,  61  Miss.  402  (1883);  Parker  v.  Coop,  60  Tex.  in  (1883); 
McKamey  v.  Thorp,  61  Tex.  648  (1884);  Tcnnant  v.  Watson,  58  Ark.  252, 
24  S.  W.  495  (1893)  ;  Clemmons  v.  Cox,  114  Ala.  350,  21  So.  426  (1896)  ; 
Colyar  v.  Capital  City  Bank,  103  Tenn.  J22,  54  S.  W.  977  (1899);  Cote  v. 
Lanqston.  226  Pa.  9.A0,  7=;  Atl.  662  (1910).  Compare  Lance^  v.  Gorman^j.36 
Pa.  St.  ,200,  20  Atl.  792,  20  Am.  St.  914  (1890)  ;  Logan  wTFva,  144^^.  St._3i2, 
22  Atl.  757  (1891)  ;  Creegan  v.  Robertson,  74  Hun  OTTY.)  22,  2{rN.  Y.  S. 
326,  56  N.  Y.  St.  161  (1893)  ;  Maroney  v.  Boyle,  141  N.  Y.  462,  36  N.  E.  511, 
38  Am.  St.  821  (1894).  A  fortiori  as  to  equities  of  which  the  purchaser  has 
actual  or  constnictive  notice.  Parks  v.  Jackson,  11  Wend.  (N.  Y.)  442,  25 
Am.  Dec.  656  (1833)  ;  Hoffman  y.  Strohecker.  7  Watts  (Pa)  86,  32  Am.  Dec. 
740  (1838);  Houghton  v.  Bartliolomezv,  51  Mass.  (10  Mete.)  138  (1845^; 
Reed's  Appeal,  t^  Pn  .^t  ^7^.  rrSgn')  ;  Moyer  v.  Hinman,  13  N.  Y.  180  (1855)  ; 
Pash  V.  Ravesies,  32  Ala.  451  (i8s8)  ;  Qihson  v.  Winslow.  46  Pa.  St.  .^80. 
84  Am.  Dec.  552  (1863);  Blue  y.  Blue,  38  111.  g,  87  Am.  Dec.  267  (1865)  ; 
Byers  v.  Wackmam,  16  Ohio  St.  441  (1866)  ;  Myers  y.  Leas,  loi  Pa.  St.  172 
(1882);  §ill  V.  Sinjack hammer,  103  Pa.  St.  7  (188.^)  :  Anglesey  v.  Colnnn. 
44  N.  J.  Lq.  203,  9  Atl.  105,  14  Atl.  627  (1888)  ;  Miller  v.  Baker,  166  Pa.  St. 
414,  31  Atl.  121,  45  Am.  St.  680  (1895)  ;  Gcishakcr  v.  Fancoast,  57  N.J.  Eq.  60, 
40  Atl.  200  (1898)  ;  May  v.  Cleland,  117  Mich.  45,  75  N.  W.  129,  44  L.  R.  A. 
163  (1898)  ;  Morgan  v.  Turner,  35  Misc.  399,  71  N.  Y.  S.  996  (1901)  ;  Luke  v. 
Smith,  13  Ariz.  155,  io8  Pac.  494  (1910)  ;  Tate  v.  Sanders,  245  Mo.  186.  149 
S.  W.  485  (1912). 


^68  EXKCUTION 

FOORMAX  1'.  WAT J.ACE 

Supreme  Court  oi'  California,  1885 
75  Col.  552™ 

Searls,  C.  J. :  The  question  involved  in  this  appeal  may  be 
stated  thus :  A  brings  an  action  against  B,  sues  out  and  levies  an 
attacimient  upon  the  land  of  the  latter,  obtains  a  judgment  upon 
which  an  execution  issues,  and  the  land  in  question  is  sold.  A,  the 
judgment  creditor,  becomes  the  purchaser,  receives  a  sheriff's  cer- 
tificate of  sale,  which  is  filed  and  recorded,  and  in  due  time  receives 
a  sheriffs  deed  of  the  premises.  B,  the  judgment  debtor,  had  con- 
veyed the  land  before  suit  brought  by  a  deed  which  was  not  recorded, 
and  of  which  A  had  no  notice  until  after  his  receipt  and  record 
of  the  certificate  of  sale,  but  which  was  duly  recorded  before  the 
sherifil's  deed  issued.  If,  upon  these  facts,  the  title  of  A  under  his 
sheriff's  deed  is  paramount  to  that  of  B,  under  his  deed  recorded 
after  the  sale  and  recordation  of  the  certificate,  and  before  the 
sherift''s  deed  was  recorded,  then  the  judgment  and  order  appealed 
from  should  be  affirmed ;  otherwise  a  reversal  should  be  had. 

In  other  words,  is  the  interest  acquired  by  a  purchaser  of  real 
estate  at  a  sheriff's  sale,  whose  certificate  of  sale  is  properly  re- 
corded, destroyed  by  the  production  of  a  deed  from  the  judgment 
debtor,  executed  anterior  to  the  sale,  but  not  recorded  until  after 
the  record  of  the  certificate  of  sale,  and  just  prior  to  the  expiration 
of  the  time  for  redemption? 

Appellant  answers  this  question  in  the  affirmative,  and  further 
contends  tliat  respondent,  having  purchased  the  land  at  a  sale  under 
his  own  judgment,  and  having  merely  credited  the  net  proceeds  of 
tlie  sale  upon  such  judgment,  is  not  a  bona  fide  purchaser  for  a 
valuable  consideration. 

It  has  often  been  held  in  this  state  that  a  conveyance  in  con- 
sideration of  the  cancellation  of  a  pre-existing  indebtedness  is  a 
conveyance  for  a  valuable  consideration  w'ithin  the  meaning  of  sec- 
tion 1214  of  the  Civil  Code.  Gasscn  v.  Hendrick,  74  Cal.  444; 
Frey  v.  Clifford,  44  Cal.  335;  Schl liter  v.  Harvey,  65  Cal.  158. 
A  like  doctrine  prevailed  under  the  recording  act  in  force  prior  to 
the  code.  Hunter  v.  Watson,  12  Cal.  377,  73  Am.  Dec.  543,  where 
it  was  said:  "A  judgment  creditor,  purchasing  at  his  own  sale  with- 
out notice,  is  a  bona  fide  purchaser  within  the  act." 

It  follows  from  these  decisions  and  the  findings,  that  respondent 
stands  in  the  position  of  an  innocent  purchaser  for  a  valuable  con- 
sideration, without  notice  at  the  date  of  his  purchase,  in  the  same 
manner  and  to  the  same  extent  as  an  innocent  third  party  would 
do,  who  had  purchased  and  paid  his  money ,°" 

Judgment  affirmed. 


''"The  statement  of  facts  and  part  of  the  opinion  of  the  court  are  omitted. 

*"A  bona  fide  purchaser  at  a  sale  on  execution  without  notice  is  within 
the  protection  of  the  recording  acts.  Irvine  v.  Cam f>helL  4>liinn.  (Pa.')  118 
(1813)  ;  Pendleton  v.  Button,  3  Conn.  406  (1820)  ;  Den  ex  dem.  Sam'l  J.  Head 


BRIGHAM    V.    DOVER  769 

BIGHAM  V.  DOVER 

Supreme  Court  of  Arkansas,  1908 
86  Ark.  323 

Appellee  bought  a  saddle  for  $12  at  a  sale  under  the  following 
execution : 

"County  of  Pope,  Township  of  White. 

"The  State  of  Arkansas  to  any  constable  of  Polk  county:  You 
are  hereby  commanded  that  of  the  goods  and  chattels  of  E.  T.  Big- 
ham  you  cause  to  be  made  the  sum  of  nine  dollars  ($9)  which  W,  W. 
Cranford  late  before  me,  a  justice  of  the  peace  for  said  county,  re- 
covered against  him  for  his  costs  in  a  replevin  suit,  and  also  costs  in 
a  suit  wherein  S.  S.  Crockett  was  plaintiff  and  W.  W.  Cranford  and 
E.  T.  Bigham  were  defendants,  and  that  you  have  said  sum  of 
money  within  thirty  days  to  render  to  said  W.  W.  Cranford  for  his 
costs  aforesaid. 

"Witness  my  hand  as  such  justice  this  the  i6th  day  of  September, 
1906. 

"B.  F.  McMillan,  J.  P." 

The  sale  was  regular. 

The  execution  was  based  on  two  judgments  against  appellant  in 
the  justice  court,  aggregating  the  sum  of  $9  with  costs.  The  judg- 
ments were  in  favor  of  different  parties.  The  judgments  were  valid. 
Appellants,  claiming  that  the  execution  was  void,  and  that  the  sale 
thereunder  was  void,  brought  replevin  against  appellee  for  the  sad- 

V.  Richnian,  13  N.  J.  L.  43  (1832)  ;  Jackson  ex  dem.  Merrick  v.  Post,  15  Wend. 
(N.  Y.)  588  (1836)  ;  Scribncr  v.  Lockwood,  9  Ohio  184  (1839)  ;  Stewart  v. 
Freeman.  22  Pa.  St.  120  CiS^-^)  ;  Blankenship  v.  Douglas,  26  Tex.  225  X 18627  ; 
Hetzcl  V.  Barber,  69  N.  Y.  i  (1877)  ;  Mansfield  v.  Gregory,  8  Nebr.  432,  i 
N.  W.  382  (1879);  Lee  v.  Bermingham,  30  Kans.  312,  i  Pac.  yz  (1883); 
McCandless  v.  Inland  Acid  Co.,  108  Ga.  618,  34  S.  E.  142  (1899)  ;  Johnson  v. 
Equitable  Securities  Co.,  114  Ga.  604,  40  S.  E.  787,  56  L.  R.  A.  933  (1901). 
See  Hughes  v.  Williams,  218  Mass.  448,  105  N.  E.  1056  (1914).  As  in  the 
principal  case,  some  courts  have  held  that  the  execution  creditor  purchasing 
at  the  sale  is  protected  by  the  recording  acts  in  the  same  manner  as  a  stranger. 
Wood  V.  Chapin,  13  N.  Y.  509,  67  Am.  Dec.  62  (1856)  ;  Htmter  v.  Watson, 
12  Cal.  363,  72  Am.  Dec.  543  (1859);  Evans  v.  McGlasson,  18  Iowa  150 
(1864)  ;  Butter  field  v.  Walsh,  21  Iowa  97,  89  Am.  Dec.  557  (1866)  ;  Woodzvard 
V.  Sartwell,  129  Mass.  210  (1880);  Vance  v.  Corrigan,  78  Mo.  94  (1883); 
Columbus  B.  Co.  v.  Graves,  108  111.  459  (1884)  ;  Riley  v.  Martinelli,  97  Cal. 
575,  22  Pac.  579,  21  L.  R.  A.  zi,  33  Am.  St.  209  (1893);  Sternberger  & 
Willard  V.  Ragland,  57  OTTio  St.  148,  48  N.  E.  811  (1897)  ;  Pngh  v.  Highley, 
152  Ind.  252,  53  N.  E.  171,  44  L.  R.  A.  392,  71  Am.  St.  327  (1898)  ;  Rouse  v. 
Caton,  168  Mo.  288,  67  S.  W.  578,  90  Am.  St.  4^6  (1901).  Contra:  Ayres  v. 
Duprey,  27  Tex.  593,  86  Am.  Dec.  657  (1864)  ;  Tennant  v.  Watson,  58  Ark. 
252,  24  S.  W.  495  (1893)  ;  Murphy  v.  Plankington,  13  S.  Dak.  501,  83  N.  W. 
575  (1900);  Hacker  v.  White,  22  Wash.  415,  60  Pac.  11 14,  79  Am.  St.  945 
(1900)  ;  Morris  y  Ziegler,  71  Pa.  St.  4=;o  (1872')  semble ;  American  S.  Bank 
V.  Helgesen,  b7  Wash.  572,  122  Pac.  26  (1912)  ;  Euke  v.  Smith,  227  U.  S.  379, 
57  L.  ed.  558  (1913).  See  24  A.  &  E.  Encyc.  of  Law  (2d  ed.)  129;  17  Cyc. 
1304. 

49 — Civ.  Proc. 


--0  F.XKCrTION 

die.  The  cause  was  tried  by  the  court  sitting  as  a  jury,  and  the 
above  appear  as  the  luuHsputcd  facts. 

The  court  found  that  the  sale  was  valid,  and  that  the  title  to 
the  saddle:  was  in  appellee,  but  that  appellant  was  entitled  to  the 
dittcrcnce  between  $12,  the  amount  for  which  the  saddle  was  sold, 
and  i?5.50,  the  amount  of  the  Cranford  judgment,  and  rendered 
judgment  accordingly.   The  appellant  duly  ])rosecutcs  this  appeal. 

Wood,  J. :  There  is  no  law  or  rule  of  practice  that  authorizes 
a  single  execution  for  the  amounts  of  two  separate  and  distinct 
judgments.  17  Cyc.  932,  A  joint  execution  upon  two  separate 
judgments  is  not  voidable  merely,  but  void.  Merchie  v.  Gaines,  5  B. 
Monroe  (Ky.)  126;  Doc  v.  Rue,  4  Blackf.  (Ind.)  263.  Such  an  ex- 
ecution is  defective,  not  in  form  merely,  but  also  in  substance,  and 
is  therefore  not  susceptible  of  amendment.  See  Blanks  v.  Rector, 
24  Ark.  496;  fliglifozi'cr  v.  Handlin,  27  Ark.  20;  Hall  v.  Doyle,  35 
Ark.  445 ;  Jctt  v.  Sliinn,  47  Ark.  373 ;  and  Downs  v.  Dennis,  83  Ark. 
71,  as  to  executions  that  may  or  may  not  be  amended.  An  execu- 
tion based  on  a  valid  judgment,  but  which  contains  an  excessive 
amount  only,  may,  according  to  some  decisions,  be  amended.  Hunt 
V.  Loucks,  38  Cal.  372;  Bogle  v.  Bloom,  36  Kan.  512;  Otis  v.  Nash, 
26  Wash.  39.  But  this  is  not  that  case.  The  ruling  of  the  court 
eliminating  the  amount  of  one  of  the  judgments  did  not  cure  the 
error  of  taking  and  selling  appellant's  property  under  process  that 
was  absolutely  void.  Such  error  was  prejudicial,  and  could  not  be 
cured  by  amendment.  Appellee  acquired  no  title  by  his  purchase 
at  a  sale  under  the  void  execution.^^ 

The  judgment  is  therefore  reversed,  and  the  cause  is  remanded 
for  new  trial. 

Hill,  C.  J.,  and  McCulloch,  J.,  dissent. 


"A  sale  upon  a  void  judgment  or  execution  confers  no  title.  Armstrong 
V.  Jackson,  ex  dcm.  Elliott,  i  Blackf.  (Ind.)  210,  12  Am.  Dec.  225  (1822)  ; 
Byhee  v.  Ashby,  7  111.  (2  Gilm.)  151,  43  Am.  Dec.  47  (1845)  ;  Kennedy  v. 
Duncklee,  67  Alass.  (i  Gray)  65  (1854);  Den  ex  dcm.  Todd  v.  Philhower, 
24  N.  J.  L.  796  (1854)  ;  Gray  v.  Hawcs,  8  Cal.  562  (1857)  ;  Silvan  v.  Coffee, 
20  Tex.  4,  70  Am.  Dec.  371  (1857)  ;  Marsh  v.  Sherman,  12  Ind.  358  (1859)  ; 
Farnliam  V.  Hildreth,  32  Barb.  (N.  Y.)  277  (i860)  ;  French  v.  Edzvards,  80 
U.  S.  506,  20  L.  ed.  702  (1871)  ;  Sheetzjw^Wynlzoop.  74  Pa.  St.  iq8  (1873)  ; 
Caiily  V.  Blue,  62  Ala.  77  (1878);  Siotsenbiirg  v.  Stotscnbnrg,  75  Ind.  538 
(1881)  ;  Sidivell  v.  Schumacher,  99  111.  426  (1881)  ;  McCracken  v.  Flanagan, 
141  N.  Y.  174,  36  N.  E.  10  (1894)  ;  Tenan  v.  Cain.  188  Pa^^  St.  2A2.  ^i  Atl.  594 
(1898)  ;  McCauley  v.  IVilUams,  122  N.  Car.  293,  30  S.  E.  345  (1898)  ;  First 
Nat.  Bank  v.  Gibson,  60  Nebr.  767,  84  N.  W.  259  ( 1900)  ;  Kountz  v.  National 
Transit  Co.,  197  Pa.  398,  47  Atl.  350  (1900)  ;  Schott  v.  Linscott,  80  Kans. 
536,  103  Pac.  997  (1909)  -jlinrhnnn  v  Hrfflefinnpr^  ^7  Pa.  Suner.  Ct.  T  (19II). 
But  mere  irregularities  in  the  proceedings  before  sale  will  not  impair  the 
title  of  a  bona  fide  purchaser.  Such  errors  must  be  corrected  by  direct  pro- 
ceedings and  can  not  be  made  the  basis  of  a  collateral  attack  on  the  title  of 
the  purchaser.  3  Freeman  on  Executions  (3d  ed.),  §  339;  Jackson  v.  Bartlett, 
8  Johns.  (N.  Y.)  361  (1811)  ;  Jackson  ex  dem.  Carman  v.  Rosevelt,  13  Johns. 
(N.  Y.)  97  (1816)  ;  Jackson  ex  dem.  Randall  v.  Davis,  18  Johns.  (N.  Y.)  7 
(1820)  ;  Den  ex  dem.  Flomerfell  v.  Zcllers,  7  N.  J.  L.  153  (1824)  ;  SmuU-il- 
Mickley,  i  Rav.'le  (Pa.)  05  (1828):  Richardson  v.  Kimball,  28  Maine  463 
jy^U^r^^rfhirt^.  Darling,  4  Cush.  (Mass.)  197  (1894)  ;  Schaffer  v.  Bolander.  4 
Greene  (Iowa)  201  (1853)  ;  Osgood  v.  Blackmore,  59  111.  261  (1871)  ;  Lenox  v. 
Clarke,  32  Mo.  115  (1873)  ;  Otmstead  v.  Kellogg,  47  Iowa  460  (1877)  ;  Elliott 


WILLIAMS   V.    GALLIEN  77I 

WILLIAMS  V.  GALLIEN 

Supreme  Court  of  Louisiana,  1841 

I  Roh.  {La.)  94 

The  plaintiff  filed  a  petition  in  the  District  Court  for  the  Parish 
of  Natchitoches,  praying  that  a  monition  might  be  issued,  and  his 
title  be  confirmed  to  a  tract  of  land  purchased  by  him  at  a  sheriff's 
sale  under  execution  against  the  defendant ;  the  homologation  of  the 
sale  was  opposed  by  the  latter.  The  sale  was  confirmed,!  and  the 
defendant  ordered  to  pay  the  costs  of  his  opposition,  Carr,  J.,  pre- 
siding. 

Martin,  J. :  The  defendant  is  appellant  from  a  Judgment  ho- 
mologating the  sale  of  a  tract  of  land  of  his,  adjudicated  by  the 
sheriff  to  the  plaintiff.  The  hom.ologation,  on  the  monition,  was  re- 
sisted on  the  ground  of  gross  misconduct  in  the  sheriff,  who  pro- 
ceeded to  the  sale  of  the  property  levied  on,  after  the  defendant  had 
paid  the  amount  of  the  judgment  to  the  plaintiff  in  the  executiton, 
notwithstanding  the  repeated  directions  of  the  attorney  of  said  plain- 
tiff to  forbear  to  sell  the  property,  and  ordering  the  execution  to  be 
returned.  The  defendant  supported  his  allegation  by  the  testimony 
of  Sherburne,  the  attorney  of  the  plaintiff  in  the  execution.  This 
gentleman  deposed  that  he  received  from  the  present  defendant, 
then  also  the  defendant  in  the  execution,  a  draft,  and  agreed  that  all 
proceedings  on  the  fieri  facias  should  be  suspended  until  it  could  be 
known  whether  the  draft  would  be  accepted;  and  that  afterwards 
on  learning  that  the  draft  had  been  accepted,  he  directed  the  sheriff 
to  return  the  execution;  that  the  draft  was  a  satisfaction  of  prin- 
cipal and  interest  of  judgment,  and  that  he  considered  it  as  settled; 
that  the  sale  was  made  without  his  knowledge,  and  that  he  ordered 
the  sheriff  several  times  before  the  sale,  and  once  upon  seeing  the 
advertisement  of  sale,  to  return  the  execution,  and  not  sell  the  land. 
The  draft  was  given  him  by  Gallien,  then  and  now  defendant,  one 
month  before  the  sale,  which  was  postponed  several  times.  The 
costs  of  suit  were  not  included  in  the  draft.    On  the  part  of  the 

V.  Hart,  45  Mich.  234,  7  N.  W.  812  (1881)  ;  Hiidepohl  v.  Liberty  Hill  Water 
Co.,  94  Cal.  588,  29  Pac.  1025,  28  Am.  St.  149  (1892)  ;  Hoffmati  v.  Biischman, 
95  Mich.  538,  55  N.  W.  458  (1893)  ;  Conley  v.  Redwine,  109  Ga.  640,  35  S.  E. 
92,  77  Am.  St.  398  (1899)  ;  Berry  v.  Gates,  175  Mass.  2>'72>,  56  N.  E.  581  (1900)  ; 
Clouqh  Y^'V elsh, _22g  Pa.  386.  78  Atl.  loon  CtqttV  A  judgment  creditor, 
if  the  purcliaser,  is,  according  to  some  authorities,  chargeable  with  notice  of 
irregularities.  Piel  v.  Brayer,  30  Ind.  332,  95  Am.  Dec.  699  (1868)  ;  Smith  v. 
Huntoon,  134  111.  24,  24  N.  E.  971,  22,  Am.  St.  646  (1890).  Hence  where  after 
a  sale  to  him  the  judgment  is  reversed,  he  may  be  compelled  to  restore  the 
property.  Goodyere  v.  Ince,  Cro.  Jac.  246  (1610)  ;  Reynolds  v.  Harris,  14  Cal. 
667,  76  Am.  Dec.  459  (i860)  ;  Galpin  v.  Page,  85  U.  S.  350,  21  L.  ed.  959 
(1873)  ;  Stroud  v.  Casey,  25  Tex.  740,  78  Am.  Dec.  556  (i860)  ;  Stoeckel  v. 
Russell,  6  Houst.  (Del.)  32  (1880)  ;  Purser  v.  Cady,  120  Cal.  214,  52  Pac.  489 
(1898)  ;  Winterson  v.  Hitchings,  10  Misc.  396,  31  N.  Y.  S.  127,  63  N.  Y.  St. 
^ti  (1894).  Contra:  Yociiin  v.  Foreman,  14  Bush.  (Ky.)  494  (1879).  Cf. 
Cavanaugh  v.  Wilson,  108  Ky.  759    '-.7  S.  W.  620,  22  Ky.  L.  474  (1900). 


-J  ■72  F.XF.CUTION 

plaintiil  and  appellee,  it  is  urged  liiat  the  sheriff  correctly  proceeded 
to  the  sale  under  the  execution,  because  tlie  judgment  was  not  en- 
tirely satisfied,  the  draft  not  being  sufficient  to  cover  tlie  whole 
judgment,  as  after  its  payment  the  costs  remained  unsatisfied;  that 
the  inn-chascr  at  the  sherilT's  sale  can  not  be  affected  by  the  neglect 
of  the  sheriff  to  attend  to  the  direction  of  the  plaintiff's  attorney, 
whose  instructions  to  the  sheriff  were  not  known  to  the  defendant; 
and  that  plaintilY  had  no  right  to  prevent  the  sale  of  property  seized, 
so  as  to  deprive  the  oflicers  of  the  court  of  the  means  of  collecting 
their  fees.  It  appears  to  us  the  district  court  erred.  It  is  true, 
that  if  a  defendant  against  whom  judgment  be  obtained  does  not 
procure  a  suspensive  appeal,  and  the  judgment  is  afterwards  re- 
versed, the  purchaser  of  his  property  on  a  sale  under  execution, 
before  the  reversal  of  the  judgment,  will  be  maintained  in  his  pur- 
chase; but  it  does  not  follow  from  thence,  that  the  sale  of  a  defend- 
ant's property,  after  he  has  satisfied  the  judgment,  would  avail  the 
purchaser.  The  whole  judgment,  including  the  costs,  is  the  prop- 
erty of  the  plaintiff,  who  we  suppose  to  have  advanced  them  or  who 
is  chargeable  therewith  ;  the  judgment  being  that  he  recover  his  debt 
and  costs.*'-  Code  of  Pr.,  Art.  548,  et  seq.  The  testimony  of  Sher- 
burne is  uncontradicted,  and  leaves  no  doubt  of  his  having  given 
repeated  instructions  to  the  sheriff  to  forbear  selling  the  defendant's 
property,  even  after  he  had  seen  the  sheriff's  advertisement  for  the 
sale.  The  plaintiff  purchased  for  seventy  dollars  six  hundred  and 
forty  acres  of  land,  which  are  alleged  to  be  worth  several  thousand 
dollars,  and  were  appraised  at  fifteen  thousand,  giving  a  twelve 
montiis'  bond. 

It  is,  therefore,  ordered  that  the  judgment  of  the  District  Court 
be  reversed,  and  that  the  sale  of  tlie  defendant's  property  by  the 
sheriff  to  the  plaintiff  be  set  aside  and  annulled,  and  that  the  latter 
pay  costs  in  bodi  courts.*^^ 


*^In  Jackson  ex  don.  Anderson  v.  Anderson,  4  Wend.  (N.  Y.)  474  (1830), 
it  is  said  per  Sutherland,  J.:  "The  sheriff  had  no  right  to  sell,  for  the  pur- 
pose of  collecting  his  fees,  after  due  notice  of  the  settlement  and  discharge 
of  the  judgment.  The  sheriff  has  no  interest  in  the  judgment,  which  will 
authorize  him  to  interfere  with  or  control  any  settlement  or  arrangement 
which  the  parties  may  think  proper  to  make.  His  fees  are  no  part  of  the 
judgment.  They  are  but  an  incident  to  it;  and  if  the  judgment  itself  is 
satisfied  or  discharged,  he  must  look  to  the  plaintiff  and  his  attorney  for  his 
fees.  He  can  not  collect  tiiem  from  the  defendant  by  a  sale  of  the  property." 
Accord:  Craft  v.  Merrill,  14  N.  Y.  456  (1856).  Compare  Slater  v.  Alston, 
103  Ala.  605,  15  So.  944,  49  Am.  St.  55  (1893). 

^In  a  majority  of  jurisdictions  a  sale  under  a  judgment  that  has  been 
paid  or  satisfied  prior  to  the  execution  is  void  and  passes  no  title  even  to  a 
bona  fide  purchaser  without  notice  of  the  payment.  Wood  v.  Calvin,  2  Hill 
(N.  Y.)  566,  38  Am.  Dec.  598  (1842)  ;  Kennedy  v.  Dnncklee,  67  Mass.  (i  Gray) 
65  (1854).  In  the  latter  case  it  is  said  per  Metcalf,  J.:  "We  have  seen  a  few 
cases,  in  which  it  was  held  that  though  the  judgment  creditor,  or  a  third 
person  having  notice,  can  not  hold  property  set  off  or  purchased  on  a  satisfied 
execution,  or  on  an  execution  issued  on  a  satisfied  judgment,  yet  that  it  is 
Otherwise  in  the  case  of  a  purchaser  without  notice.  But,  in  our  judgment, 
there  is  no  legal  ground  for  this  distinction.  A  purchaser  of  stolen  goods, 
whether  he  had  notice  of  the  theft  or  not,  must  surrender  them  to  the  owner  ; 
because  the  seller  had  no  title  and  could  convey  none.    And  as  we  hold  such 


AUDITA    QUERELA  773 

SECTION  9.    AUDITA  QUERELA 

3  Blackstonc's  Commentaries  406 

An  audita  querela  is  where  a  defendant,  against  whom  judg- 
ment is  recovered,  and  who  is  therefore  in  danger  of  execution,  or 
perhaps  actually  in  execution,  may  be  relieved  upon  good  matter  of 
discharge,  which  has  happened  since  the  judgment;  as  if  the  plain- 
tiff hath  given  him  a  general  release;  or  if  the  defendant  hath  paid 
the  debt  to  the  plaintiff  without  procuring  satisfaction  to  be  entered 
on  the  record.  In  these  and  the  like  cases,  wherein  the  defendant 
hath  good  matter  to  plead,  but  hath  had  no  opportunity  of  pleading 
it  (either  at  the  beginning  of  the  suit,  or  puis  darrein  continuance, 
which,  as  was  shown  in  a  former  chapter,  must  always  be  before 
judgment),  an  audita  querela  lies,  in  the  nature  of  a  bill  in  equity, 

an  execution  as  above  mentioned  to  be  void,  we  must  also  hold,  with  Mr. 
Justice  Butler  (i  Rich.  (S.  Car.)  21)  that  'no  conveyance  can  be  good,  which 
rests  upon  that  which  is  null  and  void.'  "  Accord :  Hammat  v.  IVyman,  g  Mass. 
138  (1812)  ;  King  v.  Goodwin,  16  Mass.  63  (1819)  ;  Jackson  ex  dent.  Clark  v. 
Morse,  18  Johns.  (N.  Y.)  441,  9  Am.  Dec.  225  (1821)  ;  Bates  v.  Pilling,  6  B.  & 
C.  38  (1826)  ;  9  Dis.  R.  44;  5  L.  J.  (O.  S.)  K.  B.  40;  Jackson  ex  dem.  Ander- 
son V.  Anderson,  4  Wend.  (N.  Y.)  474  (1830)  ;  Swan  v.  Saddlemire,  8  Wend. 
(N.  Y.)  676  (1832);  Hunter  v.  Stc-venson,  i  Hill  (S.  Car.)  415  (1833); 
Cameron  v.  Irwin,  5  Hill  (N.  Y.)  272  (1843)  ;  Thrower  v.  Vaughan,  i  Rich.  L 
(S.  Car.)  18  (1844);  Mouchat  v.  Brozvn,  3  Rich.  L.  (S.  Car.)  117  (1846) 
Neilson  v.  Neilson,  5  Barb.  (N.  Y.)  565  (1849);  Den  ex  dem.  Miirrell  v, 
Roberts,  11  Ired.  (N.  Car.)  2>2>,  424,  53  Am.  Dec.  419  (1850)  ;  Craft  v.  Merrill 
14  N.  Y.  456  (1856)  ;  State  v.  Salyers,  19  Ind.  432  (1862)  ;  Weston  v.  Clark 
37  Mo.  568  (1866) ;  Lee  v.  Rogers,  2  Sawyer  549,  Fed.  Cas.  No.  8201  (1874) 
Splahn  V  Gillespie,  48  Ind.  397  (1874)  ;  Finley  v.  Cant,  8  Baxt.  (Tenn.)  148 
(1874)  ;  State  v.  Prime,  54  Ind.  450  (1876)  ;  Frost  v.  Yonkers  Sav.  Bank,  70 
N.  Y.  553,  26  Am.  Rep.  627  (1877);  Huff  v.  Morton,  83  Mo.  399  (1884); 
Chapin  v.  McLaren,  105  Ind.  563,  5  N.  E.  688  (1885)  ;  Shaffer  v.  McCrakin,  90 
Iowa  578,  58  N.  W.  910,  48  Am.  St.  465  (1894)  ;  O'Brien  v.  Allen,  42  Wash. 
393,  85  Pac.  8  (1906).  Contra:  Lcgard  v.  Daly,  1  Ves.  Sr.  192  (1748)  semble; 
Smtmisjv,  Alexander,  3  Yentps  CPp.')  268  (1801)  ;  Boren  v.  McGehee,  6  Port. 
(Ala.)  432,  31  Am.  Dec.  695  (1837)  ;  _Gz&&iJV_jy^^//ji;^_7_  W'atts  (Pa.X  305 
(1838)  ;  Doe  ex  dem.  Van  Camp  en  v.  Snyder,  3  How.  (Miss.)  66,  32  Am.  Dec. 
311  (183S)  ;  Bishop  V.  Gregory,  5  B.  Mon.  (Ky.)  359,  27  Ky.  L.  478,  85  S.  W. 
1 197  (1845):  Dean  v.  Connelly,  6  Pa.  St  239  (1847)  ;  Morton  v.  Grenada 
Male  &  Female  Academies,  8  Sm.  &  M.  (Miss.)  773  (1847)  semble;  Warners. 
Blakeman,  36  Barb.  (N.  Y.)  501  (1862)  ;  Nichols  v.  Dissler,  31  N.  J.  L.  461, 
86  Am.  Dec.  219  (1863) ;  Wolticn  v.  O'Malley,  12  Lane.  Bar  (Pa.)_  6  (1880)  ; 
.^(j,lf.p.dflrx  V   CrmiM,  19/]  Pa"  .S^  2^  t6  Atl.  807  (iSSgY;  Slater  v.  Alston,  103 


^. 


Ala.  605,  15  So.  944,  49  Am.  St.  55(1893). 

In  Hoffman  v.  Strohecker.  7  Watts  (Pa.)  86,  32  Am.  Dec.  740  (1838),  it 
is  said  per  Rogers,  J. :  "In  Swan  v.  Saddlemire,  8  Wend.  (N.  Y.)  676,  it  is 
ruled  that  an  execution  upon  a  judgment,  which  has  been  paid  and  satisfied, 
is  absolutely  void,  and  not  merely  voidable,  and  a  purchaser  imder  such 
execution  acquires  no  title.  If  it  is  intended  to  say  that  a  purchaser  without 
notice  acquires  no  title,  I  should  adopt  the  principle  with  great  hesitation, 
and  should  be  much  inclined  to  doubt  the  policy  of  establishing  such  a  rule. 
It  would  not  be  for  the  plaintiff  and  defendant,  imder  such  circumstances, 
to  complain,  as  the  injury  would  result  from  their  own  fraud  or  negligence,  in 
not  causing  satisfaction  to  be  entered  on  the  judgment.  It  would  be  imposing 
upon  a  purchaser  at  sheriff's  sale  the  necessity  of  ascertaining  whether  the 
debt  had  been  paid.  He  has  a  right  to  purchase  on  the  faith  of  the  records 
of  the  court  which  import  verity."  See  u.\so ^ibsqn  V.  Winslow,  38  Pa.  St.  4Q 
(1S60);  Capital  Bank  of  Topeka  v.  Huntoon,  35  Kans.  577,  II  Pac.  369 
(1886)  ;  Kezar  v.  Elkins,  52  Vt.  119  (1879). 


774  EXF.CL'TION 

to  be  relieved  ng;ainst  the  oppression  of  the  i^ainli ff.  It  is  a  Avrit 
dircctetl  to  tlic  court  staling  that  the  complaint  of  the  defendant 
hath  been  heard,  audita  querela  defendcntis,  and  then,  setting  out 
the  matter  of  the  complaint,  it  at  length  enjoins  the  court  to  call  the 
parties  before  them,  and,  having  heard  their  allegations  and  proofs, 
to  cause  justice  to  be  done  between  them.  It  also  lies  for  bail,  v^hen 
judgment  is  obtained  against  them  by  scire  facias  to  answer  the  debt 
of  their  principal,  and  it  hai'>pcns  afterwards  that  the  original  judg- 
ment against  their  principal  is  reversed ;  for  here  the  bail,  after  judg- 
ment had  against  them,  have  no  opportunity  to  plead  this  special 
matter,  and  therefore  they  shall  have  redress  by  audita  querela; 
which  is  a  writ  of  a  most  remedial  nature,  arid  seems  to  have  been 
invented  lest  in  any  case  there  should  be  an  oppressive  defect  of 
justice,  where  a  party  who  hath  a  good  defense  is  too  late  to  make 
it  in  the  ordinary  forms  of  law.  But  the  indulgence  now  shown  by 
the  courts  in  granting  a  summary  relief  upon  a  motion,  in  cases  of 
such  evident  oppression,  has  almost  rendered  useless  the  writ  of 
audita  querela,  and  has  driven  it  quite  out  of  practice.®^* 

^^Turner  v.  Davics,  2  William's  Saunders,  137  (1670),  and  notes.  In 
Sutton  V.  Bishop,  4  Burr.  2283  (1769),  audita  querela  is  referred  to  by  the 
court  as  an  old  legal  remedy  long  disused  and  expensive,  but  in  Baker  v. 
Ridgzvay,  2  Bing.  41  (1824),  it  is  said  by  Best,  C.  J.,  that  audita  querela 
is  neither  a  difficult  nor  an  obsolete  proceeding,  and  in  Simons  v.  Blake,  4 
Dowl.  263  (1S35),  it  was  held  that  the  court  would  relieve  on  summary 
motion  if  the  case  was  clear  but  not  otherwise.  In  England,  the  rules  of  the 
Supreme  Court  now  provide.  Order  XLII,  rule  27:  "No  proceeding  by  audita 
querela  shall  hereafter  be  used;  but  any  party  against  whom  judgment  has 
been  given  may  apply  to  the  court  or  a  judge  for  a  stay  of  execution  or 
other  relief  against  such  judgment,  upon  the  ground  of  facts  which  have 
arisen  too  late  to  be  pleaded;  and  the  court  or  judge  may  give  such  relief 
and  upon  such  terms  as  may  be  just." 

In  Pennsylvania  thc  writ  is  nol^obsplete,  as  was  at  one  time  supposed, 
and  it  has  been  occasionally  resorted  to.  Sdiot^t  v^AleJiarlmidj^jJEhJl^^JJ'a.)  53 
(1850)  ;  Daly  v.  Derringer,  i  Phila.  (Pa.)  324  (1852)  ;  Keen  v.  Vm^lJMh^^S^PS:. 
477  (1865)  ;  Rmerv'vTPaifon,  Q^PhUaZTPa.)  125  ( i87s)';'Gordonier  v  Billings, 
77JPa._SJ-4e^(i875)  semhlc:  IJ'illinjnx  v.  Butcher,  i  \VJsr:  C.'304,  7Xeg.  Gaz. 
129  (1874);  McLean  v^  /)/;;.''/.  _v,  114  i':i.  ."-^1.  >.'),  X  All.  i  (1886)  semble.  In 
Co r,t monweaUh  wJJJerriQ]-^i^  iihiL-;.  (i^;.^  237  (1J71;,  it  is  .said  per  Paxson,  J.: 
"It  IS  too  Tate  to  question  the  right  to  issue  such  writ  in  a  case  where  the 
defendant  has  a  defense  wdiich  he  has  had  no  day  in  court  to  plead.  But 
every  relief  that  could  be  obtained  by  mtdita  querela  is  now  grantable  on 
motion.  The  latter  more  simple  and  speedy  form  of  proceeding  has  driven 
this  ancient  and  cumbrous  remedy  out  of  general  practice." 

The  writ  issues  out  of  the  court  in  which  the  judgment  was  entered, 
only  upon  petition  and  special  allowance  by  the  court.  Waddington  v. 
Vredenbergh,  2  Johns.  Cas.  227  (1801)  ;  Dearie  v.  Ker,  7  D.  &  L.  231,  18  L.  J. 
Ex.  448  (1849)  ;  Troup  v.  Ricardo,  33  Beav.  122  (1863)  ;  Newhart  v.  Wolfe, 
l02Pa^_5fLi_4+8§3).     ^  ' 

In  New  York  it  is  said  that  the  remedy  by  audita  querela  is  not  abol- 
ished by  the  code  but  is  preserved  and  may  be  resorted  to  where  something 
has  occurred  since  the  rendition  of  judgment  making  its  enforcement  unjust 
or  inequitable  or  when  some  fact  exists  which  could  not  have  been  pleaded 
in  the  former  suit.  Mallory  v.  Norton,  21  Barb.  (N.  Y.)  424  (1856)  ;  Smith  v. 
McCluskey,  45  Barb.  (N.  Y.)  610  (1866);  Phillips  v.  Dusenberry,  8  Hun 
(N.  Y.)  348  (1876). 


FOSS   V.    WITH  AM  775 

MARK  H.  FOSS  v.  GEORGE  P.  WITHAM. 

Supreme  Judicial  Court  of  Massachusetts,   1865 

91  Mass.  572 

Audita  querela,  brought  to  reverse  a  judgment  erroneously  ren- 
dered in  favor  of  the  defendant  in  an  action  brought  by  him  against 
the  plaintiff,  who  lived  out  of  the  state  and  had  no  sufficient  notice 
of  the  action;  and  to  supersede  an  execution  issued  on  such  judg- 
ment. Judgment  was  entered  in  the  Superior  Court  by  Ames,  J., 
reversing  the  judgment  and  superseding  the  execution,  as  prayed 
for;  and  an  order  was  passed  that  the  original  action  should  be 
brought  forward  on  the  docket,  and  the  entry  of  judgment  and 
default  be  stricken  off,  and  the  action  remain  upon  the  docket  for 
further  directions ;  and  to  this  order  the  plaintiff  alleged  exceptions. 

Hoar,  J. :  We  are  of  opinion  that  the  exceptions  in  this  case 
must  be  sustained.  The  writ  of  audita  querela  is  the  commencement 
of  a  suit  at  common  law,  recognized  also  by  statute  in  this  common- 
wealth, in  which  the  plaintiff  asks  to  be  relieved  from  a  judgment 
or  execution,  or  both,  by  reason  of  some  matter  affecting  their 
validity  which  he  has  not  had  an  opportunity  to  plead.  If  the  exe- 
cution has  been  satisfied  in  whole  or  in  part,  or  he  has  been  impris- 
oned upon  it,  he  may  recover  compensation  in  damages  in  the  audita 
querela.  The  writ  in  this  case  is  properly  framed  for  these  objects. 
The  plaintiff  prays  for  the  relief  adapted  to  his  case.  But  the  de- 
fendant is  not  an  actor  in  the  suit;  and  no  proceedings  are  to  be 
had  in  it  for  his  benefit.  Either  the  plaintiff  prevails  in  whole  or 
in  part,  and  recovers  judgment  to  the  extent  to  which  he  is  entitled 
to  it,  or  there  is  a  judgment  for  the  defendant,  and  this  is  the  whole 
scope  and  effect  of  the  audita  querela.  3  Bl.  Comm.  405, 406 ;  Fitzh. 
Nat.  Brev.  102,  105;  Gen.  Stats,  ch.  145,  sections  1-7;  Love  joy  v. 
Webber,  10  Mass.  loi ;  Dingman  v.  Myers,  13  Gray.  1.°^^ 

The  plaintiff  is  entitled  to  a  reversal  of  the  judgment  errone- 
ously entered  against  him,  to  a  supersedeas  of  the  execution  which 
improvidently  issued,  and  to  his  costs.  So  far  the  judgment  of  the 
superior  court  was  right,  and  should  be  supported.  But  we  find 
no  authority  for  making  an  order  as  to  any  further  proceedings  in 
the  former  suit,  under  this  process.  It  has  sometimes  been  the  prac- 
tice of  courts  to  give  the  relief  which  an  audita  querela  affords,  in 

*°t)Accord:  Hyde  v.  Morlcy,  Cro.  Eliz.  40  (1584)  ;  Child  v.  Durrani,  Cro. 
Jac.  3S7  (1615)  ;  Flower  v.  Elgar,  Cro.  Car.  214  (1631)  ;  Dingman  v.  Myers, 
79  Mass.  I  (1859);  Marshall  v.  Mcrritt,  95  Mass.  274  (1866).  See  also, 
Anonymous,  i  Vent.  264  (1674)  ;  Anonymous,  12  Mod.  598  (1700)  ;  White  v. 
Harris,  5  Humph.  (Tenn.)  421  (1844);  Alexander  v.  Abbott,  21  Vt.  476 
(1849)  ;  Merritt  V.  Marshall,  loo  Mass.  244  (1868)  ;  Folan  v.  Folan,  59  Maine 
566  (1871);  Radclyffe  v.  Barton,  161  Mass.  327,  27  N.  E.  273  (1894),  and 
cases  there  cited;  Walter  v.  Foss,  67  Vt.  591,  32  Atl.  643  (1895);  Russell 
Lumber  Co.  v.  Smith,  82  Conn.  517,  74  Atl.  949  (1909)  ;  4  Cyc.  1058;  3  Enc. 
PI.  &  Pr.  113.  Where  the  proceedings  in  an  action  are  wholly  void  for  want  of 
jurisdiction  there  is  no  necessity  for  an  audita  querela.  French  v.  White,  7^^ 
Vt.  89,  62  Atl.  35,  2  L.  R.  A.  (N.  S.)  804  (1905). 


776  EXECUTION 

a  suiiiinaiv  wav,  uinm  motion,  wlicn  the  facts  are  not  in  dispute  and 
recent.  Ld.  Kaym.  1J95 ;  i  I\I.  &  S.  199;  4  Johns.  191;  17  Johns. 
487;  Loi'CjOV  V.  IVcbbcr,  ubi  suf^ra.  If  the  jM-occcdings  here  had 
been  upon  niotion,  we  do  not  mean  to  decide  that  they  would  have 
been  erroneous.  But  the  order  to  bring  forward  the  former  action, 
if  it  is  competent  to  the  court  to  make  it,  is  an  entirely  separate 
matter,  and  is  not  to  be  entered  as  a  part  of  the  judgment  in  the 
present  suit. 

Exceptions  sustained. 


SECTION  10.     SATISFACTION  OF  EXECUTIONS 

JIXKS  r.  AMERICAN  MTG.  CO.  OF  SCOTLAND 
Supreme  Court  of  Georgia,  1897 
102  Ga.  69 

Cobb,  J. :  The  American  Mortgage  Company  of  Scotland,  Lim- 
ited, obtained  a  judgment  against  jinks  on  the  twenty-sixth  day  of 
February,  1890,  for  $1,200  principal,  $226.28  interest,  $142.62  at- 
torney's fees,  and  $11.75  costs.  On  October  2,  1890,  an  execution 
issued  on  this  judgment  was  levied  upon  certain  land  as  tlie  prop- 
erty of  the  defendant  in  execution.  On  the  fifth  day  of  December, 
1893,  the  sheriff  made  the  following  entry  upon  the  execution: 
"After  duly  advertising  the  within-described  levied  lands  according 
to  law  in  iJie  'Butler  Herald'  nev/spaper,  the  official  gazette  of  the 
county,  I  this  day  exposed  the  same  to  sale  before  the  court  house 
door  'in  the  town  of  Butler,  Taylor  County,  Georgia,  within  the 
legal  hours  of  sale,  and  knocked  the  same  off  to  Austin  Corbin  for 
the  sum  of  nineteen  hundred  dollars,  he  being  the  highest  and  best 
bidder.  This  fifth  day  of  December,  1893.   C.  A.  J.  Pope,  Sheriff." 

On  ]\Iarch  5,  1894,  the  sheriff  levied  the  execution  again  upon 
a  part  of  the  property  described  in  the  former  levy,  as  well  as  other 
property  of  the  defendant.  To  this  levy  the  defendant  interposed 
an  affidavit  of  illegality,  setting  up  that  prior  to  December  5,  1893, 
he  had  paid  in  cash  upon  the  execution  the  sum  of  five  hundred 
dollars  and  that  tliis  sum,  together  with  the  amount  named  in  the 
entry  of  the  sheriff  relating  to  the  former  levy,  was  more  than 
sufficient  to  discharge  the  execution.  Upon  the  trial  of  the  issue 
formed  upon  this  affidavit  of  illegality,  the  judge  directed  a  verdict 
in  favor  of  the  plaintiff  in  execution.  In  this  we  think  that  he 
erred.  The  entry  of  a  sheriff  on  process  in  his  hands  is  generally 
not  traversable.  Higgs  v.  Huson,  8  Ga.  317,  321.  Such  an  entry 
may  be  traversed,  however,  for  fraud  or  collusion.  Tillman  v.  Davis, 
28  Ga.  494;  Sprinz  v.  Frank,  81  Ga.  162.  The  code  "widened  the 
laws  of  traverse  as  to  returns  of  service."  Civil  Code,  section  4988 ; 
Dozier  v.  Lamb,  59  Ga.  461.  But  the  returns  of  sheriffs  and  other 
lev}Mng  officers  upon  final  process  in  their  hands  are  still  governed 
by  tlie  law  as  it  stood  before  the  code  was  adopted. 


JINKS   V.    AMERICAN    MTG.    CO.  jy^ 

It  being  admitted  upon  the  trial  that  the  payment  of  five  hun- 
dred dollars  had  been  made,^'*  and  the  execution  when  introduced  in 
evidence  showing  an  entry  of  a  sale  at  which  an  amount  more  than 
sufficient  to  pay  the  balance  due  on  the  execution  was  realized,  the 
execution  appears  on  its  face  to  have  been  paid  off,  and  therefore 
a  levy  subsequent  to  such  entry  was  prima  facie  void.  As  long  as 
the  entry  of  the  sheriff  reciting  a  sale  at  an  amount  more  than  that 
due -on  the  execution  stands  upon  the  records  unimpeached  and  un- 
challenged, such  entry  is  conclusive  upon  the  plaintiff  in  execution. 
If  the  entry  is  false,  the  officer  making  it  is  liable  in  damages  to 
any  one  injured  thereby.  If  it  was  made  fraudulently  or  collu- 
sively,  it  may  be  attacked  and  set  aside  at  the  instance  of  any  one 
who  is  the  victim  of  such  fraud  or  collusion.  As  the  amount  of 
the  purchase  money  stated  in  the  sheriff's  return  of  the  sale  is  suffi- 
cient to  pay  off  the  entire  amount  then  due  on  the  execution,  the 
process  is  satisfied,  so  far  as  the  defendant  is*  concerned.  If  the 
purchaser  has  not  paid  the  bid,  suit  may  be  brought  against  him 
for  the  purchase  money,  or  the  property  can  be  resold  at  his  risk; 
and  if  an  amount  equal  to  the  final  bid  at  the  first  sale  is  not  realized, 
the  purchaser  at  such  sale  is  liable  for  such  deficiency.  Civil  Code, 
section  5466. 

Judgment  reversed.®^ 


"Payment  of  the  debt  in  full  to  the  proper  officer  discharges  the  execu- 
tion, although  the  creditor  does  not  receive  the  money.  Rook  v.  IVilmot,  Cro. 
Ehz.  209  (1590)  ;  O'Neall  v.  L^isk,  i  Bailey  (S.  Car.)  220  (1829)  ;  Beard  v. 
Millikan,  68  Ind.  231  (1879),  and  payment  of  part  will  be  a  satisfaction  pro 
tanto,  Sandburg  v.  Papineaii,  81  111.  446  (1876). 

*^A  sale  of  the  debtor's  property  discharges  the  execution  to  the  extent 
of  the  proceeds  of  the  sale.  Hoyt  v.  Peterson,  4  Johns.  (N.  Y.)  188  (1809)  ; 
Hamlin  v.  Boiighton,  4  Cow.  (N.  Y.)  65  (1825);  freeman  v.  Caldwell,  10 
Watts  (Pa.)  9  (1840);  Planters'  Bank  v.  Spencer,  li  l^ITss.  (3  SinT^'  M.) 
305  (1844")  ;  McCluskey  v.  McNeeley,  8  111.  (3  Gilm.)  578  (1846)  ;  Doe  ex  dem. 
Reynolds  V.  Ingersoll,  19  Miss.  (11  Sm.  &  M.)  249,  49  Am.  Dec.  57  (1848)  ; 
Murrell  v.  Roberts,  33  N.  Car.  424,  53  Am.  Dec.  419  (1850)  ;  Gray  v.  Grisivold, 
7  How.  Pr.  (N.  Y.)  44  (1852);  Niolin  v.  Hamner,  22  Ala.  578  (1853); 
Halcombe  v.  Loudermilk,  48  N.  Car.  (3  Jones)  491  (1856)  ;  Eftlinger  v. 
Tanscy,  17  B.  Mon.  (Ky.)  364  (1856)  ;  Rutledge  v.  Townsend,  38  Ala.  706 
(1863)  ;  Dough^s'  Appeal,  48_Pa,_Si.  22^^1864)  ;  McDevitt's  Appeal,  70  Pa. 
St.  Z72>  (i872)rKlemJIens  v.  Phelps,  6  Hun  (N.  Y.)  568  (1876)  ;  Elliott  v. 
Hiagins,  83  N.  Car.  459  (1880)  ;  Hoohmgh's  Appeal,  122  PgL_St._88>.i5  Atl. 
669  (1888);  Cakj-^  V  Bird,  T  ATnnag-.TP^  /]60,  470,  15  Atl.  774  (1888)  ; 
Boos  v.  Morgan,  130  Ind.  305,  30  N.  E.  141  (1891)  ;  Tonopah  Banking  Co.  v. 
McKane  Mining  Co.,  31  Nev.  29S,  103  Pac.  230  (1909)  ;  Herr  v^  Lancaster 
Trust  Co..  47  Pa..,Smier>-Ct^6^  (19^1} ■ 

Taking  the  defendant  on  a  capias  ad  satisfaciendum,  at  common  law. 
discharges  the  debt,  at  least  to  the  extent  that  other  writs  can  not  issue  while 
he  is  in  custody,  and,  if  he  is  released  by  the  act  of  the  creditor  no  further 
execution  can  issue.  Burnaby's  Case,  I  Str.  653  (1725);  Vigcrs  v.  Aldrich, 
4  Burr.  2482  (1769)  ;  Tanner  v.  Hague,  7  Term  Rep.  416  (1797)  ;  Jacques  v. 
Withey,  i  D.  &  E.  557,  i  H.  Bl.  65  (1787)  ;  Clark  v.  Clement,  6  D.  &  E.  525 
(1796)  ;  Blackburn  v.  Stupart,  2  East  243  (1802)  ;  Lambert  v.  Parncll,  15  L.  J. 


Q.  B.  55   (1845);  "Shnrpe  ^_^±ec_kenagle,  3.Serg.  &  R.   (Pa.)   463   (1817); 
508  (1819)  ;  Loomis  v.  Stoors,  4  Conn.  440  (1822)  ; 


Miller  v.  Miller,  5  N.  J.  L.  ^    ^ 

Cooper  V.  Bigalow,  l  Cow.  (N.  Y.)  56  (1823)  ;  Sunderland  v.  Loder,  5  Wend. 
(N.  Y.)  58  (1830);  Tappan  v.  Evans,  11  N.  H.  311  (1840);  McCrillis  v. 
Sisson,  I  R.  I.  143  (1840)  ;  Dodge  v.  Doane,  57  Mass.  (3  Cush.)  460  (1849)  ; 
Kennedy  v.  Diincklee,  67  Mass.  (l  Gray)  65  (1854)  ;  State  v.  Dodge,  24  N.  J. 


--S  EXECUTION 


UNITlvD  STATES  r.  DASHIEL 

Supreme  Court  ok  the  United  States,  1865 
70  U.  S.  688 

Debt  by  the  United  States  for  $20,085.74  against  Major  Dashiel, 
a  paymaster  in  the  army,  and  his  sureties.  The  defendant  claimed 
that  he  had  been  robbed  of  part  of  the  funds  in  his  care.  On  the 
trial  there  was  a  verdict  for  the  United  States  for  $10,318.22  and 
iudgment.  Not  satisfied  with  the  judgment  the  United  States  took 
"a  vait  of  error  to  this  court  on  September  i,  i860.  On  the  fifteenth 
of  April,  i860,  however,  before  taking  its  writ  of  error,  the  govern- 
ment sued  out  execution  against  Dashiel  and  levied  on  a  large 
amount  of  real  estate  and  on  eight  slaves  sufficient  in  all  to  satisfy 
the  judgment.  On  the  fifth  of  June,  i860,  the  deputy  marshal 
sold  a  portion  of  the  real  estate  for  $5,275,  and  then  adjourned  the 
sale  to  enable  the  defendant  to  find  purchasers  for  his  property .^^ 

Mr.  Paschall,  for  the  defendant  in  error,  moved  to  dismiss  the 
writ  of  error  on  the  ground  that  there  was  an  execution  sued  out 
by  the  plaintiff,  a  levy,  sale  and  satisfaction. 

Mr.  Speed,  attorney-general,  contra. 

Clifford,  J. :  Execution  was  issued  on  the  judgment  on  the 
fifteenth  day  of  April,  and  the  return  of  the  marshal  shows  that  on 
the  twenty-eighth  day  of  the  same  month  he  seized  certain  real 
property  and  slaves  sufficient  in  all  to  satisfy  the  judgment.  For- 
mality of  an  advertisement,  prior  to  sale,  was  omitted  by  the  marshal 
at  the  request  of  the  principal  defendant,  and  on  the  fifth  day  of 
June  following,  the  marshal  sold  certain  parcels  of  the  real  prop- 
erty at  public  auction,  amounting  in  the  whole  to  the  sura  of  five 
thousand  two  hundred  and  seventy-five  dollars,  as  appears  by  his 
return.  Nearly  half  the  amount  of  the  judgment  was  in  that 
manner  satisfied,  but  the  clear  inference  from  the  return  of  the 
marshal,  and  the  accompanying  exhibit,  is  that  the  sale  was  sus- 
pended and  discontinued  at  the  request  of  the  principal  defendant 
and  for  his  benefit.  Request  for  the  postponement  of  the  sale  came 
from  him,  and  it  was  granted  by  the  marshal,  as  stated  in  the  rec- 
ord, the  better  to  enable  the  defendant  to  find  purchasers  for  his 
property.  Writ  of  error  v/as  sued  out  by  plaintiffs  on  the  first  day 
of  September,  i860,  and  was  duly  entered  here  at  the  term  next 
succeeding,  and  since  that  time  the  case  has  been  pending  in  this 
court. 

Motion  to  dismiss  is  grounded  solely  upon  the  alleged  fact  that 
the  judgment  was  satisfied  before  the  writ  of  error  was  sued  out 

L.  671  (1855);  Nowell  V.  Waitt,  121  Mass.  554  (1877)-  Butif  the  debtor 
escape  or  is  discharged  without  the  assent  of  the  creditor  it  is  not  a  satis- 
faction. Richhorojigh  v.  IVest,  i  Hill  (S.  Car.)  309  (1833);  Bowrell  v. 
Zigler,  19  Ohio  362   (1852). 

"The  statement  of  facts  is  abridged,  and  the  arguments  of  counsel  and 
part  of  the  opinion  of  the  court  omitted. 


UNITED   STATES   V.    DASHIEL  779 

and  prosecuted.  Matters  of  fact  alleged  in  a  motion  to  dismiss,  if 
controverted,  must  be  determined  by  the  court.  Actual  satisfaction 
beyond  the  amount  specified  in  the  return  of  the  marshal  can  not 
be  pretended,  but  the  theory  is,  that  the  levy  of  the  execution  in 
the  manner  stated  affords  conclusive  evidence  that  the  whole  amount 
was  paid,  and  it  must  be  admitted  that  one  or  two  of  the  decided 
cases  referred  to  appear  to  give  some  countenance  to  that  view  of 
the  law ;  that  is,  they  assert  the  general  doctrine  that  the  levy  of 
an  execution  on  personal  property  sufficient  to  satisfy  the  execution 
operates  per  se  as  an  extinguishment  of  the  judgment.^''  None  of 
those  cases,  however,  afford  any  support  to  the  theory  that  any 
such  effect  will  flow  from  the  issuing  of  an  execution,  and  the  levy- 
ing of  the  same  upon  land.  On  the  contrary,  the  rule  is  well  settled 
that  in  the  latter  case  no  such  presumption  arises,  because  the  judg- 
ment debtor  sustains  no  loss  by  the  mere  levy  of  the  execution,  and 
the  creditor  gains  nothing  beyond  what  he  already  has  by  the  lien 
of  his  judgment.^®  Reason  given  for  the  distinction  is  that  the 
land  in  the  case  supposed  remains  in  the  possession  of  the  defend- 
ant, and  he  continues  to  receive  and  enjoy  the  rents  and  profits. 
Many  qualifications  also  exist  to  the  general  rule  as  applied  to  the 

^'Moiintncy  v.  Andreivs,  Cro.  Eliz.  237  (1591)  ;  Clerk  v.  Withers,  i  Salk. 
322,  2  Ld.  Raym.  1072  (1705)  ;  Ladd  v.  Blunt,  4  Mass.  402  (1808)  ;  Cutler  v. 
Colyer,  3  Cow.  (N.  Y.)  30  (1824) ;  Ex  parte  Lawrence,  4  Cow.  (N.  Y.)  417, 
15  Am.  Dec.  386  (1825).  In  Peck  v.  Tiffany,  2  N.  Y.  451  (1849),  it  is  said: 
"There  are  some  old  cases  in  which  dicta  are  found,  that  a  levy  upon  suffi- 
cient property  to  satisfy  the  execution  is  a  satisfaction,  but  that  doctrine  has 
long  since  been  exploded.  Where  a  sheriff  levies  upon  sufficient  property,  and 
through  his  negligence  or  misconduct  it  is  lost,  destroyed  or  otherwise  dis- 
posed of,  so  that  the  defendant  is  deprived  of  the  benefit  of  it,  there  is  no 
doubt  it  should  be  regarded  as  a  satisfaction  of  the  execution  and  the  plain- 
tiff must  in  such  case  seek  his  remedy  against  the  sheriff.  But  where  the 
debtor  has  neither  paid  the  debt,  nor  been  deprived  of  his  property,  the  simple 
act  of  levying  upon  it  is  not  a  satisfaction,  whether  the  debtor  has  been  per- 
mitted to  retain  the  property  either  by  his  own  misconduct,  or  by  his  request, 
or  the  voluntar>'  act  of  the  officer,  because  neither  works  any  wrong  to  him." 
See  also,  the  opinion  of  Cowen,  J.,  in  Green  v.  Burke,  23  Wend.  (N.  Y.) 
490  (1840),  and  Giles  v.  Grovcr,  6  Bligh.  (N.  S.)  277  (1832). 

^Shcpard  v.  Roive,  14  Wend.  (N.  Y.)  260  (1835)  ;  Taylor  v.  Ranney,  4 
Hill  (N.  Y.)  619  (1843).  An  elegit  executed  by  extent  returned  and  filed,  is 
a  full  satisfaction  of  the  judgment  debt.  Co.  Litt.  290 ;  2  Wms.  Saund.  68  n ; 
Bac.  Abr.,  execution,  D;  Crawley  v.  Lidyeat,  Cro.  Jac.  338  (1614)  ;  Hcle  v. 
Bexley,  17  Beav.  14  (1853).  And  so  where  land  is  set  off  to  the  creditor. 
Barnet  v.  IVashebaugh,  16  Serg.  &  R.  (Pa.)  410  (1827)  ;  IVareham  Savings 
Hank  V.  l/auglian,  133  Mass.'534  (TB82).  But  otherwise  if  the  extent  is  void. 
Pullen  V.  Purbeck,  12  Mod.  355  (1700).  Or  ineffective.  Leahy  v.  Dancer, 
I  Mol.  313  (1828)  ;  Cowles  v.  Bacon,  21  Conn.  451,  56  Am.  Dec.  371  (1852). 
And,  generall}',  a  levy  on  land  is  not  prima  facie  a  satisfaction  of  the  debt. 
Ladd  v.  Blunt,  4  Mass.  402  (1808)  ;  Gro  v^Huntington  Bank,  i  P.  &  W.  (Pa.) 
425  (1830)  ;  Reynolds  v.  Rogers,  5  Ohi^i69  (1831)  ;  Hogshead  v.  Carruth, 
5  Yerg.  (Tenn.)  227  (1833)  ;  Trapnall  v.  Richardson,  13  Ark.  543,  58  Am.  Dec. 
338  (1853)  ;  Taylor's  Appeal  i  Pa.  St^ 390,(1^45)  ;  White  v.  Graves,  15  Tex. 
183  (1855);  Robinson  V.  Brown,  82  111.  279  (1876);  Bellows  v.  Sowles, 
yi  Vt.  214,  44  Atl.  68  (1898).  In  Indiana  a  levy  on  real  estate  is  a  satisfaction 
to  the  same  extent  as  on  personalty.  Lindley  v.  Kelley,  42  Ind.  294  (1873); 
Touhcy  V.  Touhey,  151  Ind.  460,  51  N.  E.  919,  68  Am.  St.  233  (1898). 


-So  EXFXUTION 

low  of  an  execution  upon  the  goods  of  the  judj^mcnt  debtor,  as 
might  be  ilhistrated  and  enforced  by  numerous  decided  cases.  Where 
the  goods  seized  arc  taken  out  of  the  possession  of  the  debtor,  and 
tlicvarc  sulVicient  to  satisfy  the  execution,  it  is  doubtless  true,  that 
if  the  marshal  or  sherilT  wastes  the  goods,  or  they  are  lost,  or  de- 
stroyed by  the  negligence  or  fault  of  the  officer,  or  if  he  misapplies 
the  proceeds  of  the  sale,  or  retains  the  goods  and  does  not  return 
the  execution,  the  debtor  is  discharged;  but  if  the  levy  is  over- 
reached by  a  prior  lien,  or  is  abandoned  at  tlie  request  of  the 
debtor  or  for  his  benefit,  or  is  defeated  by  his  misconduct,  the  levy 
is  not  a  satisfaction  of  the  judgment.  Rightly  understood,  the  pre- 
sumption is  only  a  prima  facie  one  in  any  case,  and  the  w^hole 
extent  of  the  rule  is  that  the  judgment  is  satisfied  when  the  execu- 
tion has  been  so  used  as  to  change  the  title  of  the  goods,  or  in  some 
way  to  deprive  the  debtor  of  his  property.  When  the  property  is 
lost  to  the  debtor  in  consequence  of  the  legal  measures  which  tlie 
creditor  has  pursued,  the  debt,  says  Bronson,  C.  J.,^^  is  gone,  al- 
though the  creditor  may  not  have  been  paid.  Under  those  circum- 
stances the  creditor  must  take  his  remedy  against  the  officer,  and 
if  there  be  no  such  remedy  he  must  bear  the  loss. 

Tested  by  these  rules,  and  in  the  light  of  these  authorities,  it  is 
very  clear  that  the  theory  of  fact  assumed  in  the  motion  can  not 
be  sustained.  Satisfaction  of  the  judgment  beyond  the  amount 
specified  in  the  return  of  the  marshal  is  not  only  not  proved,  but 
the  allegation  is  disproved  by  the  amended  record. 

Motion  denied.^*' 

Grier,  Nelson  and  Swayne,  J  J.,  dissent. 

^People  V.  Hopson,  i  Denio  (N.  Y.)  574  (1845). 

"A  levy  on  personal  property  to  the  amount  of  the  debt  is  prima  facie 
a  satisfaction  of  the  execution,  but  the  presumption  may  be  rebutted.  Hoyt 
v.  Hudson,  12  Johns.  (N.  Y.)  207  (1815)  ;  Mcintosh  v.  Chew,  i  Blackf.  (Ind.) 
289  (1823);  Himt  V.  Breading ^z^^xex.^.  &  R  (Pa.)  37.  14  Am.  Dec.  665 
(1824);  Ontarw^ank  v.  Hallctt,  8  Cow.  (N.  Y.)  IQ2  (1828);  Duncan  v. 
//arm,  17_  S£rg^_R.-4JEa.)  436  (1828)  ;  Carroll  v.  Fields,  6  Yerg.  (Tenn.) 
305  (1834)  ;  Ford  v.  Commrs.  of  Geauga  County,  7  Ohio  492  (1836)  ;  Peck 
v.  Barney,  12  Vt.  72  (1840)  ;  Green  v.  Burke,  23  Wend.  (N.  Y.)  490  (1840)  ; 
Ostrandcr  v.  Walter,  2  Hill  (N.  Y.)  329  (1842)  ;  Taylor's  Appeal,  1  Pa.  St. 
390  (1845)  ;  Waddell  v.  f.lmendorf,  5  Denio  (N.  Y.)  447  (1848)  ;  Campbell 
V.  Carey,  5  Harr.  (Del.)  427  (1854)  ;  Davids _v,  Harris,  9^  P_a^,S_t^50l_(i848)  ; 
Lucas  V.  Cassaday,  2  Greene  (iowa)~2o8  (1849)  ;  Montgomery  v.  Wayne, 
14  111-  2>72>  (1853)  ;  Lyon  v,  Ham pton^  20  Pa.  St.  ^6  (1852)  ;  Brown  v.  Kidd, 
34  Miss.  291  (1857)  ;  Camphell^Bredlin  WVoIF^l^eal,  ?a  Pa.  St  88  08.^8)  ; 
Garner  v.  Cutler,  28  Tex.  175  0866)  ;  Walker  v.  ~Comm.,  i8~Gratt  (Va.) 
13,  98  Am.  Dec.  631  (1867)  ;  Carr  v.  IVeld,  19  N.  J.  Eq.  319  (1868)  ;  Hunn  v. 
Hough,  5  Heisk.  (Tenn.)  708  (1871)  ;  Wilson  v.  Hatfield,  121  Mass.  551 
(1877) ;  Bookstaver  v.  Glennv,  3  T.  &  C.  (N.  Y.)  248  (1874)  ;  Smith  v.  Reed, 
52  Cal.  345  (1877)  ;  Chandler  v.  Goodrich,  58  N.  H.  525  (1879)  ;  McCahe  v. 
Goodwine,  65  Ind.  288  (1879)  ;  Oliver  v.  Georgia,  64  (^a.  480  (1880)  ;  McFver 
V.  Ballard,  96  Ind.  76  (1884);  Chandler  v.  Higgins,  109  111.  602  (1884); 
McKcnzie  v.  Wiley,  27  W.  Va.  658  (1886)  ;  Conway  v.  Wilson,  44  N.  J.  Eq. 
457,  II  Atl.  734  (1888)  ;  Smith  v.  Condon,  174  Mass.  550,  55  N.  E.  324,  75  Am. 
St.  Z72  (1899). 


PEOPLE   EX    REL.    FITCH    V.    MEAD  781 

SECTION  II.     SUPPLEMENTARY  PROCEEDINGS 

PEOPLE  EX  REL.  FITCH  v.  MEAD 

Supreme  Court  of  New  York,  Special  Term,  1865 

29  Hoiv.  Pr.  (N.  y.)  360'* 

E.  Darwin  Smith,  J. :  The  return  to  this  writ  of  habeas  corpus 
shows  that  the  relator  is  imprisoned  by  the  sheriff  of  Cayuga  County 
upon  a  process  for  a  contempt,  specially  and  plainly  charged  in  the 
commitment,  issued  by  the  county  judge  of  Cayuga  county,  an 
officer  clearly  having  authority  to  commit  for  the  contempt  so 
charged.  By  the  forty-first  section  of  the  habeas  corpus  act,  it  is 
provided  that  when  it  appears  by  the  return  that  the  prisoner  is  in 
custody  in  such  case,  he  can  only  be  discharged  from  such  impris- 
onment in  one  of  five  cases  therein  specified,  none  of  which  is 
applicable  to  this  case  except  the  first,  which  is,  "when  the  jurisdic- 
tion of  such  court  or  officer  has  been  exceeded,  either  as  to  matter, 
place,  sum  or  person." 

The  county  judge  clearly  had  jurisdiction  in  proceedings  sup- 
plemental to  execution.  The  proper  order  for  the  appearance  be- 
fore him  of  the  relator  was  duly  made  under  section  292  of  the  code, 
upon  due  proof  of  recovery  of  a  judgment  in  this  court,  and  that 
an  execution  therein  had  been  duly  returned  unsatisfied,  and  such 
order  had  been  duly  served  upon  the  relator,  and  he  in  pursuance 
of  the  requirements  thereof  had  duly  appeared!  before  said  judge 
to  submit  to  the  examination  thereby  directed.  The  county  judge 
had  thus  also  duly  acquired  jurisdiction  of  the  person  of  the  relator, 
according  to  the  statute. 

The  examination  of  the  relator  had  been  commenced,  but  as 
the  proof  clearly  shows,  had  not  been  completed  and  the  proceed- 
ings had  been  duly  continued  for  that  purpose  by  adjournment  at 
the  instance,  and  for  the  benefit  of  the  relator,  and  in  consequence 
chiefly  of  his  sickness,  up  to  the  time  when  the  alleged  contempt  v^^as 
committed,  by  the  refusal  of  the  relator  to  answer  such  further 
proper  questions  as  he  was  required  to  do  by  the  county  judge. 
The  refusal  of  the  relator  to  make  answer  before  the  county  judge, 
which  is  the  contempt  for  which  he  was  convicted  and  stands  im- 
prisoned, was  put  upon  the  ground  at  the  time,  under  tlie  advice  of 
his  counsel,  that  the  county  judge  had  lost  jurisdiction  of  his  per- 
son and  of  the  proceedings,  by  the  appointment  of  a  receiver  of 
the  property  and  effects  of  the  relator,  and  the  filing  of  the  order 
for  such  appointment  and  the  testimony  then  taken,  in  the  county 
clerk's  office.  And  this  was  the  point  relied  upon,  by  the  counsel 
for  the  relator,  in  his  argument  here  for  the  discharge  of  the  re- 
lator, upon  the  return  of  the  writ  of  habeas  corpus.  If  it  be  sound, 
it  would  follow  that  the  county  judge  exceeded  his  jurisdiction  in 

"The  statement  of  facts  and  parts  of  the  opinion  are  omitted. 


^S2  EXFXUTION 

rciiuiriii}^  the  relator  to  answer  the  questions  put  to  hhn ;  that  he 
liad  then  lost  jurisdiction  of  his  person  and  of  the  procecdinpfs,  and 
the  relator  would  be  entitled  to  a  discharge  from  his  imprisonment 
for  the  alleged  contempt. 

The  ari;iiment  of  the  learned  counsel  for  the  relator  is,  that 
the  ajipointment  of  a  receiver  of  the  property  of  the  judgment 
debtor,  is  the  chief  object  and  end  of  these  proceedings,  supple- 
mental to  execution,  and  that  upon  such  appointment  the  proceed- 
ing is  terminated;  that  such  appointment  is  the  final  step  in  the 
proceedings,  like  final  judgment,  and  that  the  jurisdiction  of  the 
otficer  is  thereupon  at  an  end.  This  view  of  the  proceedings,  I 
think,  is  a  mistaken  one.  They  were  designed  to  be  a  substitute 
in  part  for  the  creditor's  bill  of  the  court  of  chancery,  under  the 
old  system.  For  the  proceedings  by  suit,  subpoena  and  injunction, 
calling  for  a  discovery  upon  oath,  and  involving  the  appointment  of 
a  receiver,  an  order  from  a  judge  requiring  an  oral  examination  and 
discovery  before  the  judge  or  a  referee  out  of  court,  is  substituted. 
It  is  a  summary  proceeding,  accomplishing  the  same  end  with  a 
creditor's  bill,  and  at  small  expense  to  the  parties.  I  think  it  was 
to  some  extent  borrowed  from  the  one  hundred  and  ninety-first  rule 
of  the  court  of  chancery,  in  force  when  that  court  expired.  This 
rule  provided  that)  the  debtor  against  whom  a  creditor's  bill  was 
filed,  should  not  be  subjected  to  the  expense  of  putting  in  an  answer 
thereto  in  the  usual  manner,  if  he  should  cause  his  appearance  to 
be  entered,  and  should  within  twenty  days  after  service  of  a  copy 
of  the  bill  and  notice  of  an  order  to  answer,  deliver  to  his  com- 
plainant a  written  consent  that  an  order  might  be  entered  taking 
the  bill  as  confessed,  and  for  the  appointment  of  a  receiver,  and 
for  a  reference  to  take  the  examination  of  the  defendant  in  con- 
formity with  the  rule.  Upon  presenting  such  stipulation  to  the  court, 
the  complainant  was  entitled  to  an  order  directing  the  bill  to  be 
taken  as  confessed  against  a  debtor,  and  referring  it  to  a  master 
to  appoint  a  receiver  and  take  the  examination  of  the  debtor.  The 
order  also  directed  the  debtor  to  transfer  to  such  receiver  under 
oath,  all  his  property  and  equitable  interests,  and  things  in  action, 
and  that  he  appear  from  time  to  time  before  the  master  for  that 
purpose,  and  to  submit  to  such  examination  as  the  master  should 
direct;  and  what  was  accomplished  under  this  system  by  the  filing 
of  the  creditor's  bill,  the  injunction  thereupon,  the  stipulation  of 
the  defendant  under  said  rule,  and  the  order  taking  the  bill  as  con- 
fessed, and  for  a  reference  to  appoint  a  receiver  and  take  the  exam- 
ination of  the  defendant,  is  now  accomplished  by  a  simple  order 
of  a  judge,  under  section  292  of  the  code,  and  with  the  proper  pro- 
ceeding under  chapter  two  of  the  code,  entitled,  "proceedings  sup- 
plemental to  the  execution." 

The  appointment  of  the  receiver  was  under  said  rule  191,  or 
might  have  been,  the  first  step  in  the  master's  office  under  the  order 
of  reference,  and  I  think  in  practice  was  ordinarily  the  first  step 
taken  on  the  appearance  of  the  defendant  before  the  master.  After 
the  receiver  was  appointed,  the  defendant  was  then  examined,  and 


PEOPLE   EX    EEL.    FITCH    V.    MEAD  783 

required  by  the  master  to  deliver  to  the  receiver  the  property  dis- 
covered on  such  examination.  I  do  not  see  why  this  is  not  tlie 
proper  practice  now,  upon  the  return  of  this  order  for  the  exam- 
ination of;  the  defendant  before  the  judge,  under  section  292.  If 
the  receiver  is  not  generally  appointed  immediately  on  the  return 
of  the  order,  I  suppose  it  is  omitted  to  save  expense,  but  I  have  no 
doubt  that  the  officer  instituting  and  conducting  these  proceedings 
supplemental,  may  appoint  the  receiver  at  any  time  while  the  pro- 
ceedings are  pending  before  him  in  his  discretion,  and  think  the 
power  conferred  upon  the  judge  by  section  298,  may  be  exercised  by 
him  whenever  in  the  progress  of  the  proceedings  he  thinks  it  proper 
to  do  so.  It  must  be  of  course  while  the  defendant  is  before  him, 
and  while  the  proceedings  are  kept  in  life  by  proper  adjournments, 
and  it  seems  to  me  that  there  is  great  propriety  in  the  appointment 
of  the  receiver  in  an  early  stage  of  the  proceedings,  if  they  are,  or 
are  likely  to  be  protracted.  In  this  case  they  were  continued 
through  several  months.  The  order  of  the  judge  operates  like  the 
filing  of  a  creditor's  bill  to  attach  the  equitable  interests  of  the 
judgment  debtor,  but  it  does  not  create  any  lien  upon  personal 
property.  Such  lien  will  not  be  created  till  the  order  be  made  for 
the  appointment  of  a  receiver.  Until  such  order  is  made,  other 
creditors  of  the  judgment  debtor  may  levy  upon  any  of  his  personal 
property  subject  to  execution,  and  acquire  a  valid  lien  thereon. 
Van  Alstine  v.  Cook,  24  N.  Y.  496.  The  property  of  the  judg- 
ment debtor  vests  in  the  receiver  from  the  time  the  order  is  made 
directing  such  appointment.  Porter  y.  Cook,  5  Seld.  (N.  Y.)  148.  It 
follows,  therefore,  tliat  to  give  full  effect  to  these  proceedings,  and  to 
give  the  creditor  instituting  them  the  full  benefit  thereof,  he  should 
promptly  procure  the  appointment  of  a  receiver.  This  is  essential 
to  perfect  his  lien.  It  can  not  be,  therefore,  that  he  must  be  com- 
pelled to  wait  till  a  protracted  examination  of  the  judgment  debtor 
is  finished,  protracted  perhaps,  for  the  very  purpose  of  defeating 
the  object  of  the  proceedings  by  judgment,  by  allowing  his  assets 
to  be  scattered  and  seized  by  other  creditors,  before  the  prosecuting 
creditor  could  have  the  receiver  appointed  and  it  can  not  be  that  he 
loses  all  right  to  discover  from  the  judgment  debtor  after  the  ap- 
pointment of  such  receiver.  I  can  see  no  principle  or  reason  upon 
which  such  a  claim  can  be  founded,  and  it  is  in  clear  conflict  with 
the  object  and  intent  of  this  whole  proceeding. 
Relator  remanded.^- 


"In  many  instances  where  an  ordinary  execution  is  inadequate  to  obtain 
satisfaction  of  the  judgment  debt,  the  creditor  may  resort  to  equity  to  obtain 
discovery  of  assets  or  to  set  aside  fraudulent  transfers  of  property.  In 
some  jurisdictions  additional  summary  modes  of  reaching  the  assets  of  the 
debtor  are  provided  by  statute,  known  as  "supplementary  proceedings"  or 
"proceedings  supplemental  to  execution."  The  statutes  differ  materially  in 
the  relief  afforded,  but  the  more  comprehensive  laws  enable  the  holder  of 
an  unsatisfied  judgment  to  obtain:  (i)  An  order  compelling  the  debtor  to 
attend  before  a  judge  or  referee  and  submit  to  an  examination  concerning 
his  property.  (2)  Upon  proof  that  the  debtor  has  property  which  he  unjustly 
refuses  to  apply  to  the  satisfaction  of  the  judgment  or  that  there  is  danger 


7S4  EXECUTION 

FELDEXIIEn.IEll  -r.  TRESSEL 

Supreme  Court  of  tiik  Territory  of  Dakota,  1889 

6  Dale.  2C5 

Spexcer,  J.:  This  is  a  bill  filed  by  the  plaintiff,  as  a  jiidfrmcnt 
creditor,  for  the  purpose  of  having  declared  void  and  set  aside  a 
conveyance  of  the  defendant's  lands,  alleged  to  have  been  made 
fraudulently,  and  praying  that  such  lands  may  be  subjected  to  the 
judgment  recovered  by  said  plaintiff  against  the  defendant,  John  J. 


that  he  will  leave  the  state  or  conceal  himself,  an  order  may  be  made  for  the 
arrest  of  the  debtor  who  may  then  be  required  to  give  security  not  to  dis- 
pose of  his  property  pending  the  proceedings.  (3)  An  order  may  be  made 
requiring  any  per.-on  or  corporation,  having  property  of  the  debtor  or  being 
indebted  to  him,  to  attend  and  be  examined  concerning  the  debt  or  propertJ^ 
Further  orders  may  be  made  to  restrain  any  transfer  or  interference  with 
discovered  property  and  subjecting  or  applying  such  property  to  the  pay- 
ment of  the  debt.  (4)  An  order  may  be  made  appointing  a  receiver  of  the 
property  of  the  judgment  debtor.  New  York  Code  Civ.  Pro.,  §§  2432-2471. 
See  also,  California  Code  Civ.  Pro.,  §§  714-721;  Iowa  Code  (1897),  §§  4072- 
40Q0;  Ohio  Gen.  Code  (1910)  §§  11768-11781  Mass.  Rev.  Laws  (1902),  ch. 
168,  §§  17-20;  N.  J.  Comp.  Stat.  (1910)  p.  2249;  Pennsylvania  Act  of 
1^-  n,  TOT 3,  P  L.  197;  Orr's  Case,  2  Abb.  Pr.  (l>r~YT  457'~U^)  : 
Catlm  v.  Doughty,  12  How.  Pr.  (N.  Y.)  457  (1856)  ;  Ozccn  v.  Dupignac, 
Q  Abb.  Pr.  (N.  Y.)  180,  17  How.  Pr.  (N.  Y.)  S12  (1859);  Field  v. 
Sands,  21  N.  Y.  Super.  Ct.  685  (1861)  ;  Pope  v.  Cole,^64  Barb.  (N.  Y.)  406 
(1872)  ;  Carter  v.  Clarke,  30  N.  Y.  Super.  Ct.  43  (1867)  ;  Lynch  v.  Johnson, 
48  N.  Y.  27  (1871)  ;  Clark  v.  Bergcnihal,  52  Wis.  103,  8  N.  W.  865  (1881)  ; 
Munds  V.  Cassidey,  98  N.  Car.  558,  4  S.  E.  353,  355  (1887);  Hcrrlich  v. 
Kanfmann,  99  Cal.  271,  33  Pac.  857,  2>7  Am.  St.  50  (1893)  ;  Adlcr  v.  Tnrnhull, 
57  ^'.  J.  L.  62,  30  Atl.  319  (1894)  ;  Bryan  v.  Grant,  87  Hun  (N.  Y.)  68,  33 
N.  Y.  S.  957,  67  N.  Y.  St.  639  (1895)  ;  faneiiil  Hall  Nat.  Bank  v.  Bussing, 
147  N.  Y.  6O5,  42  X.  E.  345  (i89t)  ;  Billson  v.  Lindcrbcrg,  66  Minn.  66,  68 
N.  W.  771  (1896);  Klcpsch  V.  Donald,  18  Wash.  150,  51  Pac.  352  (1897); 
Stiefel  V.  Berlin,  28  App.  Div.  103,  51  N.  Y.  S.  147  (1898)  ;  Consolidated 
Agency  Co.  v.  Tozvnslcy,  72  ]Misc.  155,  129  N.  Y.  S.  773  (1911)  ;  Stevens  v. 
Maus,  155  App.  Div.  249,  139  N.  Y.  S.  1059  (1913).  As  to  receivers  see 
Webb  v.  Overman,  6  Abb.  Pr.  (N.  Y.)  92  (1867);  De  Camp  v.  Dempsey, 
ID  N.  Y.  Civ.  Pro.  210  (1886)  ;  Habenicht  v.  Lissick,  78  Cal.  3SI,  20  Pac.  874, 
5  L.  R.  A.  713,  12  Am.  St.  63  (1889)  ;  Adler  v.  Turnhiill,  57  N.  J.  L.  62,  30 
Atl.  319  (1894)  ;  Teats  v.  Bank  of  Hcrington,  58  Kans.  721,  51  Pac.  219 
(1897)  ;  Globe  Phosphate  Co.  v.  Pinson,  52  S.  Car.  185,  29  S.  E.  549  (1897)  ; 
Wilkinson  v.  Market,  65  N.  J.  L.  518,  47  Atl.  488  (1900)  ;  Dease  v.  Reese,  39 
Misc.  657,  80  X.  Y.  S.  590  (1903)  ;  Ryan  v.  Wagner,  143  App.  Div.  176,  127 
N.  Y.  S.  973  (iQii)- 

Disobedience  of  orders  made  by  the  court  in  supplementary  proceedings 
is  punished  as  contempt  of  court.  Page  v.  Randall,  6  Cal.  32  (1856)  ;  Parker 
v.  Hunt,  15  Abb.  Pr.  (N.  Y.)  410  n  (1863)  ;  Ammidon  v.  Wolcott,  15  Abb.  Pr. 
(X.  Y.)  314  (i860)  ;  Lathrop  v.  Clapp,  40  N.  Y.  328,  100  Am.  Dec.  493  (1869)  ; 
Shepard  V.  Kent  Circuit  Judge,  109  Mich.  606,  68  N.  W.  221  (1896)  ;  In  re 
Knaup,  144  Mo.  653,  46  S.  W.  151,  66  Am.  St.  435  (1898);  Feinberg  v. 
Kutcosky,  147  App.  Div.  393,  132  N.  Y.  S.  9  (1911)  ;  Shorwits  v.  C amines, 
1S2  App.  Div.  758,  137  X.  Y.  S.  545  (1912)  ;  Goldreyer  v.  Foley,  139  N.  Y.  S. 
190,  154  App.  Div.  584  (1913);  Schwartz  v.  Sill,  85  Misc.  55,  146  N.  Y.  S. 
1068  (1914)  ;  People  ex  rel.  Roache  v.  Hanbury,  162  App.  Div.  227,  I47  N-  Y. 
S.  851  (1914).  For  England,  see  Rules  of  the  Supreme  Court,  Order  XLH, 
rule  2-',  Order  XLIII,  rule  6;  Order  L,  rule  15a. 


FELDENHEIMER  V.    TRESSEL  785 

Tressel,  previous  to  the  filing  of  this  bill,  and  that  the  same  may 
be  sold  in  satisfaction  of  plaintiff's  judgment. 

To  the  complaint  the  defendants  demurred  on  the  ground  that 
the  complaint  did  not  state  facts  sufficient  to  constitute  cause  of 
action,  the  particular  ground  of  demurrer  being  that  creditor's  bills 
■will  not  lie  in  this  territory,  for  the  reason  that  the  provisions  of  the 
Code  of  Civil  Procedure  in  regard  to  proceedings  supplementary 
to  execution  have  superseded  the  remedy  by  creditor's  bills,  and 
now  furnish  In  this  jurisdiction  the  exclusive  remedy  to  judgment 
creditors  to  subject  property  to  the  satisfaction  of  their  debts J^ 

What  were  the  powers  of  the  court  of  chancery  in  reference  to 
creditor's  bills  ^. 

The  court  of  chancery  formerly  had  cognizance  of  bills  filed 
by  judgment  creditors,  after  they  had  exhausted  their  remedies  at 
law,  to  subject  lands  fraudulently  conveyed  to  the  payment  of  tlieir 
judgments.  Edgell  v.  Hayzvood,  3  Atk.  357;  Edmeston  v.  Lyde,  1 
Paige  (N.  Y.)  637;  and  by  the  filing  of  such  a  bill  the  creditor  ac- 
quired a  lien  upon  lands  which  was  superior  to  any  subsequent  con- 
veyance. Such  bills  were  sustainable  under  the  ordinary  jurisdiction 
of  the  court.  Its  power  to  hear  such  cases  and  set  aside  fraudulent 
conveyances  which  stood  as  obstructions  to  executions  at  law  was 
inherent  in  the  court,  and  not  dependent  upon  any  statute.  Beck  v. 
Burdett,  i  Paige  (N.  Y.)  305. 

From  its  earliest  history  the  court  of  chancery  has  exercised 
the  power  of  compelling  the  transfer  of  the  title  to  real  estate  by 
obliging  parties  holding  the  legal  title  to  convey  it,  or  by  directing 
it  to  be  sold  by  somq  officer  of  the  court  appointed  for  the  purpose, 
or  by  declaring  the  title  by  wdiich  it  was  held  fraudulent,  and  sub- 
jecting it  to  sale  under  an  execution  at  law.  Moidd  v.  Williamson, 
2  Cox  Cli,  386;  Edgell  v.  Haywood,  3  Atk.  357;  Burroughs  v.  Elton, 
II  Ves.  33.  These  decisions  have  since  been  followed,  both  in  Eng- 
land and  in  this  country,  particularly  upon  bills  by  judgment  cred- 
itors to  set  aside  fraudulent  conveyances.  Thus  it  was  held  in 
Hendricks  v.  Robinson,  2  Johns,  Ch.  (N.  Y.)  283,  that  one  creditor 
might  maintain  a  bill  on  behalf  of  himself  and  other  creditors,  or  on 
behalf  of  himself  alone,  to  have  certain  conveyances  of  his  debtor 
declared  fraudulent  and  void ;  and  in  Cuylcr  v.  Moreland,  6  Paige 
(N.  Y.)  273,  that  a  bill  will  be  sustained  filed  by  a  judgment  cred- 
itor for  the  double  purpose  of  removing  a  fraudulent  obstruction  to 
an  execution  at  law  and  of  reaching  the  debtor's  equitable  assets  ; 
and  though  a  fraudulent  assignor  dies  before  judgment  against  him, 
a  creditor's  bill  will  lie  to  set  aside  a  fraudulent  conveyance  made  by 
him.  Frazerv.  Western,  i  Barb.  Ch.  (N.  Y.)  220.  In  Wakeman  v. 
Grover,  4  Paige  (N.  Y.)  23,  the  bill  of  a  judgment  creditor  to  obtain 
satisfaction  out  of  his  debtor's  equitable  assets  was  sustained,  as 
was  also  a  bill  filed  by  such  a  creditor  for  the  enforcement  of  his 
judgment  out  of  property  which  the  debtor  had  fraudulently  placed 
out  of  his  reach.    Weed  v.  Pierce,  9  Cow.  (N.  Y.)  y22. 

"The  arguments  of  counsel  and  part  of  the  opinion  are  omitted. 
SO — Civ.  Prog. 


^86  EXr.CUTION 


It  is,  therefore,  settled  beyond  question  that  originally  the  court 
of  chancery,  in  the  exercise  of  its  equitable  powers,  had  jurisdic- 
tion of  creditors'  bills  brought  for  the  purpose  of  setting  aside 
fraudulent  conveyances,  or  reaching  equital)le  assets  which  the 
dcfcnilant  had  put  in  the  hands  of  third  parties;  and  the  plain- 
tiff in  tlie  suit  at  bar,  having  exhausted  his  remedy  at  law  by  the 
return  of  his  execution,  as  appears  from  his  bill,  was  in  situation 
to  ask  the  aid  of  equity  to  set  aside  the  alleged  fraudulent  convey- 
ance, if  the  facts  should  demonstrate  that  it  was  so,  and  to  reach 
the  equitable  assets,  if  any,  which  had  been  put  out  of  his  reach  by 
the  defendant. 

The  Supreme  and  District  courts  of  this  territory  have,  under 
tlie  organic  law,  chancery,  as  well  as  common  law,  jurisdiction 
(Organic  Law,  Comp.  Laws,  section  33)  ;  and  hence  this  complaint 
in  its  present  form  may  be  maintained  unless  some  other  remedy 
equally  effectual  has  been  provided  by  law.  It  is  claimed  that^  such 
remedy  has  been  provided  by  the  Code  of  Civil  Procedure  in  its 
provisions  in  regard  to  proceedings  supplementary  to  execution,  and 
tliat  this  remedy  is  exclusive.  \\'e  are  unable  to  assent  to  this 
proposition  for  several  reasons.  The  remedy  afforded  by  proceed- 
ings supplementary  to  execution  is  not  as  effective  as  tliat  fur- 
nished by  creditors'  bills  as  administered  by  courts  of  equity.  They 
are  merely  proceedings  in  the  original  action  for  the  purpose  of 
enforcing  the  judgment  already  recovered.  Dresser  v.  Van  Pelt, 
15  How.  Pr.  (N.  Y.)  19;  Cold  v.  Torrance,  19  How.  Pr.  560.  In 
the  latter  case  the  court,  in  defining  these  proceedings,  says  that  they 
are  in  the  nature  of  additional  or  equitable  executions.  It  is  not  m 
any  sense  a  new  suit.  By  these  proceedings  a  summary  mode  is 
instituted  for  ascertaining  what,  if  any,  property  a  judgment  cred- 
itor may  have  under  his  control  or  in  his  possession  subject  to  exe- 
cution, and  if  any  persons  are  ov/ing  him,  and  to  what  extent. 
Third  persons  can  not  be  made  parties  to  the  original  suit,  though 
tliey  be  compelled  to  appear  and  be  examined  as  to  any  property 
under  their  control  or  in  their  custody  belonging  to  the  defendant, 
or  as  to  whether  they  owe  him.  But  this  is  the  extent  to  which  the 
inquiry  can  go  in  such  proceedings.  If  property  belonging  to  the 
defendant  is  found  upon  such  an  examination  in  the  hands  of  these 
persons,  it  may  be  ordered  turned  over  to  apply  on  the  judgment 
debt;  but  if  the  right  of  the  person  having  it  under  apparent  title 
comes  in  question,  if  he  claims  to  be  the  ovv-ner  of  the  property,  the 
question  of  title  can  not  be  summarily  disposed  of  by  the  court  or 
iudge  before  whom  the  proceedings  may  be  pending.  Such  ques- 
tions must  be  adjudicated  and  determined  by  an  action  brought  for 
that  purpose.  It  is  thus  made  apparent  that  the  remedy  by  pro- 
ceedings supplementary  to  execution  are  much  less  efficacious,  and 
in  many  cases  would  not  afford  relief  to  the  same  extent  as  a  bill 
in  equity,  and  this  even  though  the  proceeding  should  be  prose- 
cuted to  a  receivership  and  carried  to  its  utmost  extent  under  the 
statute. 


FELDENHEIMER   V.    TRESSEL  787 


In  Field  v.  Sands,  8  Bosw.  (N.  Y.)  685,  it  was  held  that  the  com- 
mencement of  supplementary  proceedings  and  the  appointment  of  a 
receiver  therein  did  not  create  any  lien  upon  assets  previously  as- 
signed by  the  debtor ;  that  such  assets  could  only  be  reached  by  a 
creditor'^  suit.  A  similar  decision  was  made  in  Conger  v.  Sands, 
19  How.  Pr.  (N.  Y.)  8.  See,  also,  Gasper  v.  Bennett,  12  How.  Pr. 
(N.  Y.)  307.  It  is  doubtless  true  that  in  many  jurisdictions  adequate 
remedies  have  been  provided  by  law  to  accomplish  some  of  the  pur- 
poses of  creditors'  suits — discovery  of  assets,  debts  owing  by  third 
persons,  and  the  like — and  for  these  purposes  proceedings  supple- 
mentary to  execution  may  be  considered  a  substitute.  But  for  the 
purpose  of  reaching  equitable  assets  of  the  judgment  debtor,  or  to 
set  aside  fraudulent  transfers  of  property,  supplemental  proceedings 
provide  an  inadequate  remedy;  and,  though  in  many  respects  they 
may  serve  as  a  substitute  for  a  creditor's  bill,  they  are  by  no  means 
the  exclusive  remedy  to  which  the  creditor  may  resort.  He  may  still 
have  his  creditor's  suit.  Pope  v.  Cole,  64  Barb.  (N.  Y.)  406;  Bank 
V.  White,  6  N.  Y.  236. 

The  right  of  a  judgment  creditor  to  maintain  an  action  in  the 
nature  of  a  creditor's  bill,  notwithstanding  the  remedy  provided  by 
proceedings  supplementary  to  execution,  has  been  frequently  held. 
Thus,  in  Catlin  v.  Doughty,  12  How.  Pr.  (N.  Y.)  457,  it  was  held 
that  the  former  action  by  judgment  creditor's  bill  was  still  in  force, 
and  might  be  resorted  to  by  a  judgment  creditor  to  reach  equitable 
assets  after  the  return  of  an  unsatisfied  execution.  In  Gere  V- 
Dibble,  17  How.  Pr.  (N.  Y.)  31,  it  was  held  that  a  creditor's  bill 
would  lie  in  favor  of  judgment  creditors  on  their  ovv^n  account  to  set 
aside  a  fraudulent  conveyance  made  by  the  judgment  debtor  on  his 
real  estate,  even  after  the  appointment  of  a  receiver  in  proceedings 
supplementary  to  execution,  the  judgment  constituting  the  basis  of 
the  action  having  been  recovered  before  the  receiver  was  appointed. 
In  Bennett  v.  McGuire,  58  Barb.  (N.  Y.)  625,  it  was  held  that  a 
judgment  creditor,  even  after  having  commenced  proceedings  sup- 
plementary to  execution,  had  a  right  to  abandon  the  same  and  main- 
tain an  action  in  his  own  name  to  set  aside  a  mortgage  executed  by  a 
judgment  debtor  as  being  without  consideration,  and  fraudulent. 
The  following  cases  will  be  found,  also,  to  sustain  this  petition : 
Bartlett  v.  Drew,  4  Lans.  (N.  Y.)  444;  Phelps  v.  Piatt,  50  Barb. 
(N.  Y.)  430;  Taft  V.  Wright,  47  How.  Pr.  (N.  Y.)  i ;  Burt  v.  Hoet- 
tinger,  28  Ind.  217;  Parsons  v.  Meyburg,  i  Duv.  (Ky.)  206;  and 
there  are  others  of  like  import.  We  can  not  assume  that  the  legisla- 
ture intended  to  take  from  creditors  any  of  the  remedies  that  they 
enjoyed  tmder  the  court  of  chancery  for  the  enforcement  of  tlieir 
judgment,  after  having  exhausted  their  remedy  at  law,  and  turn 
them  over  to  the  often  inadequate  and  imperfect  remedy  provided 
by  the  statute  in  regard  to  proceedings  supplementary  to  execution. 
Upon. reason  and  authority  the  remedy  by  creditor's  suit  exists  now 
as  it  formerly  did  under  the  court  of  chancery.  Under  the  codes 
of  procedure  a  suit  in  the  nature  of  a  creditor's  bill  may  be  main- 


-88  F.XF.CUTIOX 

taincJ  under  the  same  rulos  wliich  formerly  prevailed  in  courts  of 
chancery.  The  code  has  changed  the  form  of  the  suit,  but  has  not 
aiTectcd  the  ris:hts  of  the  parties,  or  impaired  the  powers  of  courts 
havins:  equity  jurisdiction  from  administering  proper  relief  in  a  case 
showing  a  state  of  facts  which  formerly  were  sufficient  to  authorize 
a  court  of  chancery  to  act.  Bar  licit  v.  Drciv,  60  Barb.  (N.  Y.) 
O48.  aflirmed,  57  N.  Y.  587.  The  case  of  Graham  v.  Raihvay  Co., 
10  Wis.  459,  would  seem  to  support  the  projiosition  that  the  pro- 
ceeding supplementary  to  execution  provided  by  the  statute  of  that 
state  superseded  the  remedy  by  creditors'  bills,  and  was  exclusive. 
That  case,  however,  has  not  been  followed  by  the  courts  of  that  state. 
The  decision  of  the  case  in  which  the  rule  there  laid  down  was 
invoked  was  put  upon  other  grounds,  and  the  remedy  by  creditors' 
bills  has  been  restored  long  since  in  that  jurisdiction  by  legislative 
enactment.  Seymour  v.  Briggs,  11  Wis.  196;  Gates  v.  Boomer,  Vj 
Wis.  455.  The  cases  cited  by  the  respondent  from  the  California 
reports  do  not  sustain  his  contention.  In  that  state  creditors'  bills 
have  always  been  maintainable.  Ba)zer  v.  Bartol,  6  Cal.  483 ;  Mar- 
shall V.  Biishanan,  35  Cal.  264.  Such  is  also  the  rule  in  Colorado. 
Allen  V.  Tritch,  5  Colo.  222;  Fraserv.  Smelting  Co.,  5  Fed.  Rep.  163. 
And  also  in  Kansas.  Liides  v.  Hood]  29  Kans.  49. 

The  complaint  in  the  case  at  bar  contains  all  the  allegations 
necessary  under  the  code,  or  which  were  formerly  required  by  the 
courts  having  equity  jurisdiction  in  creditors'  suits  brought  to  set 
aside  fraudulent  conveyances  as  obstructions  to  an  execution  at  law, 
and  is  sufficient.  The  demurrer,  therefore,  must  be  overruled,  and 
the  pro  forma  judgment  of  the  District  Court  reversed,  with  leave 
to  the  defendants  to  answer  within  thirty  days,  on  payment  of  costs 
and  disbursements.  All  the  justices  concurring. 


SECTION  12.   EXECUTION  AGAINST  THE  PERSON 

FORSYTHE  v.  WASHTENAW 

Circuit  Judge,  1914 

180  Mich.  633 

Brooke,  J. :  Relator  prays  for  the  issuance  of  a  writ  of  manda- 
mus against  respondent  requiring  him  to  recall  and  quash  a  writ  of 
capias  ad  satisfaciendum.  The  antecedent  facts  are  briefly  as  fol- 
lows: One  Delia  Anthony  brought  suit  against  relator  and  another 
in  an  action  of  trespass  upon  the  case.  The  suit  was  commenced  by  a 
summons,  and  the  declaration  charged  relator  with  fraud.  Under  a 
plea  of  the  general  issue,  the  parties  went  to  trial,  and  a  judgment 
was  rendered  against  relator  on  the  27th  day  of  October,  191 3.  On 
the  24th  day  of  November,  191 3,  an  execution  was  issued  upon  said 
jud^ncnt,  jmade  returnable  January  15,  1914.   Under  date  of  Janu- 


FORSYTHE   V.    WASHTENAW  789 

ary  lo,  1914,  the  sheriff  returned  the  execution  nulla  bona.  On 
January  12,  1914,  a  writ  of  capias  ad  satisfaciendum  was  issued, 
although  the  record  is  silent  as  to  the  application  therefor.  The  re- 
lator vv^as  arrested  upon  said  writ  and  on  January  13,  1914,  gave 
a  bond  in  the  penal  sum  of  $7,500  to  the  jail  limits  of  the  county 
of  Washtenaw.  On  January  19th  relator  made  a  motion  for  an 
order  recalling  and  quashing  said  writ  of  capias  ad  satis- 
faciendum.''* 

It  is  the  claim  of  relator  that  plaintiff,  Delia  Anthony,  having 
commenced  her  action  by  summons  instead  of  by  a  capias  ad  re- 
spondendum, as  she  might  have  done  under  section  9996,  3  Conip. 
Laws,  is  now  precluded  from  having  recourse  to  a  writ  of  capias 
ad  satisfaciendum,  although  she  would  have  been  entitled  to  the 
latter  writ  had  she  used  the  more  rigorous  process  as  commence- 
ment of  suit.  The  precise  question  seems  never  to  have  been  raised 
in  this  court.  3  Comp.  Laws,  section  10301,  provides:  "Such  execu- 
tion may  be  either  (i)  Against  the  goods  and  chattels,  lands  and 
tenements  of  the  party  against  whom  such  judgment  was  recovered; 
or  (2)  against  the  body  of  such  party,  in  the  cases  authorized  by 
law."  The  statutes  are  silent  as  to  the  cases  in  which  a  body  execu- 
tion may  issue  in  this  State.  It  is  therefore  necessary  to  determine 
the  question  from  an  examination  of  the  precedents  arising  under 
the  common  law. 

In  an  early  case.  Fuller  v.  Bowker,  11  Alich.  204,  Justice  Christ- 
iancy  used  the  following  language  at  page  210 :  "We  understand  the 
common-law  rule  to  have  been  that  a  capias  ad  satisfaciendum 
could  be  issued  in  tliose  cases,  and  those  [cases]  only,  in  which  the 
suit  might  have  been  commenced  by  capias  ad  respondendum,  or, 
in  other  words,  when  the  latter  was  the  immediate  process  upon  the 
original  writ.  The  only  exception  to  this  seems  to  have  been  when 
the  defendant  was  an  attorney  or  officer  of  the  court;  in  such  case 
he  might  be  taken  in  execution,  though  sued  by  bill.  2  Arch.  Pr.  276. 
Originally  the  capias  ad  satisfaciendum  lay  at  common  law  only  in 
trespass  vi  _et  armis.  But  as  statutes  were  subsequently  passed,  giv- 
ing the  capias  ad  respondendum  as  the  mesne  process  in  other  cases, 
the  capias  ad  satisfaciendum  was  held  to  follow,  as  a  common-law 
incident.  But  in  no  case  was  the  latter  allowed  without  the  former 
unless  directly  authorized  by  statute,  i  Sellon's  Pr.  513;  Comyn's 
Dig.  Execution,  ch.  9;  Tomlin's  Law  Diet,  title  'Capias':  i  Arch. 
Pr.  276."  ^5 


'^Part  of  the  opinion  is  omitted. 

"The  writ  of  capias  ad  satisfaciendum  commands  the  sheriff  to  take 
the  body  of  the  defendant,  and  him  safely  keep,  so  that  he  may  have  his 
body  in  court,  to  satisfy  the  plaintiff  the  amount  of  his  judgment.  At 
common  law,  the  king  when  plaintiff  could  have  execution  against  the  de- 
fendant's body,  land  and  goods,  but  a  subject  could  have  execution  against 
the  body  of  the  defendant  in  trespass  vi  et  armis  only.  To  secure  the  ap- 
pearance of  defendants  the  writ  of  capias  ad  respondendum  was  given  by 
the  statute  of  52  Hen.  Ill,  ch.  23  (Marlebridge)  and  of  13  Edw.  I,  ch.  11 
(Westminster  II),  in  actions  of  account,  by  the  statute  of  25  Edw.  Ill,  ch.  17, 
in  debt  and  detinue,  and  by  the  statute  of  19  Hen.  VII,  ch.  9,  in  actions  on  the 
case.    The  capias  ad  satisfaciendum  is  not  expressly  given  by  statute  but  the 


~90  EXECUTION 

In  I  Scllon's  Pr.,  p.  513,  cite  J  by  Judge  Christiancy,  it  is  said: 
"A  capias  ad  satisfaciendum,  by  the  common  law,  lay  only  in  tres- 
pass vi  ot  armis,  being  a  direct  and  wilful  wrong,  and  wherein  the 
capias  ad  respondendum  was  the  immediate  process  upon  the  orig- 
inal writ.  lUit  several  statutes  having  given  the  ])rocess  of  capias  ad 
res[H)ndcndum,  as  the  mesne  jirocess  upon  the  original  writ  in  other 
personal  actions,  than  those  committed  vi  et  armis,  the  capias  ad 
satisfaciendum  has  become  an  executory  process  in  them  also,  it 
being  held  as  a  rule  that,  where  a  capias  lies  in  process  before 
judgment,  it  will  lie  in  execution  u]ion  the  judgment  itself."  In  i 
Burrill's  Pr.,  p.  308,  we  find  the  following:  "It  may  be  considered 
a  general  rule,  that  a  capias  ad  satisfaciendum  will  lie  in  all  cases 
where  a  (bailable)  capias  ad  respondendum  might  have  been  used 
as  the  process  to  bring  the  defendant  before  the  court."  Citing*  i 
Arch.  Pr.  303.  In  i  Tomlin's  Law  Diet.,  at  p.  287,  after  describing 
the  writ,  tlie  writer  says :  "Properly  speaking,  this  writ  can  not  be 
sued  out  against  any  but  such  as  were  liable  to  be  taken  upon  the 
capias  mentioned  in  the  preceding  article."  Citing  3  Rep.  12;  M.  O. 
767.    See,  also,  2  Tidd's  Pr.  (2d  Am.  ed.),  p.  1025;  Graham's  New 


courts  have  held  that  wherever  a  capias  lies  in  process  before  jiidp;ment  it 
\\[\\  lie  in  execution  upon  the  judgment  itself.  3  Salk.  286;  Y.  B.  43  Edw.  Ill 
I ;  Y.  B.  49  Edw.  Ill  2;  Y.  B.  2  Hen.  IV  6;  Y.  B.  7  Hen.  VI  45b;  Co.  Litt. 
290b;  Harbet's  Case,  3  Coke  12  (15S4)  ;  Cassidy  v.  Stewart,  9  D.  P.  C.  366, 
5  Jur.  25,  2  Scott  (N.  R.)  432  (1841)  ;  Kintzell  v.  Olsen  (N.  J.),  yz  Atl.  962 

(^909). 

The  evils  incident  to  imprisonment  for  debt  have  led,  both  in  England 
and  the  United  States,  to  the  passage  of  statutes  that  have  greatly  diminished 
the  number  of  cases  in  which  the  defendant  can  be  arrested  and  imprisoned 
in  civil  actions  to  enforce  paj-ment  of  money  demands. 

In  England  the  Act  of  32  and  33  Vict.,  ch.  62  (Debtor's  Act  of  1869), 
provides  that  no  person  shall  be  arrested  or  imprisoned  for  making  default  in 
the  payment  of  a  sum  of  money  except  defaults  in  the  payment  of  (i) 
penalties;  (2)  sums  recovered  summarilj'-  before  a  justice  of  the  peace; 
(3)  sums  ordered  to  be  paid  by  trustees  or  fiduciaries;  (4)  costs  ordered  to 
be  paid  by  a  solicitor  for  misconduct;  (5)  income  ordered  to  be  paid  by  a 
bankruptcy  court;  (6)  sums  ordered  to  be  paid  in  instalments  by  the  court. 
In  re  Edgcome,  L.  R.  (1902)  2  K.  B.  403.  Rules  of  Supreme  Court,  Order 
XLII,  rule  3.  But  no  person  may  be  imprisoned  in  any  excepted  case  for 
more  than  one  year.  Cliurcli's  Trustee  V.  Hibbard,  L.  R.  (1902)  2  Ch.  Div. 
784.  Subject  to  prescribed  rules,  the  court  may  commit  to  prison  for  a  term 
not  exceeding  six  weeks,  or  until  payment  of  the  sum  due,  any  person  who 
makes  default  in  the  payment  of  a  debt  or  instalment  of  a  debt  due  from 
him  in  pursuance  of  any  order  or  judgment  of  a  competent  court.  But  such 
jurisdiction  shall  only  be  exercised  where  ii  is  proved  to  the  satisfaction 
of  the  court  that  the  person  making  default  either  has  or  has  had  since  the 
date  of  the  order  or  judgment  the  means  to  pay  the  sum  in  respect  of  which 
he  has  made  default,  and  has  refused  or  neglected  to  pay  the  same.  Esdailc 
v.  Visser,  L.  R.  (1880)  13  Ch.  Div.  421,  41  L.  T.  745,  28  W.  R.  281;  In  re 
Wray,  L.  R.  (1887)  36  Ch.  Div.  138  (1S87);  Preston  v.  Etherington,  L.  R. 
(1887)  37  Ch.  Div.  104;  Harris  v.  Slater,  L.  R.  (1888)  21  Q.  B.  Div.  359, 
57  L.  J.  Q.  B.  539,  27  W.  R.  56;  Stonor  v.  Fo-wle,  L.  R.  (1887)  13  App.  Cas.  20. 
The  state  statutes  restricting  execution  against  the  person  of  the  defendant 
to  specified  causes  of  action  vary  greatly  in  their  terms.  Generally,  such  pro- 
ceedings are  allowed  in  actions  of  tort  or  where  the  defendant  has  been 
guiltv  of  fraud  or  professional  misconduct.  See  Freeman  on  Executions 
(3d  ed.),  §  451;  U.  S.  Comp.  Stat.  (1913),  §  1636;  N.  Y.  Code  Civ.  Proc.  §§ 
4S7,  549,  550;  X.  J.  Practice  Act  of  IQ03,  §  iSo ;  Mass.  Rev.  L.  (1902),  ch.  168; 
Pa.  Act  of  July  12,  1842.  P.  L.  339,  §  i,  P.  &  L.  Dig.  (2d  ed.)  5795. 


FORSYTHE   V.    WASHTENAW  79I 

York  Pr.,  p.  410.  In  4  Comyn's  Digest,  at  page  228,  we  find  the 
f olloTving :  '"'So  execution  may  be  by  capias  ad  satisfaciendum 
against  the  body  of  the  defendant  in  all  cases  where  a  capias  ad 
respondendum  lies  in  process." 

Our  Constitution,  article  2,  section  20,  provides:  "No  person 
shall  be  imprisoned  for  debt  arising  out  of  or  founded  on  a  con- 
tract, express  or  implied,  except  in  cases  of  fraud  or  breach  of 
trust,  or  of  moneys  collected  by  public  officers  or  in  any  professional 
employment.  No  person  shall  be  imprisoned  for  a  military  fine  in 
time  of  peace." 

It  Is  obvious  that  the  plaintiff  In  the  principal  case  might  have 
proceeded  against  relator  under  the  Constitution  as  well  as  under  the 
statute  cited,  supra,  by  causing  to  issue  a  writ  of  capias  ad  respond- 
endum as  commencement  of  suit.  .Should  she  now  be  deprived  of  her 
right  to  the  writ  of  capias  ad  satisfaciendum  because  of  having 
chosen  the  less  drastic  writ  for  her  mesne  process?  We  are  of  the 
opinion  that  she  should  not. 

In  the  case  of  Hunt  v.  Burdlck,  42  Vt.  610,  It  is  said :  "There  is 
nothing  in  our  statutes  or  practice  that  requires  the  establishment  of 
a  rule  that  the  plaintiff  in  an  action  of  tort  shall  be  deprived  of  the 
right,  which  the  law  gives  him,  of  taking  an  execution  against  the 
body  of  the  judgment  debtor,  because  he  omits  to  Issue  his  original 
writ  against  the  body.  What  operates  so  manifestly  as  matter  of 
ease  and  favor  to  the  defendant,  ought  not  to  be  the  ground  of  for- 
feiture of  the  rights  of  the  plaintiff." 

The  case  of  LapJiam  v.  Oakland  Circuit  Judge,  170  Mich.  564, 
cited  on  behalf  of  respondent  as  autliority,  is  not  controlling  for  the 
reason  that  in  that  case  the  question  considered  was  only  whether 
the  body  execution  had  been  seasonably  Issued.  The  basic  right  of 
the  plaintiff  to  the  writ  was  not  cjuestioned. 

The  writ  Is  denled.'^^ 


_  "Where  the  right  to  aiTcst  is  determined  by  the  nature  of  the  cause  of 
action,  an  execution  against  the  person  may  issue  although  there  has  been 
no  previous  arrest.  Eames  V.  Stevens,  26  N.  H.  117  (1852)  ;  State  v.  Foote, 
83  N.  Car.  102  (1S80)  ;  Haskell  v.  Jewell,  59  Vt.  91,  7  Atl.  545  (18S6)  ;  Roeber 
V.  Dawson,  22  Abb.  N.  C.  (N.  Y.)  73,  3  N.  Y.  S.  122,  21  N.  Y.  St.  160  (1888)  ; 
Carrigan  v.  Washburn,  18  N.  Y.  Civ.  Pro.  yj,  7  N.  Y.  S.  262,  25  N.  Y.  St. 
931  (1889)  :  K  alb  his  v.  Rimdell.  \?-,a  Pa.  102  iq  Atl.  492  (1890)  ;  Sawyer  v. 
Nelson,  44  IIT  App.  184  (1801')  :  Dnngan  v.  Kead.  167  Pa.  St.^^93.  31  Atl.  639 
(1895)  ;  Sherman  V.  Grinnell,  isgT^TYT^,  53  N.  E.  674O899)  ;  Martin  v. 
Hutto,  82  S.  Car.  432,  64  S.  E.  416  (1908)  ;  Kintsel  v.  Olsen  (N.  J.),  73  Atl. 
962  (1909);  Michael  v.  Leach,  166  N.  Car.  223,  81  S.  E.  760  (1914).  But 
where  the  grounds  of  arrest  are  extrinsic  to  the  cause  of  action,  an  execution 
against  the  person  can  not  issue  where  no  order  of  a-rrest  has  been  previously- 
obtained.  Smith  v.  Knapp,  30  N.  Y.  581  (1864)  ;  Ehvood  v.  Gardner,  45  N.  Y". 
349,  10  Abb.  Prac.  (N.  S.)  238  (1871)  ;  Stern  v.  Moss,  67  How.  Pr.  (N.  Y.) 
199.  6  Civ.  Pro.  R.  184  (1884);  Chapin  v  Foster,  loi  N.  Y.  i,  3  N.  E.  786 
(188.S)  ;  Griffith  V.  Hubbard,  9  S.  Dak.  15,  67  N.  W.  850  (1896)  ;  Fenton  v. 
Duckworth,  131  App.  Div.  291,  115  N.  Y.  S.  686  (1909). 


79-2  KXF.CUTION 

OSMAN  r.  CROWLEY 

Supreme  Court  of  Nf,\v  York,  Arri.i.i.ATE  Division,   1905 

loi  Ai^t-  Div.  (.V.  V.)  597 

IxcRAiiAM,  J.:  The  iilainiilT,  an  infant,  eight  years  of  age, 
brought  til  is  action  to  recover  for  the  injuries  sustained  by  being  run 
over  by  a  hansom  cab,  the  proj^erty  of  tlie  defendant.  He  alleged  in 
tlie  complaint  that  "said  defendant  and  servant  were  negligent, 
reckless  and  careless  and  unskillful  in  the  management  and  opera- 
tion of  said  hansom  vehicle  and  the  management  and  control  of  said 
horse  or  horses  and  in  the  manner  of  driving  the  same  and  in  conse- 
quence thereof  and  without  fault  on  the  jiart  of  the  plaintiff  he  was 
knocked  violently  to  the  ground  by  said  horse  and  vehicle  and  run 
o\er" ;  that  "solely  by  reason  of  the  defendant's  negligence  as  afore- 
said plaintiff  was  run  over,"  and  that  by  reason  thereof  the  plaintiff 
sustained  damage.  An  answer  was  interposed  which  was  substan- 
tially a  denial  of  the  allegations  of  the  complaint.  The  action  was 
tried  and  a  verdict  rendered  for  the  plaintiff  for  the  sum  of  $3,000, 
upon  which  judgment  was  entered.  I^xecution  against  the  property 
of  the  defendant  having  been  returned  unsatisfied,  an  execution 
against  the  person  was  issued,  whereupon  he  moved  to  set  aside  this 
execution  on  the  ground  that  the  same  "is  irregular  and  void  for  the 
reason  that  no  order  of  arrest  was  or  could  have  been  issued  in  this 
action  against  the  defendant."  This  motion  was  denied  and  the  de- 
fendant appeals. 

The  right  to  issue  an  execution  depends  upon  the  Code  of  Civil 
Procedure.  Section  1487  provides  tliat  an  execution  against  the 
person  of  the  judgment  debtor  may  be  issued  thereupon  (Subd.  i) 
where  the  plaintiff's  right  to  arrest  the  defendant  depends  upon 
the  nature  of  the  action,  and  (Subd.  2)  in  any  other  case  where  an 
order  of  arrest  has  been  granted  and  executed  in  the  action.  Sec- 
tion 549  of  the  Code  of  Civil  Procedure  provides  that  tlie  defendant 
may  be  arrested  in  an  action  brought  to  recover  damages  for  a 
personal  injury.  Section  3343  provides  that  "In  construing  this  act 
.  .  .  9.  A  'personal  injury'  includes  libel,  slander,  criminal  con- 
versation, seduction  and  malicious  prosecution ;  also  an  assault, 
battery,  false  imprisonment,  or  other  actionable  injury  to  the  per- 
son either  of  the  plaintiff  or  of  another."  Thus  in  an  action  to 
recover  damages  for  actionable  injury  to  the  person  of  tlie  plaintiff, 
the  defendant  may  be  arrested,  and  a  judgment  in  such  an  action 
may  be  enforced  by  execution  against  the  person,  as  the  plaintift''s 
right  to  arrest  the  defendant  depends  upon  the  nature  of  the  action. 
This  construction  was  given  to  these  provisions  of  the  Code  of 
Civil  Procedure  by  the  General  Term  of  the  New  York  Superior 
Court  in  Rilterman  v.  Ropes,  52  N.  Y.  Super.  Ct.  237. 

The  defendant  claims  that  the  right  to  arrest  in  an  action  to 
recover  for  personal  injuries  depends,  not  upon  the  nature  of  the 


OSMAN    V.    CROWLEY  793 

action,  but  upon  proof  that  the  defendant  was  personally  negligent, 
as  distinguished  from  a  liability  created  by  the  negligence  of  his 
servant,  a  distinction  which  I  can  not  find  in  the  provisions  of  the 
Code  of  Civil  Procedure.  There  are  two  cases  which  sustain  the 
defendant's  contention.  The  first  is  the  case  of  Lasche  v.  Dearing, 
23  Misc.  (N.  Y.)  722,  a  decision  of  the  Special  Term  of  the  Su- 
preme Court.  The  second  is  Davids  v.  Brooklyn  Heights  R.  R.  Co., 
45  Misc.  208,  92  N.  Y.  S.  220,  a  decision  of  the  County  Court  of 
Kings  County.  In  Lasche  v.  Dearing  the  court  construes  the  words 
"other  actionable  injury  to  the  person"  in  subdivision  9  of  section 
3343  of  the  Code  of  Civil  Procedure  as  applying  only  to  cases  of 
the  same  character  as  those  before  specifically  mentioned  in  the  sub- 
division of  the  sections ;  thus  restricting  the  definition  of  the  words 
"personal  injury"  to  a  case  where  the  cause  of  action  is  based  upon 
"affirmative  and  active  wrong  with  more  or  less  of  turpitude,  ac- 
cording to  the  character  of  the  wrong."  But  this  limitation  is  not 
specified  in  the  section  which  defines  words  that  are  used  in  the  Code 
of  Civil  Procedure ;  and  if  this  construction  could  be  sustained  there 
would  be  no  action  for  personal  injuries  regulated  by  the  Code  of 
Civil  Procedure,  unless  the  defendant  personally  participated  in  the 
act  which  caused  the  injury.  Section  549  of  the  Code  of  Civil  Pro- 
cedure gives  the  plaintiff  in  an  action  for  a  "personal  injury"  a  right 
to  arrest  the  defendant.  Subdivision  9  of  section  3343  of  the  Code  of 
Civil  Procedure  defines  the  words  "personal  injury"  as  used  in  said 
code.  This  is  not  of  a  penal  nature,  but  is  a  general  provision  applica- 
ble to  the  whole  Code  of  Civil  Procedure,  simply  defining  the  words 
"personal  injury"  when  there  used  and  includes  any  action  brought 
to  recover  for  injury  to  the  person  of  an  individual.  The  case  of 
Davids  v.  Brooklyn  Heights  R.  R.  Co.,  45  Misc.  208,  92  N.  Y.  S.  220, 
is  based  upon  an  alleged  distinction,  which  the  defendant  here  seeks 
to  sustain,  between  an  action  for  personal  injury  based  upon  the  per- 
sonal act  of  the  defendant  and  that  based  upon  the  act  of  his  servant, 
a  distinction  which  is  not  justified  by  any  provision  of  the  Code  of 
Civil  Procedure.  It  is  the  nature  of  the  cause  of  action  which  has  re- 
sulted in  the  judgment  sought  to  be  enforced  that  controls.  That 
cause  of  action  is  for  a  "personal  injury,"  whether  the  injury  to 
the  person  is  caused  by  the  personal  act  of  the  defendant  or  by  the 
act  of  his  servant  for  which  he  is  responsible.  I  think,  therefore, 
that  the  execution  was  properly  issued  and  that  the  order  appealed 
from  should  be  affirmed,  with  ten  dollars  costs  and  disbursements. 
Van  Brunt,  P.  J.,  O'Brien  and  Hatch,  JJ.,  concurred;  Patter- 
son, J.,  concurred  in  result.''^ 

"Accord:  Rittcrman  v.  Ropes,  52  N.  Y.  Super.  Ct.  236  (1885);  Rom::_^ 
herger  v.  Henry,  167  Pa.  St.  314,  31  Atl.  634  (1895)  ;  Gallagher  v.  Dolan,  27 
Misc.  122,  57  N.  Y.  S.  334,  6  N.  Y.  Ann.  Cas.  412  (1899)  ;  People  ex  rel.  Har- 
ris V.  Gill,  85  App.  Div.  192,  83  N.  Y.  S.  135  (1903),  Affd.  176  N.  Y.  606,  68 
N.  E.  1 122.  See  also  Dclamatcr  v.  Russell,  4  How.  Pr.  (N.  Y.)  234,  2  Code 
Rep.  147  (1850)  ;  Judd  v.  Ballard,  66  Vt.  668,  30  All.  96  (1S94)  ;  In  re  Smyser, 
182  111.  App.  208  (1913).  And  compare  Ex  parte  Prader,  6  Cal.  239  (1856); 
Wagner  v.  Lathers,  26  Wis.  436  (1870)  ;  Cohen  v.  Fox,  26  Colo.  App.  55,  141 
Pac.  504  (1914). 


794  EXECUTION 

IMILLER  r.  TARNELL 

Court  of  CmrMON  I'i.kas,  1S15 

2  Marsh.  78'* 

The  plaintliY  in  this  aclion  liad  sued  out  a  writ  of  fieri  facias 
on  the  tliird  of  July  last,  directed  to  the  sheriff  of  Cornwall,  to  levy 
£184  IS.  3d.,  and  returnable  on  the  sixth  of  November;  by  virtue 
of  which  the  sheriff,  on  the  thirteenth  of  July,  took  possession  of  a 
mine,  together  with  the  implements  for  working  it,  belonging  to 
the  defendant,  Elliot,  and  kept  possession  of  them  till  the  twenty- 
ninth  of  July,  when  the  plaintiff  finding  that  the  property  was  not 
sutlicient  to  satisfy  the  debt,  the  execution  was  withdrawn.  On  the 
fourteenth  of  August,  the  plaintiff  issued  a  capias  ad  satisfaciendum 
directed  to  the  sheriff"  of  Middlesex,  under  which  Elliot  was  taken 
in  execution  on  the  seventeenth  of  August. 

Mr.  Serjt.  Lens,  on  a  former  day  in  this  term,  obtained  a  rule 
to  show  cause  why  the  writ  of  capias  ad  satisfaciendum  should 
not  be  set  aside  for  irregularity,  and  the  defendant,  Elliot,  be  dis- 
charged of  custody  on  the  ground  that  the  plaintiff  was  not  entillcd 
to  sue  out  the  second  writ  till  the  first  had  been  returned.  Having 
once  executed  the  former  writ,  he  was  not  to  assume  that  it  was 
imj)roductive;  he  should  have  returned  it  to  the  court  and  showed 
that  it  was  so ;  and  then  he  might  have  adopted  the  higher  remedy, 
for  so  much  of  the  debt  as  remained  unsatisfied  by  the  first  writ. 
He  cited  Coppendale  v.  Dehonaire,'^^  where  the  court  set  aside  a 
testatum  fieri  facias,  which  had  been  sued  out  after  the  execution, 
but  before  the  return  of  the  fieri  facias. 

Mr.  Serjt.  Best  now  showed  cause  against  the  rule,  and  con- 
tended that  the  taking  possession  of  goods,  and  giving  them  up 
again,  was  no  levy ;  it  was  only  an  attempt  to  levy ;  the  writ,  there- 
fore, had  not  been  executed,  and  consequently  there  was  no  neces- 
sity for  returning  it.  As  to  the  case  from  Barnes,  he  admitted  that 
a  testatum  fieri  facias  could  not  be  sued  out  before  the  fieri  facias 
was  returned,  because  it  was  a  continuance  of  the  same  process, 
and  whatever  might  be  done  under  the  testatum  might  also  be  done 
under  the  fieri  facias.  The  capias  ad  satisfaciendum,  however,  was 
no  continuance  of  the  former  execution. 

Lord  Chief  Justice  Gibbs:  There  is  no  doubt  that  the  plain- 
tiff, having  sued  out  a  fieri  facias,  may,  if  he  please,  omit  to  exe- 
cute it,  and  take  out  a  capias  ad  satisfaciendum,  before  the  former 
writ  is  returnable;  and  it  is  equally  clear  that  if  he  completely 
execute  the  fieri  facias,  he  can  not  sue  out  a  capias,  until  he  has  re- 
turned the  first  writ.  The  present  is  a  middle  case;  for  he  has 
taken  out  a  fieri  facias,  under  which  the  sheriff  did  actually  seize 
the  goods,  so  that,  as  far  as  concerns  the  defendant,  he  has  been 


"S.  C.  6  Taunt.  370. 

'Barnes'  Notes  213  (circa  I757)- 


MILLER   V.    PARNELL  795 

deprived,  for  a  time,  of  property  to  a  certain  amotrtit;  and  the 
question  is,  whether  after  the  goods  had  been  seized,  the  plaintiff 
could  change  his  mind,  desert  his  remedy  against  the  goods,  and 
take  out  execution  against  the  person.  If  he  could  do  so,  it  would 
be  a  great  hardship  on  the  defendant.  The  law  is,  that  if  a  man 
seize  the  goods  of  his  debtor,  he  can  not  take  his  body  also,  except 
for  the  residue  of  the  debt;  and  there  must  be  something  to  bind 
him  as  to  that  residue,  viz.,  the  return  of  the  sheriff  to  the  first 
writ.  But  it  would  be  great  injustice  to  suffer  the  plaintiff  to  seize 
the  goods,  and  keep  possession  of  them,  thereby  putting  the  defend- 
ant to  great  inconvenience,  and  then  to  alter  his  mind,  and  take  the 
defendant  himself  in  execution.  On  the  other  hand,  it  is  no  hard- 
ship for  the  plaintiff  to  elect  on  w4iich  writ  he  will  take  out  execu- 
tion. We  will  not  prevent  him  from  suing  out  both  writs  at^  the 
same  time,  but  when  once  he  has  made  his  election,  and  begun  to 
execute  one  of  them,  I  am  of  opinion  that  he  ought  to  be  bound  by 
such  inceptive  execution. ^° 

The  rest  of  the  court  concurred. 

Rule  absolute,  the  defendant  engaging  not  to  bring  any  action. 


^°At  common  law  a  fieri  facias  and  a  capias  ad  satisfaciendum  may  issue 
at  the  same  time  against  the  goods  and  person  of  the  defendant  and  the  plain- 
tiff may  use  either  the  one  or  other  as  he  thinks  advisable.  Prijurose  V. 
Gibson,  2  D.  &  R.  193  (1822)  ;  Steele  v.  Murray,  1  Blacki.  (Ind.)  179  (1822)  ; 
Cary  v.  Gregg,  3  Stew.  (Ala.)  433  (1831)  ;  Davies  v.  Scott,  2  Miles  (Pa.)  52 
(1836)  ;  Knight  v.  Coleby,  5  M.  &  W.  274  (1839)  ;  Leavison  v.  Rosenthal,  5  Ky. 
L.  132  (1883).  But  he  can  not  have  a  double  satisfaction.  If  a  capias  ad 
satisfaciendum  is  sued  out  and  the  debtor  taken,  the  plaintiff  can  not  have  a 
fieri  facias  or  elegit  unless  the  defendant  die  in  execution,  escape  or  be 
rescued.  Tidd's  Pr.  (9th  ed.)  996;  Stamper  v.  Hodson,  8  Mod.  302  (1724)  ; 
U.  S.  V.  Stansbiiry,  i  Pet.  (U.  S.)  573  (1828)  ;  David  v.  Blundcll,  40  N.  J.  L. 
372  (1878).  And  if  the  plaintiff  execute  his  fieri  facias  he  can  not  take  the 
defendant  on  a  capias  ad  satisfaciendum  until  the  fieri  facias  is  returned  show- 
ing that  the  debt  was  not  satisfied  thereby.  Wilson  v.  Kingston,  2  Chitty. 
203  (1816);  Biirk  V.  M'Fall  2  Browne  (Pa.)  143  (1811)  ;  Edmond  v.  Ross, 
9  Price  5  (1821)  ;  Cutler  v.  Cotvers,  3  (JowTlT^.  Y.)  30  (1824)  ;  Champenois  v. 
White,  I  Wend.  (N.  Y.)  92  (1828)  ;  Miller  v.  Bagwell,  3  McCord  (S.  Car.) 
429  (1826),  but  contra  Mazyck  v.  Coil,  2  Bailey  (S.  Car.)  loi  (1831); 
Turner  v.  Walker,  3  Gill  &  Johns.  (Md.)  2)77<  ~~  Am.  Dec.  329  (1831); 
Lawes  v.  Codrington,  i  Dowl.  P.  C.  30  (1831)  ;  Hodgkinson  v.  Whalley,  2 
Cromp.  &  Jerv.  86  (1831)  ;  Chapman  v.  Bozdby,  8  M.  &  W.  249,  10  L.  J.  Ex. 
299  (1841),  distinguishing  Dicas  v.  Warne,  10  Bing.  341  (1833)  ;  Andrezvs  v. 
Saunderson,  i  H.  &  N.  725  (1857). 

In  a  number  of  jurisdictions  an  execution  can  not  issue  against  the 
person  where  the  defendant  has  property  sufficient  to  satisfy  the  debt, 
Bulkley  V.  Finch,  2>7  Conn.  71  (1870)  ;  Hecker  v.  J  arret.  3  Binn  (Pa.)  404 
(1811);  Bank  of  Ppnn<:yh!nnin  v.  J.atshaw.  q  Serg.  &  R.  (Pa.)  .9  (1822): 
Berry  v.  Hamill,  12  Serg.  ik.  R.  (Pa.)  210  (1824);  or  unless  an  execution 
against  his  property  has  been  returned  unsatisfied.  McDonald  v.  V/ilkie,  13 
III.  22,  54  Am.  Rep.  423  (1851)  ;  Craig  v.  Adair,  22  Ga.  373  (1857)  ;  In  re 
Mo-wry,  12  Wis.  52  (i860)  ;  Noe  v.  Christie,  15  Abb.  Pr.  (N.  S.)  (N.  Y.)  346 
(1874)  ;  Chaffee  v.  Handy,  36  La.  Ann.  22  (1884)  ;  Baker  v.  State,  109  Ind. 
47.  9  N.  E.  711  (1886)  ;  Bergman  v.  Noble,  45  Hun.  (N.  Y.)  133,  19  Abb.  N. 
Cas.  62,  12  CivJ^ro.  R.  256,  10  N.  Y.  St.  27  (1887)  ;  Fluntington  v.  Metsger,  158 
111.  272,  41  N.  t.  881  (1895)  ;  Carroll  v.  Montgomery,  128  N.  Car.  278,  38  S.  E. 
874  (1901)  ;  Fisher  v.  Young,  41  Misc.  552,  85  N.  Y.  S.  115  (1903).   But  this 


796  I.XKCI'TION 


TIIOMrSON'S  CASE 

Supreme  Judicial  Court  of  INIassaciiusetts,  1877 
122  Mass.  428 

Habeas  corpus.  At  the  hearing  before  Colt,  J.,  it  appeared 
that  the  petitioner,  a  resident  of  Charlestown,  in  the  state  of  New 
Hampshire,  was  arrested  on  ]\Iarch  20,  1877,  and  was  now  held, 
by  a  deputy  of  the  sheriff  of  Suffolk,  upon  an  execution  issued  upon 
a  judgement  of  this  court  against  him,  in  favor  of  a  citizen  of  the 
commonwealth,  while  he  was  in  attendance  as  a  witness  in  his  own 
behalf  before  a  joint  committee  of  the  legislature,  having  peti- 
tioned for  tlie  allowance  of  a  claim  made  by  him  against  the  com- 
monwealth ;  that  his  claim  had  been  presented  to  the  committee, 
and  was  under  discussion  on  that  day  while  he  was  present;  that 
its  further  consideration  had  been  adjourned  to  March  22,  1877; 
and  that  as  he  was  leaving  the  state  house,  and  after  he  had  got 
into  the  street,  he  was  arrested  on  the  execution.  It  also  appeared 
that  the  petitioner  had  not  been  summoned  as  a  witness,  but  the 
judge  found  that  he  was  in  attendance  in  good  faith  solely  for 
the  purpose  of  presenting  and  proving  his  claim,  and  with  the  in- 
tention of  returning  home  without  imnecessary  delay. 

The  petitioner  contended  that  he  was  exempt  from  arrest  and 
was  entitled  to  his  discharge.  The  judge  admitted  the  petitioner 
to  bail,  and  reserved  the  case  for  the  consideration  of  the  full  court.^^ 

J.  A.  Loring  and  C.  F.  Choate,  for  the  petitioner. 

A.  A.  Ranney  and  I.  R.  Clark,  contra. 

Gray,  C.  J. :  Parties  and  witnesses,  attending  in  good  faith  any 
legal  tribunal,  whether  a  court  of  record  or  not,  having  power  to 
pass  upon  the  rights  of  the  persons  attending,  are  privileged  from 
arrest  on  civil  process  during  their  attendance,  and  for  a  reasonable 
time  in  going  and  returning,  whether  they  are  residents  of  this 
state  or  come  from  abroad,  whether  they  attend  on  summons  or 
voluntarily,  and  whether  they  have  or  have  not  obtained  a  writ  of 
protection.  Walpole  v.  Alexander,  3  Doug.  45 ;  Meekins  v.  Smith, 
I  H.  Bl.  636;  Arding  v.  Flower,  8  T.  R.  534;  Spence  v.  Stuart,  3 


prohibition  is  for  the  debtor's  benefit  and  may  be  waived  by  him.  A^.  Y. 
Guaranty  Co.  v.  Rogers,  71  N.  Y.  377  (1877). 

In  Massachusetts  there  is  "one  form  of  execution  in  ordinary  personal 
actions,  which  is  framed  in  the  alternative  and  leaves  to  the  ofTicer  or  to  the 
creditor  under  whose  direction  he  acts,  a  choice  of  methods  for  the  service 
of  it.  This  writ  of  execution  commands  the  officer  to  levy  the  goods,  chattels, 
lands  and  tenements  of  the  debtor,  and  for  want  thereof  upon  his  body. 
The  creditor  can  not  proceed  under  the  execution  against  the  property  and 
against  the  body  of  the  debtor  at  the  same  time."  Per  Knowlton,  J.,  in  Hoar 
V.  Tildcn,  178  Mass.  157,  59  N.  E.  641  (1901).  See  also,  Lyman  v.  Lyman, 
II  Mass.  317  (1814)  ;  Davis  v.  Richmond,  14  Mass.  473  (1768)  ;  Twining  V. 
Foot,  59  Mass.  (5  Cush.)  512  (1850)  ;  Dooley  v.  Cotton,  3  Gray  (Mass.)  496 
(1855)  ;  Plympton's  Case,  196  Mass.  571,  82  N.  E.  715  (1907). 

"Part  of  the  opinion  of  the  court  is  omitted. 


THOMPSON  S    CASE  797 

East  89;  Ex  parte  Byne,  i  Ves.  &  E.  316;  Persse  v.  Persse,  5  H.  L. 
Cas.  671;  M'Neil's  Case,  6  ]\Iass.  245;   IVood  v.   Ncale,  5   Gray 
(Mass.)  538;  May  v.  Shumzuay,  16  Gray  (Mass.)  86. 
Petitioner  discharged  from  custody.^- 

"Accord :  Y.  B.  4  Edw.  IV  21 ;  Y.  B.  9  Hen.  VI  7 ;  Y.  B.  27  Hen.  VIII  20; 
Anonymous,  Latch  198;  Clarke  v.  Molyncnx,  i  Lev.  159  (1664)  ;  Lightfoot  v. 
Cameron,  2  \Vm.  B!.  11 13  (1776)  ;  Walpole  v.  Alexander,  3  Doug.  45  (1782)  ; 
Meekins  v.  5'mi//^  i  H.  Bl.  636  (1791)  ;  Walker  v.  H'e&i,  3  Anst.  941  (i797)  ; 
Arding  v.  Flower,  8  T.  R.  534  (1800)  ;  Ex  parte  King,  7  Ves.  Jr.  312  (1802)  ; 
Spence  v.  Stuart,  3  East  89  (1802);  Solomon  v.  Underhill,  i  Camp.  229 
(1808)  ;  Childcrston  v.  Barrett,  II  East  439  (1809)  ;  Li^^/  Case,  2  Ves.  &  Bea. 
374  (1814);  Rimmer  v.  Green,  I  M.  &  S.  638  (1813)  ;  Willingham  v.  l/cf- 
i"/2eiy.y,  6  Taunt.  3s6  (i8is)  ;  Randall  v.  Gurney,  i  Chitty  679  (1819)  ;  Pi7/ 
V.  Coombs,  5  B.  &  Ad.  1078  (1834)  ;  J^t'&&  v.  Taylor,  i  D.  &  L.  676  (1843)  ; 
Persse  v.  Persse,  S  H.  L.  Cas.  671  (1856);  Montague  v.  Harrison,  3  C.  B., 
N.  S.  292  (1857)  ;  Ex  parte  Cohbett,  7  El.  &  B.  955  (1857)  ;  Harris  v.  Gran- 
tham, I  Coxe  (N.  J.  L.)  142  (1792)  ;  Commonwealth  v.  Ronald,  4  Call.  (Va.) 
97  (1786)  ;  Ex  parte  Hurst,  4  Dall.  (U.  S.)  387,  i  L.  ed.  878,  i  Wash.  (C.  C.) 
186,  Fed.  Cas.  No.  6924  (1804)  ;  Norris  v.  Beach,  2  Johns.  (N.  Y.)  294 
(1807)  ;  Bours  v.  Tuckcrman,  7  Johns.  (N.  Y.)  538  (1811)  ;  Ex  parte  McNeil, 
6  Mass.  245  (1810)  ;  United  States  v.  Edme,  Q  Serg.  &_R.  (Pa.)_i47  (1822)  ; 
Sanford  v.  Chase,  3  Cow.  (N.  Y.)  381  (i824)T7n  reUickenson,  3  Harr. 
(Del.)  517  (1842)  ;  Vincent  \.  Watson,  l  Rich.  L.  (S.  Car.)  194  (1845)  ;  Seavcr 
V.  Robinson,  3  Duer.  (10  N.  Y.  Super.  Ct.)  622  (1854)  ;  Wood  v.  Neale,  71 
Mass.  (5  Gray)  538  (1855)  ;  Henegar  v.  Spongier,  29  Ga.  217  (1859)  ;  May  v. 
Shumway,  82  Mass.  (16  Gray)  86,  yj  Am.  Dec.  401  (1S60)  ;  Merrill  v.  George, 
23  How  Pr.  R.  (N.  Y.)  331  (1862)  ;  Huddeson  v.  Priser.  o  Phila.  (Pa.)  6; 
(1872)  semble;  Brett  v.  Brown,  13  Abb.  Pr.  (N.  S.)  (N.  Y.)  295  (1872); 
Ballinger  V.  Elliott,  72  N.  Car.  596  (1875)  ;  Person  v.  Gn>r,  66  N.  Y.  124,  23 
Am.  Rep.  35  (1876);  Ralstonjv.  Tobin.  Q  Pa.  Dist.  R.  2^4  (iQoo)  :  Ginn  v. 
Alney,  212  Mass.  486,  99  JM."Er276  (1912).  Contra  as  to  a  capias  ad  satisfacien- 
dum. Starret's  Case,  i  Dall.  (Pa.)  356  (1788);  Hanmim  y.  Askew,  i  Yeat^es 
(Pa.)  25  (1791).  In  some  cases  it  is  held  that  a  witness  whose  attendance  is 
voluntary  is  not  privileged  unless  he  is  a  nonresident.  Hardenbrook's  Case,  8 
Abb.  Pr.  (N.  Y.)  416  (1859)  ;  Dunganv.  Miller,  37  N.J.  L.  182  (1874;  Jones  v. 
Knauss,  31  N.  J.  Eq.  211  (1879).  By  the  weight  of  authority  the  defendant 
in  a  criminal  case  is  not  privileged  from  arrest  on  civil  process.  Anonymous, 
I  Dowl.  P.  C.  157  (1832)  ;  Goodman  v.  London,  2  Dowl.  P.  C.  504,  i  Ad.  &  El. 
378  (1834);  Williams  v.  Bacon,  10  Wend.  (N.  Y.)  636  (1834);  Jacobs  v. 
Jacobs,  3  Dowl.  P.  C.  675  (1835)  ;  Cojnmonwealth  v.  Z^onu'/^ 4  Clark  (Pa.) 
330  (1847)  ;  Hare  v.  Hyde,  16  Q.  B.  394  (18517;  Scott  v.  Curtis,  27  Vt.  762 
(1855)  ;  Moore  v.  Green,  73  N.  Car.  394,  21  Am.  Rep.  470  (1875)  ;  Lucas  v. 
Albee,  i  Denio  (N.  Y.)  666  (1845)  ;  Wood^v.  Boyle,  177  Pa.  St._62o,  35  Atl. 
853,  55  Am  St.  747  (1896)  ;  Rogers  v.  1< 0 gers^^J^SJ^ia .^03,  76  S.  E.  48  (1912)  ; 
Ex  parte  Henderson,  27  N.  Dak.  155,  145  N.  W.  574  (1914).  Contra:  Bours 
v.  Tuckerman,  7  Johns.  (N.  Y.)  538  (1811)  ;  Callans  v.  Sherry,  Ale.  &  N.  125 
(1832)  ;  Rex  V.  McLoughlin,  Ale.  &  N.  130  (1832)  ;  Rex  v.  Wigley,  7  C.  &  P. 
4  (1835)  ;  Gilpin  v.  Cohen,  L.  R.  4  Exch.  131  (1869)  ;  Moletor  v.  Sinned,  76 
Wis.  308,  44  N.  W.  1099,  7  L.  R.  A.  817,  20  Am.  St.  71  (1890).  And  it  is 
agreed  that  where  the  criminal  proceeding  is  a  mere  contrivance  by  the 
plaintiff  to  get  the  defendant  into  custody  in  the  civil  suit  he  will  be  dis- 
charged. Wells  v.  Gurney,  8  B.  &  C.  769  (1828)  ;  Addicksv.  Bush,  I  Phila. 
19,  7  Leg.  Int.  (Pa.)  7  (1850);  Snclling  v.  Watrous,  2  Faige  (iN.  Y.)  314 
(1830)  semble;  Benninghoff  v.  Oszvell,  37  How.  Pr.  (N.  Y.)  235  (1868). 

The  privilege  is  also  allowed  to  persons  while  engaged  in  the  perform- 
ance of  some  public  duty  as  a  member  of  Parliament  or  of  Congress,  Holiday 
v.  Pitt,  2  Str.  985  (1733)  ;  Coxp\._M'Clenachan,  3  Dall.  (Pa.).  478,  i  L.  ed.  687 
(1798);  foreign  consul,  Dufqnt  v.  Pichon,  4  DalL  C£a4-  321,  I  L.  ed.  851 
(1805);  soldier,  People  Tx  reTUaston  v.  Campbell,  40  N.  Y.  133  (1869); 
Squire's  Case,  12  Abb.  Pr.  (N.  Y.)  38  (1861). 


,,    o 


5S  EXECUTION 

HORNER  V.  BATTYN 

In  the  King's  Bench,  173S 
BuUcr's  Nisi  Priits  62 

Note:  That  bare  Avords  will  not  make  an  arrest,  but  if  the 
bailiff  touch  the  person,  it  is  an  arrest  and  the  retreat  a  rescous.^^ 
On  a  motion  for  an  attachment  against  three  persons  for  a  rescous 
of  a  person  taken  in  execution,  it  was  objected  that  there  had  not 
been  a  legal  arrest,  as  the  bailiff  had  never  touched  the  defendant. 

Per  curiam.  This  is  a  good  arrest;  and  if  the  bailiff  who  has  a 
process  against  one,  says  to  him  when  he  is  on  horseback,  or  in  a 
coach,  "You  are  my  prisoner,  I  have  a  writ  against  you,"  upon  which 
he  submits,  turns  back  or  goes  with  him,  though  the  bailiff  never 
touched  him,  yet  it  is  an  arrest,  because  he  submitted  to  the  process ; 
but  if  instead  of  going  with  the  bailiff,  he  had  gone  or  fled  from 
him,  it  could  be  no  arrest  unless  the  bailiff  had  laid  hold  of  him.^* 


^Geiincr  v.  Sparks,  I  Salk.  79,  6  Mod.  174  (1704). 

"An  officer  effects  an  arrest  of  a  person  whom  he  has  authority  to 
arrest,  by  laving  his  hand  on  him  for  the  purpose  of  arresting  him,  though 
he  mav  not  succeed  in  stopping  and  holding  him."  Per  Metcalf,  J.,  in  Whit- 
head  V.  Kcycs,  85  Mass.  495  (1862)  ;  Williams  &  Jones,  Temp.  Hardwicke, 
Lee  298  (1735)  ;  Sheriff  of  Hampshire  v.  Godfrey,  7  Mod.  288  (1738)  ;  Berry 
V.  Adamson,  6  B.  &  C.  528  (1827)  ;  9  D.  &  R.  558,  2  Car.  &  P.  503,  5  L-  J- 
(O.  S.)  K.  B.  215;  George  v.  Radfprd,  3  Car.  &  P.  464  (1828)  ;  Baldwin  v. 
Murphy,  82  111.  485  (1876);  Hawkins  v.  Commonzvealth,  14  B.  Mon.  (Ky.) 
395,  61  Am.  Dec.  I47n  (1854);  Sandon  v.  Jerzis,  El.  B.  &  El.  935  (1859). 
But  an  arrest  \vill  be  valid  without  physical  contact,  if  the  defendant  submits 
and  goes  with  the  officer.  Gold  v.  Bissell,  i  Wend.  (N.  Y.)  210,  19  Am.  Dec. 
480  (1828)  ;  Wood  V.  Lane,  6  Car.  &  P.  774  (1834)  ;  Lawson  v.  Buzines,  3 
Harr.  (Del.)  416  (1842);  Grainger  v.  Hill,  4  Bing.  N.  Cas.  212  (1838); 
Emery  v.  Chesley,  18  N.  H.  198  (1846)  ;  McCracken  v.  Ansley,  4  Strob.  (S. 
Car.)  I  (1849);  Jones  v.  Jones,  13  Ired.  (N.  Car.)  448  (1852);  Morse  v. 
Teetzel,  i  Ont.  Pr.  R.  369  (1854)  ;  Mozvry  v.  Chase,  100  Mass.  79  (1868)  ; 
Josselxn  v.  McAllister,  25  Mich.  45  (1872)  ;  Richardson  v.  Rittcnhouse,  40  N. 
J.  L.  230  (1S78).  In  Riisscn  v.  Lucas,  i  Car.  &  P.  153  (1824),  a  sheriff's 
officer  went  to  a  tavern  where  the  defendant  was  sitting  and  said  to  him: 
"I  want  you."  The  defendant  replied:  "Wait  for  me  outside  the  door,  and 
I  will  come  to  you."  The  officer  went  to  wait  and  the  defendant  got  away. 
In  an  action  by  the  plaintiff  against  the  sheriff  for  an  escape,  it  was  held 
that  there  was  no  arrest  and  a  nonsuit  v/as  entered.  Abbott,  C.  J.,  said:  "If 
Hamer  (the  defendant)  had  gone  even  into  the  passage  with  the  officer,  the 
arrest  would  have  been  complete." 

In  Kicholl  v.  Darley,  2  Y.  &  J.  399  (1828),  a  sheriff's  officer  went  to  the 
defendant's  house  to  arrest  him  on  capias  ad  satisfaciendum  and  read  the 
warrant  to  him,  v.hereupon  the  defendant  rushed  out  against  the  officer  who 
cancht  him  round  the  waist  but  was  unable  to  hold  him.  The  sheriff  v/as  held 
liable  in  debt  for  the  escape.  Garrov/,  B.,  said:  "Had  the  officer  done  his 
dutv,  had  he  chosen  a  better  opportunity,  or  had  he  been  armed  with  force 
sufficient  to  repel  opposition,  the  process  of  the  law  could  not  have  been 
intercepted."  See  People  ex  rel  McCallum  v.  Gebhardt,  154  Mich.  504,  118 
N.  W.  16  (1908),  where  the  sheriff  was  held  liable  for  the  escape  of  the  de- 
fendant, a  minor,  who  after  submitting  to  arrest,  was  rescued  by  a  trick. 
And  see  also,  Winhorne  v.  Mitchell,  in  N.  Car.  13,  15  S.  E.  882  (1892). 


GWINN    V.    HUBBARD  799 

GWINN  V.  HUBBARD 

Supreme  Court  of  Indiana,  1832 
3  Blackf.  (Ind.)  14 

Appeal  from  judgment  for  the  defendant  on  demurrer  to  the 
defendant's  plea  in  an  action  of  debt  by  the  plaintiff  against  the 
sheriff  for  the  escape  of  a  debtor  taken  in  execution  and  released. 

Stevens,  J. :  Three  points  have  been  raised  for  the  consideration 
of  the  court.®^ 

The  first  is,  v^hether  the  action  of  debt  M^ill  lie  in  this  state 
against  a  sheriff  for  an  escape  on  the  v^rit  of  capias  ad  satisfacien- 
dum. By  the  common  law  debt  only  lies  upon  contracts.  Escapes 
are  considered  torts,  and  are  so  treated  by  courts  of  justice.  Hence, 
at  common  law,  tlie  remedy  is  an  action  on  the  case.  The  statutes 
of  Westm.  I,  ch.  11  (13  Ed.  i)  and  i  Rich.  2,  ch.  12,  give  the  action 
of  debt  for  escape  on  the  writ  of  ca.  sa.,  and  if  these  statutes  are 
in  force  here  the  action  of  debt  lies.  This  state  has  adopted  not 
only  the  common  law  of  England,  but  also  all  the  statutes  in  aid 
thereof,  made  prior  to  the  fourth  year  of  the  reign  of  Jac.  i  (except 
the  second  section  of  the  sixth  chapter  43  Eliz.,  the  eighth  chapter  of 
the  13  Eliz.,  and  ninth  chapter  37  Hen.  8),  of  a  general  nature  and 
not  local  to  that  kingdom.  Those  statutes  are  affirmative ;  they  take 
away  no  common  law  remedy,  but  add  one,  leaving  the  party  at  lib- 
erty to  make  his  own  election  as  to  what  remedy  he  will  adopt,  and 
are  clearly  in  aid  of  the  common  law  and  in  full  force  here.  Steere 
V.  Field,  2  Mason  (C.  Ct.)  486;  Bonafous  v.  Walker,  2  T.  R.  129; 
Alsept  V.  Eylcs,  2  H.  Bl.  io8.«« 

The  second  point  is,  whether  the  sheriff  is  liable  for  escapes, 
until  the  county  authorities  have  erected  a  gaol  for  the  reception 
of  prisoners.  By  the  common  law,  each  county  has  two  prisons — 
one  for  the  reception  of  criminals  furnished  by  the  public  and 
called  public  gaols,  the  other  for  the  reception  of  debtors,  furnished 
by  the  sheriff  himself.  The  sheriff  may  appropriate  his  own  house 
for  that  use,  or  he  may  furnish  any  other  house  he  pleases  in  the 
bounds  of  his  county;  and  the  government  is  bound  to  indemnify 
him.  He  is  bound  at  his  peril  to  safely  keep  all  such  prisoners  in 
safe  custody,  until  the  debt  is  paid  or  the  prisoner  otherwise  legally 
discharged ;  and  to  enable  him  to  do  so,  the  whole  means  and  power 
of  the  county  are  at  his  disposal.    Nothing  except  public  enemies, 


''The  third  part  of  the  opinion  which  holds  the  commitment  of  the  debtor 
illegal  and  the  defendant  entitled  to  judgment  is  omitted. 

*°Where  the  action  of  debt  is  brought,  under  the  statutes,  the  plaintifF 
claims  the  sum  for  which  the  debtor  was  charged  in  execution.  But  the 
plaintifF  may,  at  his  election,  bring  an  action  on  the  case  and  claim  damages. 
Bonafous  v.  Walker,  2  T.  R.  127  (1787)  ;  Rawson  v.  Dole,  2  Johns.  (N.  Y.) 
454  (1807)  ;  Porter  v.  Sayzvard,  7  Mass.  377  (1811)  ;  Van  Slyck  v.  Hogeboom, 
6  Johns.  (N.  Y.)  270  (1810)  ;  Sawyer  v.  Ballew,  4  Port.  (Ala.)  116  (1836)  ; 
Plnmleigh  v.  Cook,  13  111.  669  (1852)  ;  Hutchinson  v.  Brand,  9  N.  Y.  208 
(1853). 


8lX")  EXKCTTION 

«)r  the  act  of  God.  can  roloaso  him  from  tlial  ol)lii:falion.  Sjiiith  v. 
Uillu-r,  Cro.  l-.liz.  1O7;  6  Ikic.  tit.  sheriff  (H.)  5;  Dav  t'r  Whittlesey 
V.  /vv//.  0  Johns.  (N.  Y.)  22;  Bartlett  v.  [Fj7//.s',  3  Mass.  86.  The 
defendant  rests  his  defense  in  this  particular,  on  the  statutes  which 
require  the  boards  doing  county  business  in  the  several  counties,  to 
cause  a  court  house,  gaol,  and  other  public  buildings  to  be  erected 
in  their  respective  counties  as  soon  as  convenient.  He  insists  that 
these  statutes  have  taken  the  power  and  responsibility  out  of  the 
shcrifl"'s  hands,  and  given  them  to  these  boards;  and  that  the  sheriff 
is  no  longer  liable.  In  South  Carolina,  in  the  case  of  Smith  v.  Hart, 
2  Bay  (S.  Car.)  395,  and  in  Massachusetts,  in  the  case  of  Burr  ell 
V.  Lithgozv,  2  Mass.  526,  where  there  are  statutes  similar  in  sub- 
stance to  ours,  it  was  held  that  although  the  public  authorities  may 
have  erected  prisons,  yet  if  the  prisoners  escape  by  reason  of  the 
insufficiency  of  the  prison,  the  sheriff  is  liable — he  being  bound  to 
see  and  know  that  his  prison  was  sufficient.  By  our  statutes,  the 
time  of  erecting  those  public  buildings  is  left  entirely  to  the  discre- 
tion and  convenience  of  those  boards,  without  any  provision  for  the 
detention  of  prisoners  until  the  public  prison  may  be  erected.  It 
can  not  be  presumed  that  the  legislature  intended  that  no  person 
should  be  imprisoned,  until  it  might  suit  the  convenience  of  the 
county  authorities  to  erect  prisons.  The  record  in  this  case  shows 
that  there  was  no  public  prison  in  the  county  in  which  the  prisoner 
could  have  been  detained ;  and,  in  such  cases,  the  court  thinks  it  is 
very  clear  that  the  common  law  governs.  The  sheriff  ought  to  have 
furnished  a  prison  and  detained  the  debtor  in  close  custody  until 
the  debt  was  paid  or  the  prisoner  otherwise  legally  discharged,  if  he 
was  legally  in  his  custody  as  such  debtor.^^ 


*'In  Qreen  v.  Kern,  2_Pen^&LJW^XPiajL.i67  (1830),  debt  was  brought 
against  the  sheriff  for  the  escape  of  a  debtor  by  breaking  the  wall  around  the 
jail  j'ard.  The  defendant  was  permitted  to  prove  that  the  jail  and  jail  yard  of 
the  county  were  defective  and  insufficient  to  keep  in  prisoners  and  that  they 
had  been  presented  by  the  prand  jur>'.  Held,  error.  Gibson,  C.  J.,  said  there 
was  an  actual  escape  which  according-  to  the  common  law  "has  uniformly 
fixed  the  gaoler,  who  can  avail  himself  of  nothing  as  matter  of  defense  but 
an  act  of  God  or  of  the  common  enemv."  Accord :  BurrcU  v.  Lithgozv,  2  Mass. 
526  (1807);  Slcmakcr  v.  Marriott,  5 'Gill  &  J.  (Md.)  406  (1833);  Smith  v. 
Hart,  2  Bay  (S.  Car.)  395  (1802)  ;  Fairchild  &  Bacon  v.  Case,  24  Wend. 
CN.  Y.)  381  (1840)  ;  O'Ncil  v.  Marson,  5  Burr.  2812  (1771)  ;  Wheeler  v.  Ham- 
briaht,  Q  Serg.  &  R.  (Pa.)  390  (1823).  But  he  may  be  exonerated  by  tTie 
act  of  the  plaintiff.  Dexter  v.  Adams,  2  Denio  (N.  Y.)  646  (1846)  ;  Dowdel^v. 
Hnmm,  2  Watts  (Pa,,^  61  (1833).  Where  the  sheriff  has  been  held  liable  for"an 
escape  he  may  have  an  action  over  against  the  gaoler,  as  his  deputy,  on  his 
bond  or  on  his  implied  undertaking  to  serve  faithfully.  Kain  v.  Ostrander, 
8  Johns.  (N.  Y.)  207  (1811)  ;  Duncan  v.^linefelter_,J,JW^n?,  (Pji.)  141.  3° 
Am.  Dec.  295  (1836)  ;  ScarborougJTv.lTiornibn,  9  Pa.  St.  451   (1848). 

A  sheriflF  at  common  law  is  noTirabTe  Tor  an  escape  on  mesne  process,  if 
he  have  the  body  of  the  defendant  at  the  return  of  the  writ.  3  Bl.  Comm. 
415;  Langdon  v.Hathnvcay,  I  N.  H.  367  (1819)  ;  Williams  v.  Mostyn,  4  M.  & 
W.  144  (1838);  Gehhardt  v.  Holmes,  149  Wis.  428,  135  N.  W.  8i5o  (191.2). 
But  on  final  process  any  liberty  allowed  which  involves  the  risk  of  losing 
control  of  the  body  of  the  debtor  is  a  voluntary  escape  for  which  the  .sheriff  is 
responsible.    Broixming  v.   Rittenhoiise,  40  N.  J.   L.  230    (1878);  Planck  v. 


MANBY   V.    SCOTT  8oi 

MANBY  V.  SCOTT 

In  the  Exchequer  Chamber,  1663 

I  Mod.  124^ 

Hyde,  J. :  If  a  man  be  taken  in  execution  and  lie  in  prison  for 
debt,  neither  the  plaintiff  at  whose  suit  he  is  arrested,  nor  the 
sheriff  who  took  him,  is  bound  to  find  him  meat,  drink  and  clothes ; 
but  he  must  live  on  his  own,  or  on  the  charity  of  others ;  and  if  no 
man  will  relieve  him,  let  him  die  in  the  name  of  God,  says  the  law ; 
and  so  say  I.^^ 


Anderson,  5  T.  R.  2)7  (1792)  ;  Benton  v.  Sutton,  I  B.  &  P.  24  (1797)  ; 
Hopkinson  v.  Leeds,  78  Pa^  St.  306  (i87<^). 

'  It  the  sliernr permits  an  escape,  he  can  not  retake  the  debtor  without  new 
process.  But  if  the  escape  is  not  permissive,  or  vokmtary,  but  the  result  of 
negligence,  the  sheriff  may  recapture  the  debtor  and  this  if  accomplished 
before  suit  brought  will  constitute  a  defense.  Biixton  v.  Home,  i  Show.  174 
(1691);  Davis  V.  Chapman,  2  Mann.  &  G.  921  (1841)  ;  Lansing  v.  Fleet,  2 
Johns.  Cas.  (N.  Y.)  3,  i  Am.  Dec.  142  (1800)  ;  Cheever  v.  Mirrick,  2  N.  H. 
376  (1821)  ;  Clark  v.  Cleveland,  6  Hill  (N.  Y.)  344  (1844)  semble;  Colley  v. 
Morgan,  5  Ga.  178  (1848)  ;  Butler  v.  IVashhurn,  25  N.  H.  251  (1852). 

**An  extract  from  the  opinion  at  page  132. 

^'Accord :  Dive  v.  Maninghani,  Plow.  60  (1550);  London  v.  Wood,  12 
Mod.  683,  2  Salk.  682  (1701).  See  King  v.  Justices,  2  B.  &  C.  286  (1823). 
But  parish  relief  might  be  afforded,  14  Eliz.,  chaps.  5,  27',  53  Geo.  Ill,  ch.  113; 
52  Geo.  Ill,  ch.  160.  At  the  common  law,  a  prisoner  in  execution  was  to  be 
kept  in  salva  et  arcta  custodia  until  he  satisfied  the  plaintiff.  In  the  eighteenth 
century,  by  rule  of  court  and  by  statute,  various  measures  were  adopted 
to  lesson  the  hardships  of  poor  debtors  confined  in  prison  on  civil  process. 
Prisoners  were  allowed,  on  entering  security,  to  go  about  within  certain 
limits  outside  of  the  jail  walls,  3  D.  &  E.  583  (1790)  ;  2  Bingh.  163  (1824). 
By  the  statute  of  32  Geo.  II,  ch.  28,  §  13  ("Lord's  Act"),  if  a  defendant 
charged  in  execution  for  a  debt  not  exceeding  iioo  (extended  to  £300  by 
3  Geo.  Ill  50),  surrender  his  effects  to  his  creditors  (except  apparel,  bedding 
and  tools  of  trade  not  amounting  in  the  whole  to  the  value  of  £10)  and 
make  oath  to  comply  with  the  statute,  he  may  be  discharged  unless  the 
creditor  insists  on  detaining  him,  in  which  case  he  shall  allow  him  2S.  4d. 
per  week,  on  failure  to  pay  which  the  prisoner  shall  be  discharged.  3  Bl. 
Comm.  416;  I  Tidd's  Pr.  (9th  ed.)  375;  Fisher  v.  Bull,  5  T.  R.  36  (1792)  ; 
Anonymous,  Sayer  102  (1753).  In  England  the  practice  is  now  regulated 
by  the  Debtor's  Act  of  1869  (32  and  33  Vict,  ch.  62),  §  4,  and  its  amend- 
ments which  abolishes  imprisonment  for  debt  except  in  the  case  of  fraudu- 
lent debtors.  Morris  v.  Ingram,  L.  R.  13  Ch.  Div.  338  (1879)  ;  2  Halsbury's 
Laws  of  England  337.  In  the  United  States  the  measure  of  relief  to  which 
an  imprisoned  debtor  is  entitled  is  wholly  dependent  upon  the  construction 
of  the  statutes  of  the  particular  states.  16  Enc.  PI.  &  Pr.  703,  17  Cyc.  1541. 
See  N.  Y.  Code  of  Civ.  Pro.,  §111,  limiting  the  term  of  imprisonment  to  three 
months  where  the  execution  is  for  less  than  $500  and  to  six  months  in  any 
case;  Consolidated  Laws  of  New  York  (1909),  Debtor  and  Creditor  Law, 
art.  S-7,  regulating  the  procedure  for  the  discharge  of  debtors  from  imprison- 
ment; Rev.  L.  of  Massachusetts  (1902),  ch.  168,  §§  33-49;  2  Comp.  L.  of  New 
Jersey  (1910),  Insolvent  Debtors,  §§  1-17:  Pa.  Act  of.  March26^8i4.  6  Sm. 
L.  195,  19,  2  P.  &  L.  Dig.  (2d  ed.)  3973;  Act  of  June  i6,~i83b,  P.  L.  729,  2 
P.  &  L.  Dig.  (2d  ed.)  4003.  See  also  People  ex  ret  Lust  v.  Grant,  10  Civ.  Pro. 
158,  18  Abb.  N.  C.  220,  I  N.  Y.  St.  537  (1886);  Padreshefsky  v.  Walton, 
6s  App.  Div.  432,  72  N.  Y.  S.  979  (1901);  Snow  v.  Shreffler,  148  App.  Div. 

51 — Civ.  Prog. 


S02  EXECUTIO 


SECTION  13.     EXECUTIONS  TO   RECOVER   SPECIFIC 

PROPERTY 

3  Blackst.  Couun.  412,  413 

If  the  plaintiff  recovers  in  an  action  real  or  mixed,  whereby 
the  seisin  or  possession  of  land  is  awarded  to  him,  the  writ  of 
execution  shall  be  an  habere  facias  seisinam,  or  writ  of  seisin,  of 
a  freehold ;  or  an  habere  facias  possessionem,  or  writ  of  possession, 
of  a  chattel  interest.  These  are  writs  directed  to  the  sheriff  of 
the  county,  commanding  him  to  give  actual  possession  to  the  plain- 
tiff of  the  land  so  recovered;  in  the  execution  of  which  the  sheriff 
may  take  with  him  the  posse  comitatus,  or  power  of  the  county; 
and  may  justify  breaking  open  doors,  if  the  possession  be  not 
quietly  delivered.  But,  if  it  be  peaceably  yielded  up,  the  delivery 
of  a  twig,  a  turf,  or  the  ring  of  the  door,  in  the  name  of  seisin,  is 
sufficient  execution  of  the  writ. 

In  other  actions,  where  the  judgment  is  that  something  in  special 
be  done  or  rendered  by  the  defendant,  then,  in  order  to  compel 
him  so  to  do,  and  to  see  the  judgment  executed,  a  special  writ  of 
execution  issues  to  the  sheriff  according  to  the  nature  of  the  case. 
As,  upon  an  assize  of  nuisance,  or  cjuod  permittat  prosternere, 
where  one  part  of  the  judgment  is  quod  nocumentum  amoveatur,  a 
writ  goes  to  the  sheriff  to  abate  it  at  the  charge  of  the  party,  which 
likewise  issues  even  in  case  of  an  indictment.  Upon  a  replevin,  the 
writ  of  execution  is  the  writ  de  retorno  habendo;  and,  if  the  distress 
be  eloigned,  tlie  defendant  shall  have  a  capias  in  withernam ;  but  on 
the  plaintift"'s  tendering  the  damages  and  submitting  to  a  fine,  the 
process  in  withernam  shall  be  stayed.^°  In  detinue,  after  judgment, 
the  plaintiff  shall  have  a  distringas,  to  compel  the  defendant  to  de- 
liver the  goods,  by  repeated  distresses  of  his  chattels ;  or  else  a  scire 
facias  against  any  third  person  in  w^hose  hands  they  may  happen  to 
be,  to  show  cause  why  they  should  not  be  delivered;  and  if  the  de- 
fendant still  continues  obstinate,  then  (if  the  judgment  hath  been 
by  default  or  on  demurrer)  the  sheriff"  shall  summon  an  inquest  to 
ascertain  the  value  of  the  goods,  and  the  plaintiff's  damages ;  which 


422,  132  N.  Y.  S  895  (1911)  ;  Battle  v.  Surety  Co.,  78  Misc.  253,  138  N.  Y.  S. 
46  (1912)  ;  Goldreyer  v.  Foley,  154  App.  Div.  584,  139  N.  Y.  S.  190  (1913)  ; 
Stockwcll  V.  Sillozaay,  100  Mass.  287  (1868)  ;  Kellogg  v.  Underwood,  163 
Ivlass.  214,  40  N.  E.  104  (1895)  ;  Carpenter  v.  Goddard,  191  Mass.  54,  76  N.  E. 
953  (1906);  Henderson  v.  Parsons,  211  Mass.  69,  97  N.  E.  613  (1912); 
HidshLer  v.  Kocker,  20  N.  J.  L.  390  (1845)  ;  Louis  v.  Kaskel,  51  N.  J.  L.  236, 
17  Atl.  120  (1889)  ;  C ommonu^alth  v.  Sheriff  of  Allegheny,  6  Pa.  St.  445 
(1847) ;  Power  v.  Graydon,  .S3  Pa.  St.  198  (1866)  ;  Keim  v.  Saunders,  120  Pa. 
St.  121.  i^  Atl  710  i  ii<^)  :  Zreemvatdt  v.  Kr'aus.  148  Pa.bt.  S17.  24  Atl.  67 
( 1S92)  ;  Crissy  V.  Vogt,  Q  Pa.3m)eF.  Ct.  418  (1899)  ;  I)o_escher's  Petition, ji 
Pa.  Super.  rt.'346  dooi)  ;  Irn'in  y.  Tfudsoh,  24  Pa.  Super.  Ct  72  (1903)  ; 
Kel^aVv.  Norton,  228  111.  3=;6,  SiTJ.  E.  1037  (1907);  Stroheiin  v.  Deimrl,  7^ 
Fed.  cm.)  4?o  Ci8q6)  ;  Lambert  v.  Wiltshire,  144  PI-  5^7,  33  N.  E.  538  (1893). 
"Sec  2  Tidd's  Practice  (9th  ed.)  1038;  Beel  v.  Bartlett,  7  N.  H.  178 
(1834)  ;  Cobbey  on  Replevin  (2d  ed.)  322. 


VVAITE   Z'.    COLBY  803 

(being  either  so  assessed,  or  by  the  verdict  in  case  of  an  issue)  shall 
be  levied  on  the  person  or  goods  of  the  defendant.  So  that,  after 
all,  in  replevin  and  detinue  (the  only  actions  for  recovering  the  spe- 
cific possession  of  personal  chattels),  if  the  wrongdoer  be  very  per- 
verse, he  can  not  be  compelled  to  a  restitution  of  the  identical  thing 
taken  or  detained ;  but  he  still  has  his  election,  to  deliver  the  goods, 
or  their  value ;  an  imperfection  in  the  law,  that  results  from  the 
nature  of  personal  property,  which  is  easily  concealed  or  conveyed 
out  of  the  reach  of  justice,  and  not  always  amenable  to  the  magis- 
trate. 


(a)  Personalty 

WAITE  V.  DOLBY 

Supreme  Court  of  Tennessee,  1847 

8  Humph.  (Tenn.)  406 

Waite  sued  Dolby  in  the  Circuit  Court  of  Coffee  County  in 
detinue.  Dolby  pleaded  non  detinet,  and  a  verdict  and  judgment 
were  entered  in  tlie  following  language:  "The  jury  sworn,"  etc., 
"do  say  that  the  defendant  doth  detain  the  mare  Rollo,  described  in 
the  declaration  in  manner  and  form  as  the  plaintiff  hath  complained, 
and  they  do  assess  the  plaintiff's  damage,  by  reason  of  the  deten- 
tion thereof  to  ten  dollars,  and  the  jurors  aforesaid  upon  their 
oaths  aforesaid  do  further  say,  that  the  mare  Rollo  was  of  the  value 
of  one  hundred  and  thirty-five  dollars.  It  is  therefore  considered 
by  the  court  that  tlie  plaintiff  recover  of  the  said  defendant,  the 
mare  Rollo,  if  she  can  be  had;  and  the  damages  aforesaid  assessed 
for  her  detention,  and  also  his  costs  about  his  suit  in  this  behalf 
expended;  and  it  is  further  considered  by  the  court,  that  in  case 
said  mare  can  not  be  had,  that  the  plaintiff  recover  of  the  defendant 
the  sum  of  one  hundred  and  thirty-five  dollars,  the  value  of  the 
mare,  as  ascertained  by  the  jury,  together  with  the  damages  as 
aforesaid  assessed,  and  his  costs,"  etc. 

On  this  judgment  the  clerk  issued  a  fieri  facias,  in  the  usual  form, 
for  the  value  of  the  mare,  to  wit,  one  hundred  and  thirty-five  dol- 
lars and  ten  dollars  damages  and  costs. 

The  fieri  facias  was  levied  on  the  land  of  Dolby,  lying  in  the 
county  of  Coffee.  It  was  sold,  and  tlie  plaintiff,  Waite,  became  the 
purchaser,  and  instituted  his  action  of  ejectment  against  Dolby,  and 
at  the  February  term,  1847,  of  the  Circuit  Court  of  Coffee  County, 
the  case  was  tried  by  Judge  ]\Iarchbanks,  and  a  jury,  and  a  verdict 
and  judgment  were  entered  for  the  plaintiff.  The  defendant  ap- 
pealed.^^ 

Green,  J. :  The  action  of  detinue  is  for  the  thing  detained,  and 
damages  for  detention ;  the  value  of  the  property  is  ascertained  by 

"The  argument  of  counsel,  and  part  of  the  opinion  is  omittod. 


8o4  KXnCUTION 

the  jury,  and  the  judi^ncnt  is  in  the  aUcrnativc,  for  the  sum  so 
found  as  the  vahic,  in  case  the  thinj>-  recovered  can  not  be  had.  In 
Tixiny;  tliis  vahie,  the  ]>ractice  is  to  render  a  verdict  for  the  highest 
price,  in  order  to  enforce  the  dehvery  of  the  thing.  It  is  manifest 
from  the  form  of  tlie  judgment,  and  the  object  in  fixing  the  vakie, 
that  a  distringas  for  the  thing  recovered  must  be  issued  in  the  first 
instance.  How  can  it  be  ascertained  that  th.e  thing  can  not  be  had, 
unless  by  tlie  return  of  process,  which  had  issued  to  obtain  it? 
And  the  judgment  for  the  money  is  conditional ;  if  the  thing  can  not 
be  had;  therefore,  if  execution  for  the  money  issue,  before  it  is 
ascertained  by  the  return  of  a  distringas,  that  the  thing  can  not  be 
had,  it  is  certainly  erroneous,  if  not  irregular,  and  void.  It  is  often 
difficult  to  determine  whether  process  be  irregular,  or  erroneous 
only;  but  we  are  inclined  to  regard  the  execution  in  this  case  as 
irregtdar  and  void. 

It  is  not  like  the  case  of  the  issuance  of  a  fieri  facias  after  a  year 
and  a  day  wilhout  a  scire  facias.  In  such  case  there  is  a  regular 
judgment  which  authorizes  the  fieri  facias;  but  by  reason  of  the 
lapse  of  time,  it  is  erroneous  to  take  it  out,  until  a  scire  facias  has 
been  issued  to  revive  the  judgment.  But  here,  the  judgment  for  the 
value  of  the  mare,  was,  on  condition  the  mare  could  not  be  had ; 
until  it  was  ascertained  the  mare  could  not  be  had,  there  was  noth- 
ing in  this  judgment  for  iJie  execution  to  rest  upon. 

But  be  this  as  it  may,  there  can  be  no  doubt  but  that  the  dis- 
tringas should  first  issue — until  which,  tlie  issuance  of  the  fieri  facias 
was  unlawful.  This  being  the  case,  the  defendant  in  error  acquired 
no  title  by  his  purchase  of  the  land,  though  the  sale  might  have  been 
valid  had'  a  stranger  purchased ;  i  Tenn.  222. 

Judgment  reversed.°- 


*'At  common  law  upon  judgment  in  detinue  a  distringas  issued  to  compel 
the  delivery  of  the  goods  and  if  the  goods  were  not  recovered  execution 
issued  against  the  person  or  property  of  the  defendant.  3  Blackst.  Comm.  413  ; 
8  Viner's  Abr.  40,  pi.  15;  Keilwey  64  b  (1504)  ;  Peters  v.  Hcyward,  Cro.  Jac. 
682  (1623);  MoUoy  v.  M'Danicl,  i  Overt  (Tenn.)  222  (1805);  Garland  v. 
Bugg,  5  Munf.  (Va.)  166  (1816)  ;  Jordan  v.  Williams,  3  Rand.  (Va.)  501 
(1825)  ;  Boyd  v.  IVillianis,  5  J.  J.  Marsh.  (Ky.)  56  (1830)  ;  Vines  v.  Brown- 
rigg,  18  N.  Car.  239  (1835)  ;  Jordan  v.  Thomas,  34  Miss.  y2,  69  Am.  Dec.  387 
(1857)  ;  Keith  v.  Johnson,  I  Dana  (Ky.)  604  (1833)  ;  Robinson  v.  Richards, 
45  Ala.  354  (1871)  ;  Ex  parte  Vaughan,  168  Ala.  187,  53  So.  270  (1910). 

Under  tlie  modern  English  practice  a  judgment  for  the  recovery  of 
anv  property  other  than  land  or  money  may  be  enforced  by  writ  for  the 
delivery  of 'the  property,  Order  XLII,  rule  6;  Ann.  Pr.  Appendix  H,  10. 
And  ordinarily  the  sheriff  either  causes  the  property  to  be  returned  or 
levies  the  value  assessed  in  the  judgment.  But  the  court  may,  under  Order 
XLVIII,  rule  I,  upon  the  plaintiff's  application,  order  the  execution  to  issue 
for  the  delivery  of  the  chattel,  without  giving  the  defendant  the  option  of 
returning  the  property  on  paying  the  value  assessed.  Upon  this  order,  the 
writ  directs  that  if  the  property  can  not  be  found,  the  sheriff  shall  distrain 
the  defendant  by  all  his  lands  and  chattels  till  the  defendant  deliver  the 
property.  Where  the  order  to  return  the  chattels  is  personal,  disobedience  of 
the  defendant  may  be  punished  as  contempt.  Ilynias  v.  Ogden,  L.  R.  (1905) 
I  K.  B.  246.  So  also,  where  the  writ  of  delivery  would  be  futile,  as  where 
the  defendant  is  out  of  the  jurisdiction,  a  writ  of  assi.stance  may  issue. 
H'vman  v.  Ktiight,  L.  R.  39  Ch.  Div.  165  (1888)  ;  Borde  v.  Othon,  23  W.  R. 
no  (1874). 


REBER   V.    SCIIROEDER  805 

REBER  V.  SCHROEDER 

Supreme  Court  of  Pennsylvania,  1908 
221  Pa.  152 

Appeal  by  defendant  from  judgment  of  Common  Pleas  of  Berks 
County  on  verdict  for  plaintiff  in  the  case  of  Sarah  Reher  v.  Daniel 

E.  Schroeder,  executor  of  George  F.  Hagenman.^^ 

Fell,  J. :  This  was  an  action  of  replevin  for  certificates  of  stock 
of  a  national  bank,  which  were  in  the  name  and  possession  of  George 

F.  Hagenman  at  the  time  of  his  deatli,  and  were  found  in  his  safe 
by  his  executor,  enclosed  in  a  sealed  envelope,  with  a  power  of  at- 
torney transferring  them  to  the  plaintiff. 

The  thirteenth  and  fourteenth  assignments  relate  to  the  verdict 
and  the  judgment  entered  thereon,  and  give  rise  to  questions  under 
the  Act  of  April  19,  1901,  P.  L.  88,  regulating  the  practice  in  re- 
plevin. The  defendant  had  entered  a  claim  property  bond  and  re- 
tained possession  of  the  stock  certificate.  The  verdict  rendered  was 
for  the  plaintiff  without  a  finding  of  the  value  of  the  shares  and 
damages  for  their  detention,  and  the  judgment  entered  was  a  general 
one  in  favor  of  the  plaintiff.  At  common  law  and  before  the  Act 
of  1901,  where  the  defendant  retained  possession  of  the  property, 
the  action  proceeded  for  damages  only.  The  property  could  not  be 
recovered  from  him,  nor  could  he  tender  it  in  satisfaction  of  the 
verdict.  The  giving  of  the  claim^  property  bond  put  an  end  to  the 
plaintiff's  title,  which  was  thereupon  turned  into  a  chose  in  action 
to  be  compensated  for  in  damages.  The  defendant  was  the  only 
party  who  could  have  a  judgment  de  retorno  habendo ;  Fisher  v. 
WhooUcry,  25  Pa.  197 ;  Scho field  v.  Ferrers,  46  Pa.  438 ;  Rockey  v. 
Burkholter,  68  Pa.  221 ;  Morris  on  Replevin,  210.^*  The  Act  of 
1901  has  changed  the  practice  in  this  respect,  and  a  plaintiff  who 
has  not  been  given  possession  of  the  property  is  entitled  to  a  v/rit  of 
retorno  habendo,  as  well  as  to  a  writ  of  fieri  facias,  to  recover  the 
value  of  the  property  and  damages  awarded,  and  costs.  It  is  pro- 
vided by  section  5,  that  where  judgment  has  been  entered  for  tlie 
plaintiff  for  the  want  of  a  sufficient  affidavit  of  defense,  for  a  portion 
of  the  goods  and  chattels  replevied,  he  may  proceed  to  recover  such 
goods  and  chattels  by  a  writ  of  retorno  habendo,  or  the  value  thereof, 
after  assessment  of  damages  on  a  writ  of  inquiry.^^   Section  7  pro- 

*'The  arguments  of  counsel  and  part  of  the  opinion  are  omitted. 

"In  Powell  V.  Hinsdale,  5  Mass.  343  (1809),  it  is  said,  per  Parsons,  C.  J.: 
"In  replevin  each  party  may  be  an  actor.  If  the  plaintiff  prevails,  he  shall 
have  damages  for  the  unlawful  caption  and  detention  by  the  defendant  and 
also  his  costs.  But  if  the  defendant  prevails,  he  shall  have  a  return  of  the 
goods,  and  damages  for  the  taking  of  them  on  the  writ  and  also  his  costs." 
Easton  v.  Worthinciton.  q  Serg.  &  R.  (Pa.)  130  (1819)  ;  Parker  v.  Simonds, 
49  Mass.  (8  Mete.)  205  (1844)  ;  Frader  v.  Fredericks,  24  N.  J.  L.  162  (1853)  ; 
State  V.  Carrick,  70  Md.  586,  17  Atl.  559,  14  Am.  St.  387  (1889). 

*°In  Painter  V.  Snyder,  22  Pa.  Super.  Ct.  603  (1903).  the  mere  entry  of 
judgment  was  held  not  error.  But  in  IVilburn  v.  Cologcrs,  97  Miss.  511,  52 
So.  794  (1910),  judgment  by  default  without  writ  of  inquiry  was  held  errone- 
ous. 


8o6  F.XF.CUTION 

viJcs  tluit  "if  the  title  to  said  goods  and  chattels  be  found  finally  to 
be  in  a  party  \vho  has  not  been  given  possession  of  the  same,  in 
said  proceeding,  the  jury  shall  determine  the  value  thereof  to  tlie 
successful  party,  and  he  may,  at  his  option,  issue  a  writ  in  the  nature 
of  a  writ  of  retonio  habcndo,  requiring  the  delivery  thereof  to  him, 
witli  an  added  clause  of  fieri  facias  as  to  damages  awarded  and 
costs;  and  upon  failure  so  to  recover  them,  or  in  the  first  instance, 
he  may  issue  execution  for  the  value  thereof,  and  the  damages 
awarded  and  costs;  or  he  may  sue,  in  the  first  instance,  upon  the 
bond  given,  and  recover  thereon  the  value  of  tlie  goods  and  chat- 
tels, damages  and  costs,  in  the  same  manner  that  recovery  is  had 
upon  other  official  bonds." 

Before  the  Act  of  1901,  the  verdict  rendered  in  this  case  would 
have  been  of  no  avail  to  the  plaintiff,  because  a  judgment  retorno 
habendo  could  not  have  been  entered  upon  it;  Moore  v.  Shenk,  3 
Pa.  13;  and  there  was  no  award  of  damages  for  which  a  writ  of 
execution  could  issue.  But  b}'  virtue  of  the  act,  the  plaintiff  is  enti- 
tled to  a  return  of  the  property,  and  she  may  have  a  writ  to  enforce 
the  right.  A  judgment  on  the  verdict  is  sufficient  to  sustain  such  a 
writ.  She  has  not  obtained  all  that  she  was  entitled  to  by  the  trial, 
because  of  the  failure  of  tlie  jury  to  find  the  value  of  the  property 
and  damages  for  its  detention,  but  the  judgment  on  the  verdict  is 
not  invalid. 

The  judgment  is  affirmed.^® 


**Accord:  Durnth  Mfg.  Ca.  v.  CauffA..j24T.  Pa.  21.80  Atl.  708  (1914). 
In  replevin  and  the  corresponding  code  remedy  "claim  and  delivery"  the  pro- 
cedure is  now  largely  statutory  and  varies  gi-eatly.  As  in  the  principal  case, 
the  statutes  in  some  jurisdictions  permit  the  successful  party  to  elect  whether 
he  will  take  a  return  of  the  property  or  payment  of  its  value.  White  v.  Graves, 
68  AIo.  218  (1S78)  ;  Koelling  v.  August  Cast  Co.,  103  Mo.  App.  98,  yj  S.  W. 
474  (1903)  ;  Oskaloosa  Steam  Engine  Works  v.  Nelson,  54  Iowa  519,  6  'N.  W. 
71S  (1880)  ;  Martin  v.  Ferguson  (Ky.),  m  S.  W.  281  (1911).  Under  codes 
which  allow  an  execution  for  the  return  of  the  specific  property  and,  if  the 
property  can  not  be  had,  satisfaction  by  levy,  it  is  generally  held  that  a  return 
of  the  property  and  payment  of  damages  by  the  unsuccessful  party  discharges 
his  liability.  Divight  v.  Enos,  9  N.  Y.  470,  Seld.  Notes  226  (1854);  N.  Y 
Code  Civ.  Pro.,  §  1731 ;  Cal.  Code  Civ.  Pro.  §  667;  Bales  v.  Scott,  26  Ind 
202  (1866)  ;  Marks  v.  Willis,  36  Ore.  i,  58  Pac.  526,  78  Am.  St.  752  (1899) 
Carson  v.  Applcgarth,  6  Nev.  187  (1870)  ;  Johnson  v.  Gallcgos,  10  N.  Mex.  i 
60  Pac.  71  (1900)  ;  Pabst  Brewing  Co.  v.  Rapid  Safely  Filter  Co.,  56  Misc 
445,  107  N.  Y.  S.  163  (1907)  ;  Leve  v.  Frazier,  42  Ore.  141,  70  Pac.  376  (1902)  ; 
N.  Y.  &  Brooklyn  Brewing  Co.  v.  Angels,  144  App.  Div.  655,  129  N.  Y.  S.  713 
(1911);  Chestnut  v.  Sales,  44  Mont.  534,  121  Pac.  481  (1912).  Compare 
Swantz  V.  Pillow,  50  Ark!  300,  70  S.  W.  167,  7  Am.  St.  98  (i887)._  In  New 
Jersey  a  defendant  who  has  given  bond  and  retained  possession,  if  unsuc- 
cessful, can  not  tender  the  goods  to  plaintiff  in  lieu  of  damages.  Leinbeck 
&  Bets  Brewing  Co.  v.  Tarrant,  79  N.  J.  L.  372,  75  Atl.  474  (1910).  In 
Wyoming  an  unsuccessful  plaintiff  can  not  satisfy  a  judgment  by  a  return 
of  the  property.  Montana  &  W.  Oil  Co.  v.  Gibson,  113  Pac.  784  (1911). 


LEEPER,    GRAVES    &    CO.    V.    FIRST    NAT.    BANK  807 

LEEPER,  GRAVES  &  CO.  v.  FIRST  NAT.  BANK 

Supreme  Court  of  Oklahoma,  19 io 

26  Okla.  707 

Error  from  the  District  Court  of  Kiowa  County.  The  First 
National  Bank  of  Hobart  was  pledgee  in  possession  of  eight  steel 
bridges,  valued  at  $4,855,  held  as  security  for  an  indebtedness  of 
$6,000.  On  April  18,  1904,  Leeper,  Graves  &  Co.,  a  corporation, 
having  given  bond  signed  by  itself  and  D.  S.  Dill,  J.  G.  Leeper  and 
John  W.  Graves,  brought  replevin  and  the  property  w^s  taken  from 
the  possession  of  the  bank  and  delivered  to  it.  On  the  trial  of  this 
action  of  replevin  judgment  was  rendered  in  favor  of  the  bank  for 
the  return  of  the  property  if  it  could  be  had,  and  if  the  same  could 
not  be  returned,  then  for  $4,855  with  costs.  Afterwards  an  agent 
of  Leeper,  Graves  &  Co.  went  to  Hobart  and  tendered  a  return  of 
the  bridges,  which  was  rejected  by  the  bank,  after  checking  over 
the  bridges  and  ascertaining  that  certain  parts  were  missing,  and 
an  action  was  begun  by  the  bank  within  a  few  days  on  the  replevin 
bond.  On  the  trial  the  court  found,  as  a  conclusion  of  law,  that  to 
escape  liability  on  the  bond  it  was  necessary  for  the  company  to 
tender  a  return  of  the  complete  structures  or  to  have  obligated  itself 
to  make  them  complete  by  supplying  any  necessary  parts  found  to  be 
missing.  Judgment  was  entered  for  the  bank  for  $4,855,  with  inter- 
est. The  defendants  bring  error.^^ 

Dunn,  C.  J. :  No  contention  is  made  that  the  company  did  not 
receive  these  missing  articles  in  the  replevin  action,  nor  was  there 
any  evidence  offered  to  show  that  they  were  withheld  in  bad  faith, 
nor  were  not  such  that  either  of  the  parties  could  go  into  the  open 
market  and  readily  purchase  and  replace,  as  they  would  any  other 
item  of  personal  property.  And,  if  the  rule  obtains  that  a  plaintiff 
who  in  an  action  of  replevin  under  a  judgment  requiring  him  to 
return  the  property  taken  may  return  less  than  the  whole  when  part 
is  lost,  then  to  our  minds  the  bond  which  is  given  in  such  a  case 
would  be  responsive  to  the  requirements  suggested  by  the  court  in 
its  second  conclusion,  wherein  it  is  held  that  the  company  should 
have  obligated  itself  to  have  made  the  structures  complete  by  sup- 
plying any  necessary  part  found  to  be  missing.  On  tlie  question 
as  to  whether  a  plaintiff  against  whom  a  judgment  has  been  ren- 
dered in  replevin  may  return  a  portion  of  the  property,  and  receive 
credit  therefor,  being  liable  for  the  unreturned  portion  on  his  bond, 
or  whether  he  must  tender  all  or  none,  the  authorities  are  not  en- 
tirely harmonious.  The  following  cases  hold  that  a  partial  return 
with  a  monetary  liability  for  the  unreturned  portion  is  not  per- 
missible, and  that  a  plaintiff  under  such  a  state  of  facts  must  return 
all  or  pay  the  judgment   for  the   entire  amount  of  the  property 


"'The  statement  of  facts  is  abridged  from  the  opinion  of  the  court,  part 
of  which  is  omitted. 


8o8  KXECUTION 

received.  IJ'lictniorr  v.  Ruf'c,  6--,  Cal.  j;,7  ;  Pauls  v.  Muudine,  37 
Tex.  Civ.  App.  ()Oi  ;  Kingslcv  v.  .V(/»t'r,  17  Misc.  (N.  Y.)  544; 
Stt-:rns  w  Tuitc,  104  Mass.  328.  However,  by  far  the  greater  nunihcr 
of  authorities,  and  in  our  judpiiont  with  the  better  reasoning, 
depending  somewhat  on  the  particuhir  facts  in  each  case,  support 
the  rule  that  in  an  action  of  replevin  where  the  ])laintiff  secures 
possession  of  the  property  and  on  the  trial  a  judgment  is  rendered 
requiring  its  return  or  the  valud  thereof  in  case  a  return  can  not  be 
had,  it  is  the  duty  of  plaintiff  in  good  faith  to  tender  in  as  good  con- 
dition as  received  all  of  the  same  within  a  reasonable  time,  and  it 
is  the  duty  of  defendant  to  accept  such  a  tender  and  receive  the 
propertv  or  a  substantial  part  thereof  and  recoup  any  damages  suf- 
fered on  the  replevin  bond.'"* 

In  the  case  at  bar,  as  the  parts  of  the  different  bridges  which 
were  not  tendered  constituted  but  a  small  fraction  of  the  entire 
amount  of  the  property  taken,  and  tliere  w^as  no  showing  that  the 
same  could  not  be  readily  procured  in  the  open  market,  or  w^ere 
witliin  plaintiff's  control,  we  can  see  no  reason  why  a  party  in  such 
a  case  should  not  be  required  to  accept  the  great  bulk  of  the  prop- 
erty involved  and  recoup  on  the  bond  given  for  such  as  was  missing. 
Counsel  for  the  bank  in  their  brief  ask  if  a  wagon  be  replevied,  and 
plaintiff  be  required  to  restore,  could  he  tender  the  tail-gate,  and 
require  its  acceptance?  To  this  we  will  say  that  we  think  not,  but 
should  the  w^agon  be  tendered  entire  with  the  exception  of  the  tail- 
gate, W'hich  it  was  not  vi^ithin  the  power  of  the  plaintiff  to  restore- 
that  is,  was  lost  and  not  wilfully  withheld — we  believe  that  its 
acceptance  would  be  required  wnth  an  allowance  of  damages  there- 
for. So  it  will  be  seen  the  conclusion  to  which  w-e  have  come  is  that 
by  the  bond  given  the  company  had  obligated  itself  to  make  the  struc- 
tures tendered  complete  as  they  w-ere  when  they  received  them,  or, 
to  the  same  end,  make  the  obligees  whole  for  all  loss  or  damages 
suffered.^'* 

Cause  remanded  to  trial  court  to  enable  plaintiffs  to  establish 
and  recover  damages  in  accordance  with  this  opinion. 


^Citin?  Wells  on  Replevin,  §  422;  Shinn  on  Replevin,  §  679;  Cobbey 
on  Replevin,  §  1389;  Washington  Ice  Co.  v.  Webster,  125  U.  S.  426,  31  L.  ed. 
790  (1887)  ;  Larahee  v.  Cook,  8  Kans.  App.  776,  61  Pac.  815  (1899)  ;  Harts  v. 
Wendell,  26  111.  App.  274  (1S87);  Edivin  v.  Cox,  61  111.  App.  567  (1895); 
Allen  v.  Fox,  51  N.  Y.  562,  10  Am.  Rep.  641  (1873)  ;  Yelton  v.  Shnkhard,  85 
Ind.  190  (1882)  ;  Archer  v.  Long,  47  S.  Car.  556,  25  S.  E.  84  (1896)  ;  Reavis 
V.  Horner,  11  Nebr.  479,  9  N.  \Y.  643  (1881)  ;  Johnston  v.  Mason,  64  N.  J.  L. 
258,  45  Atl.  618  (1899)  ;  Pickett  v.  Bridges,  10  Humph.  (Tcnn.)  171  (1849)  ; 
Pabst'Brcziing  Co.  v.  Rapid  Filter  Co.,  54  Alisc.  305,  105  N.  Y.  S.  962  (1907). 
Accord:  Franks  v.  Matson,  211  111.  338,  71  N.  E.  loii  (1904);  Trundle  v. 
Register  P.  Co.,  58  Colo.  81,  143  Pac.  282  (1914);  Schleaning  v.  West,  34 
S.  Dak.  356,  148  N.  W.  604  (1914).  See  Black  v.  Black,  74  Cal.  520,  16  Pac.  311 
(1888),  and  compare  Burke  v.  Koch,  75  Cal.  356,  17  Pac.  228  (1888). 

"In  Rennebanm  v.  Atkinson,  21  Ky.  L.  J.  587,  $2  S.  W.  828  (1899).  where 
part  of  the  propertv  could  not  be  delivered,  it  is  said :  "The  plaintiff  in  such  a 
case  is  entitled  to  the  whole  of  the  property  claimed,  or,  if  the  whole  of  the 
propertv-  is  not  produced,  he  is  entitled  to  the  value  of  the  whole  of  it  unless 
good  cause  be  shown  for  its  nonproduction."  The  successful  party  is  not 
under  anv  obligation  to  accept  property  not  identical  with  that  taken  under 
the  writ 'of  replevin.    Irvin  v.  Smith,  68  Wis.  227,  31   N.  W.  912    (1887); 


CALVART   V.    IIORSFALL  BoQ 

(b)   Realty 

CALVART  V.  IIORSFALL 

At  Nisi  Prius  ix  the  King's  Bench,  1802 

4  Esp.  167 

Trespass  for  the  mesne  profits  of  certain  premises,  situated  in  the 
parish  of  Pancras. 

The  plaintiff  proved  the  judgment  in  ejectment,  in  a  cause  of 
Doe  on  the  demise  of  Calvart  v.  Roe. 

To  prove  that  the  defendant  was  in  possession  of  the  premises 
at  the  time  of  the  ejectment,  the  plaintiff  called  the  person  by  whom 
the  declaration  in  ejectment  was  served  upon  the  premises;  he  said, 
that  he  served  the  declaration  on  a  person  who  said  his  name  was 
Horsfall ;  and  that  he  explained  to  him  the  notice,  at  the  foot  of  the 
declaration  to  appear. 

The  defendant  had  let  the  plaintiff  into  possession  of  the  prem- 
ises; but  no  writ  of  possession  had  ever  been  executed  after  the 
judgment  in  ejectment. 

Gibbs  said,  the  only  question  was,  whether  the  plaintiff  could 
maintain  an  action  of  trespass  for  the  mesne  profits,  without  having 
a  writ  of  possession  executed?  That  as  possession  was  necessary 
to  maintain  trespass,  it  appeared  by  the  proceedings  in  the  eject- 
ment, that  he  was  not  in  possession  when  the  ejectment  vv-as  brought, 
nor  legally  so  until  put  into  possession  under  the  writ  of  possession. 

Lord  Ellenborougii  :  It  has  been  proved  that  the  plaintiff  has 
been  in  possession  by  consent  of  the  party.  I  hold,  that  being  in 
possession  by  the  act  of  the  party  when  he  brings  this  action,  that 
that  is  sufficient  to  entitle  him  to  maintain  the  action.^ 


PAckhoff  V.  Eikenhary,  52  Nebr.  332,  72  N.  W.  308  (1S77).  But  in  debt  on  a 
replevin  bond  it  was  held  a  sufficient  defense  that  the  losing  party  surrendered 
all  the  property  replevied  except  a  part  which  was  missing,  and  that  instead 
of  the  latter  other  and  more  valuable  articles  had  been  delivered  to  and 
accepted  by  the  successful  party.  Sands  v.  Frit::,  84  Pa.  St.  15  (1877). 
Compare  Cnmmcmwcnlth  v.  S'chrrj£d£r^i  Pif-rks  Co.  (Pa.)  61  (1Q08).  where 
it  v,as  held  that  the  voluntary  surrender  and  acceptance  of  stock  certificates, 
the  subject  of  the  replevin  suit  was  not  a  waiver  of  an  action  on  the  bond  to 
recover  dividends  received  pending  the  suit. 

If  the  goods  have  been  destroyed  or  disposed  of  so  that  a  return  can  not 
be  had  the  judgment  need  not  be  in  the  alternative.  Richardson  Drug  Co.  v. 
Teasdall,  59  Nebr.  150,  80  X.  W.  488  C1899),  where  it  was  established  that  the 
property  in  controversy  had  been  destroyed  by  fire.  Clouston  v.  Gray,  48  Kans. 
31,  28  Pac.  983  (1892);  Burke  v.  Koch,  75  Cal.  356,  17  Pac.  228  (1888); 
Seligman  v.  Armando,  94  Cal.  314,  29  Pac.  710  (1892)  ;  Washington  Ice  Co. 
V.  Webster,  62  Maine  341,  16  Am.  Rep.  462  (1873).  .See  2\so  Johnson  v. 
Mason,  70  5j.  J.  L.  13,  56  Atl.  137  C1903)  ;  Maguire  v.  Pan-American  Amuse- 
ment Co.,  205  Mass-.  64,  91  N.  E.  135,  137  Am.  St.  422  C1910). 

^Accord:  Jackson  v.  Combs,  7  Cow.  CN.  Y.)  36  C1827)  ;  Caldwell  v. 
WnJfjXi.  ^^  Pn  St  378  (18=^3)  semble.  A  writ  of  hebere  facias  possessionem 
IS  not  indispensable  in  all  cases.  Where  possession  is  peaceably  surrendered 
by  the  defendant,  the  entry  of  the  plaintiff  is  sufficient  without  v.rit.    Lacy  v. 


SlO  ^    F.Xi:CUT10X 

UrTON  r.  WI'.LT.S 

In  thk  Kinci's  Bi:ncit,  1588 

I  J.cflit.  145 

Tn  an  ejectione  firmae  by  Upton  against  Wells,  judgment  was 
given  for  the  plaintiff,  and  upon  the  habere  facias  possessionem  the 
sheriff  returned  tliat  in  the  execution  of  the  said  writ  he  took  the 
plaintiff-  with  him  and  came  to  tlie  house  recovered,  and  removed 
thereout  a  woman  and  tv/o  children,  which  were  all  the  persons 
which  upon  diligent  search  he  could  find  in  the  said  house,  and 
delivered  to  the  plaintiff  peaceable  possession  to  his  thinking,  and 
afterwards  departed,  and  immediately  after  three  other  persons 
which  were  secretly  lodged  in  the  said  house  expulsed  the  plaintiff 
again ;  upon  notice  of  which  he  returned  again  to  the  said  house  to 
put  the  plaintiff  in  full  possession,  but  the  other  did  resist  him,  so 
as  witliout  peril  of  his  life  and  of  them  that  were  with  him  in  com- 
pany he  could  not  do  it.  And  upon  this  return  the  court  awarded 
a  new  writ  of  execution,  for  that  the  same  was  no  execution  of  the 
first  writ,^  and  also  awarded  an  attachment  against  the  parties. 


Berry,  2  Sid.  155  (1659)  ;  Withers  v.  Harris,  2  Ld.  Raym.  806  (1702)  ;  Taylor 
V.  Horde,  I  Burr.  60  (1757),  at  pp.  88,  113;  Doe  ex  dem.  Stephens  v.  Lord, 
7  Ad.  &  El.  610  (1837)  semble;  Jackson  v.  Haviland,  13  Johns.  (N.  Y.)  229 
(1816)  ;  Bowman  v.  Violet,  4  T.  B.  Mon.  (Ky.)  351  (1827)  ;  Davis  v.  Lee,  2 
B.  Mon.  (Ky.)  300  (1842);  Creighton  v.  Proctor,  66  Alass.  (12  Cush.)  433 
(1853);  Vasqnez  v.  Ezving,  24  Mo.  31,  66  Am.  Dec.  694  (1856);  Fisher  v. 
Johnston,  25  U.  C.  Q.  B.  616  (1866)  ;  CrQiUL,F£ggoJ36  Pa  St  9,iq  (1870)  ; 
Witbeck  V.  Van  Rensselaer,  64  N.  Y.  27  (1876);  Bowar  v.  Chicago  West 
Division  R.  Co.,  136  111.  loi,  26  N.  E.  702,  12  L.  R.  A.  81  (1891).  But  in 
Hildrcth  v.  Thompson,  16  Mass.  191  (1809),  the  rule  is  said  to  be  otherwise 
"where  the  judgment  is  for  an  uncertain  portion  of  or  interest  in  land; 
for  in  such  case  it  can  not  be  ascertained  into  what  part  of  the  land  the 
demandant  has  a  right  of  entry." 

At  common  law  "unless  the  writ  of  possession  were  issued  within  a  year 
and  a  day  after  judgment,  the  judgment  must  be  revived."  King  v.  Davis, 
137  Fed.  198  C1903).  For  the  present  English  practice  see  Rules  of  the  Su- 
preme Court,  Order  XLVII ;  Savage  v.  Bcntlcy,  90  L.  T.  641  (1904). 

"The  plaintiff,  or  his  agent,  must  accompany  the  officer  to  the  premises, 
and,  at  his  peril,  point  out  the  property  to  be  delivered.  Queen  v.  Aylcworth, 
Saville  28  (1581)  ;  lUoyd  v.  Bcthell,  i  Roll.  (K.  B.)  322  (1617)  ;  Connor  v. 
]Vest,  S  Burr.  2672  (1770);  Young  v.  Brnces,  5  Litt.  (Ky.)  324  (1824); 
Jackson  v.  Rathhone,  3  Cow.  (N.  Y.)  291  (1824)  ;  Den  ex  dem.  McAndrezvs 
v.  O'Hanlin,  18  N.  J.  L.  127  (1840)  ;  Johnson  v.  Ncvill,  65  N.  Car.  677  (1871). 
If  more  property  is  taken  than  is  awarded  by  the  judgment,  the  court  will 
restore  the  injured  party  to  that  of  which  he  is  improperly  deprived.  Roe 
V.  Dazvson,  3  Wils.  49  (1770)  ;  Jackson  v.  Hashrouck,  5  Johns.  (N.  Y.)  366 
CiSio);  Jackson  ex  dem.  Sutherland  v.  Stiles,  5  Cow.  (N.  Y.)  418  (1826^; 
Den  ex  dem.  Hicks  v.  Johnson,  12  N.  J.  L.  275  (1831)  ;  Coleman  v.  Doe  ex 
dem  Henderson,  3  111.  (2  Scam.)  251  (1840)  ;  Shaiv  v.  Bayard,  4  Pa.  St.  257 
C1846);  Natchez  v.  Vandervelde,  31  Miss.  706,  66  Am.  Dec.  581  (1856); 
.Skinner  v.  Hannan,  81  Hun  (N.  Y.)  376,  30  N.  Y.  S.  987,  63  N.  Y.  St.  180 
Ci8q4)  ;  Russell  v.  Webh,  96  Ark.  100,  131  S.  W.  456  (1910).  See  also  Oetgen 
V.  Ross,  47  111.  142,  95  Am.  Dec.  468  (1868). 

'The  execution  is  not  complete  until  the  sheriff  and  his  officers  are 
gone  and   the  plaintiff   left  in    full,   quiet   and   peaceful   possession.    Dame 


CLARK   V.    PARKINSON  8ll 

CLARK  V.  PARKINSON 

Supreme  Judicial  Court  of  Massachusetts^  1865 
92  Mass.  133 

Petition  by  a  deputy  sheriff  for  an  attachment  for  contempt 
against  the  respondents,  for  resisting  the  service  of  a  writ  of  pos- 
session issued  by  this  court  and  committed  to  the  petitioner  for 
service. 

At  tlie  hearing  in  this  court,  before  Ploar,  J.,  notice  having  been 
given  to  the  respondents,  it  appeared  that  the  suit  in  which  the 
writ  of  possession  issued  was  brought  against  a  widow  who,  at  the 
time  of  the  commencement  thereof,  was  in  actual  occupation  of  the 
premises,  her  son  and  daughter  hving  with  her  and  claiming  title  to 
the  premises  under  their  father.  The  son,  who  was  one  of  the 
respondents  in  this  petition,  was  then  under  twenty-one  years  of 
age.  The  other  respondent  married  the  daughter  after  the  com- 
mencement of  the  suit,  and  at  the  time  of  the  marriage  came  upon 
the  premises,  claiming  title  in  right  of  his  wife.  The  respondents 
were  not  parties  to  the  suit  in  which  the  writ  of  possession  issued ; 
and  they  did  not  resist  the  removal  of  the  defendant  in  that  suit 
from  the  premises,  or  oppose  the  officer's  putting  the  plaintiff  in 
possession,  so  far  as  that  could  be  done  without  removing  them ; 
but  they  did  threaten  and  were  prepared  to  use  force  to  prevent  the 
officer  from  removing  them  from  the  land,  contending  that  th^  pre- 
cept gave  him  no  right  or  authority  so  to  expel  them,  and  that  it 
could  be  fully  executed  without  putting  them  out. 


Molincux  v.  Fidgam,  Palm.  289  (1622)  ;  Kingsdale  v.  Mann,  6  Mod.  27  (1703)  ; 
Den  ex  dem.  Smalhvood  v.  Bilderback,  16  N.  J.  L.  497  (1838)  ;  Scott  v. 
Richardson,  2  B.  Mon.  (Ky.)  507  (1842)  ;  Farnsworth  v.  Fowler,  i  Swan 
(Tenn.)  i,  55  Am.  Dec.  718  (1851)  ;  IVitbeck  v.  Van Renselaer,  64  N.  Y.  27 
(1876)  ;  Lank  ford  v.  Green,  62  Ala.  314  (1878)  ;  People  ex  rel.  Daniel  C. 
Sciidder  v.  Cooper,  20  Him  (N.  Y.)  486  (1880);  Nezvell  v.  Wrighani,  102 
N.  Y.  20,  6  N.  E.  673  (1886) ;  Lee  Chuck  v.  Oiian  Wo,  81  Cal.  222,  22  Pac.  594, 
15  Am.  St.  ^o  (1889)  ;  Loeb  v.  JValler,  no  Ala.  487,  18  So.  268  (1895)  ;  Butler 
V.  Frontier  Tel.  Co.,  186  N.  Y.  486,  79  N.  E.  716,  il  L.  R.  A.  (N.  S.)  920, 
116  Am.  St.  563  (1906).  Thus,  the  writ  is  not  duly  executed  where  the 
sheriff  gives  formal  possession  but  the  plaintiff  is  obliged  to  leave  immedi- 
ately to  avoid  personal  violence  by  a  mob.  Grcsham  V.  Thun,  3  Mete.  (Ky.) 
287,  yy  Am.  Dec.  174  (i860).  So,  where  on  the  removal  of  the  tenants  another 
person  with  an  officer  to  support  his  pretensions  assumes  possession.  Union 
Township  v.  Bayliss,  40  N.  J.  L.  60  (1878).  But  a  physical  expulsion  is  unnec- 
essary if  the  defendant  peaceably  submits  to  the  writ.  Smith  v.  White, 
5  Dana  (Ky.)  376  (1837),  where  it  is  said:  "A  defendant  may  surely  yield 
obedience  to  the  process  of  the  court,  without  being  forcibly  turned  out, 
neck  and  heels."  In  Wenoert  v.  Zimmerman,  33  Pa.  St.  5o8_(i859),  it  is  said: 
"It  is  very  common,  and  in  the  wmter  time  a  most  proper  mode  of  executing 
such  writs,  to  take  a  lease  on  a  nominal  rent  from  the  defendant,  and  leave 
him  in  possession."  The  removal  of  the  defendant's  furniture,  while  proper, 
is  not  indispensable  in  all  cases.'  Witbeck  v.  Van  Rensselaer,  64  N.  Y.  27 
C1876)  ;  Union  Township  v.  Bayliss,  40  N.  J.  L.  60  (1877)  ;  Commonwealth  v. 
Lennori,  172  Mass.  434,  52  N.  E.  521  (1899). 


8l2  EXECUTION 

Upon  these  facts  the  case  was  reserved  for  the  determination 
of  the  whole  court."* 

IIOAU,  ].:  The  court  are  of  opinion  that  an  attachment  for  con- 
tempt should  not  be  granted;  because  an  officer,  serving  a  writ  of 
possession,  has  no  authority  by  his  precept  to  remove  from  the  land 
described  therein  any  person  who  is  not  a  defendant  in  the  suit  in 
which  the  writ  issued,  nor  holding  under  a  defendant,  and  who  was 
in  occupation  of  the  land  at  the  time  the  suit  was  commenced,  claim- 
ing by  a  title  independent  of  the  defendant.  The  writ  of  possession 
is  the'  result  or  fruit  of  a  judgment;  and  the  judgment  is  the  legal 
determination  of  the  rights  of  those  only  who  are  parties  or  privies 
to  it.  Even  a  judgment  in  rem  is  binding  upon  all  persons  in  interest, 
only  because  all  persons  in  interest  are  required,  and  have  a  right 
to  come  in  and  assert  their  title  to  the  property  which  the  judgment 
binds,  in  the  suit  or  proceeding  in  which  the  judgment  is  rendered. 

It  is  apparent  that  the  judgment  of  the  court  in  a  real  action, 
although  it  may  determine,  as  against  the  tenant,  that  he  held  un- 
lawful possession  of  the  demanded  premises  at  the  time  of  bringing 
the  suit,  can  not  decide  this  as  against  any  person  not  privy  in  estate 
with  him.  The  judgment  may  be  recovered  upon  default,  wdiich  is 
taken  as  the  confession  of  the  tenant,  and  can  bind  no  one  but  him- 
self and  those  claiming  under  him.  If  it  is  the  result  of  a  trial, 
there  is  no  good  reason  why  it  should  be  held  more  conclusive  upon 
the  possession  than  upon  the  title.  In  either  case  it  is  a  judgment 
between  the  parties,  upon  such  a  case  as  they  have  chosen  or  have 
been  able  to  present. 

The  officer  who  serves  the  writ  may  take  a  bond  of  indemnity, 
and  the  English  text-books  all  state  that  it  is  the  usual  practice  to 
do  so.^  This  may  dispose  of  the  objection  that  he  is  required  by 
his  precept  to  do  a  precise  thing,  and  that  he  should  not  have  to 
determine  at  his  peril  whether  he  is  thereby  committing  a  trespass. 
The  writ  is  procured  by  the  demandant  in  the  real  action,  and  it_  is 
for  him  to  take  care  that  he  includes  in  his  suit  all  the  actual  parties 
in  possession,  claiming  title. 

We  find  that  the  text-books  on  the  duties  of  sheriffs  all  state 
in  general  terms  that  in  serving  a  writ  of  possession  he  should  re- 
move all  persons  from  the  premises;  and  the  digest  and  dicta  in 
reported  cases  undoubtedly  contain  a  similar  statement.  They  all 
adopt  substantially  the  same  language,  which  is  taken  from  Upton 


^The  arguments  of  counsel  are  omitted. 

'If  there  is  a  reasonable  doubt  whether  a  person  in  possession  should  be 
turned  out,  the  officer  before  acting  may  demand  indemnity.  Dupont  v.  Ervin, 
2  Brev.  (S.  Car.)  400  (1810)  ;  Long  v.  Neville,  36  Cal.  455,  95  Am.  Dec.  199 
(1868)  ;  Grace  v.  Mitchell,  31  Wis.  533,  n  Am.  Rep.  613  (1872)  ;  Hamberger 
V.  Seavey,  165  Mass.  505,  43  N.  E.  297  (1896).  But  the  officer  is  not  clothed 
with  any  judicial  power  to  pass  on  the  rights  of  the  parties,  and,  unless 
instructe'd  differently  by  the  court,  his  duty  is  to  deliver  possession  according 
to  the  mandate  of  the  writ.  Mason  v.  Payntcr,  I  Ad.  &  El.  (N.  S.)  974 
(1841)  ;  Bowie  v.  Brake,  4  Duer  676,  2  Abb.  Prac.  161,  11  N.  Y.  Super.  Ct. 
676  (1855)  ;  Powell  V.  Lawson,  49  Ga.  290  (1873)  ;  HaU  v.  Dexter,  Fed  Cas. 
No.  5929,  3  Sawy.  (U.  S.)  434  (1875);  Huntington  v.  Taylor,  156  Fed.  700 
(1907),  affd.jSj  Fed.  703- 


CLATiK   V.    PARKINSON  813 

V.  Wells,  I  Leon.  145;  Com.  Dig.  Execution,  A.  5;  Crocker  on 
Sheriffs,  sections  554,  556,  557;  Allen  on  Sheriffs,  251 ;  N.  E.  Sheriff, 
141.  In  Howe  v.  Butterfield,  4  Cush.  (Mass.)  305,  it  was  said  by- 
Mr.  Justice  Wilde  that  an  officer  was  authorized  and  bound,  for  the 
purpose  of  delivering  possession  of  a  house,  "to  remove  from  the 
possession  all  persons  therein,  and  especially  those  claiming  under 
the  party  against  whom  judgment  had  been  recovered."  But  all  these 
expressions  must  be  construed  secundum  subjectam  materiem,  and 
as  referring  to  the  tenant,  or  persons  in  privity  with  the  tenant,  or 
mere  strangers  or  intruders.  No  case  has  been  cited  in  which  it 
was  decided  that  one  in  possession  before  the  commencement  of  the 
suit  could  be  lawfully  dispossessed  upon  an  execution  issuing  upon 
a  judgment  in  a  suit  between  third  persons.  And  in  Gwynne  on 
Sheriffs,  418,  the  rule  is  stated  otherwise,  and  the  true  distinction 
made.  In  Ex  parte  Reynolds,  i  Caines  (N.  Y.)  500,  it  is  said  to  be 
"a  settled  rule  of  practice  that  no  tenant  who  was  in  possession 
anterior  to  the  commencement  of  an  ejectment,  can  be  dispossessed 
upon  a  judgment  and  writ  of  possession,  to  which  he  is  no  party"  ; 
and  a  writ  of  restitution  was  ordered.  To  the  same  effect  are  the 
Kentucky  cases  in  5  Littell  305  ;  i  A.  K.  Marsh.  333  ;  2  A.  K.  Marsh. 
40.    See  also  2  Tidd's  Practice  1033 ;  Johnson  v.  Fullerton,  44_]r'a. 

Petition  dismissed.® 


"Under  the  writ  of  possession  the  officer  must  remove  not  only  the 
defendant  but  all  others  in  possession  in  subordination  to  or  in  privity  v^^ith 
him.  Ex  parte  Black,  2  Bailey  (S.  Car.)  8  (1830)  ;  Howe  v.  Butterfield, 
58  Mass.  302,  50  Am.  Dec.  785  ( 1849)  ;  Den  ex  dcm.  Thomas  Hancock  v.  Fen, 
24  N.  J.  L.  544  (1854)  ;  Hanson  v.  Armstrong,  22  111.  442  (1859)  ;  Johnson  v. 
Fiillerton,  44  Pa.  St.  466  (1863)  ;  Wetherhee  v.  Dunn,  36  Cal.  147,  95  Am.  Dec. 
166  (1868)  ;  Fiske  v.  Chamberlin,  103  Mass.  495  (1870)  ;  MojiongaJiela  V.  C. 
M.A.  v.  Patterson.  06  Fa.  St.  460  (1^880)  ;  Gray  v.  Nunan,  63  Cat  226  (1883)  ; 
HTierstal  v.  Muir,  64  Cal.  450,  2  Pac.  33  (1884)  ;  Ritchie  v.  Johnson,  50  Ark. 
551,  8  S.  W.  942,  7  Am.  St.  118  (1888)  ;  Hessel  v.  Jghnjon,  124  Fa.  St.  233, 
16  Atl.  855  (1889)  ;  Xellv  v.  Northrot>.  i ^oTPai^^St:  537,  28  Atl.  364  (1^4)  ; 
State  v.  Staed,  143  Mo.  248,  45  S.  W.  50  (1897)  '^Vampbcll  v.  Rockzuell,  62 
App.  Div.  266,  70  N.  Y.  S.  lioi  (1901)  ;  Harrod  v.  Burke,  76  Kans.  900,  92 
Pac.  1128,  123  Am.  St.  179  (1907)  ;  Dclacey  v.  Commercial  Trust  Co.,  51  Wash. 
542,  99  Pac.  574  (1909)  ;  Hillyard  V.  Fick,  89  Kans.  108,  130  Pac.  675  (1913). 
But  not  strangers  to  the  proceeding  in  possession  under  a  claim  of  title 
anterior  to  the  suit  nor  persons  whose  possession  is  distinct  from  that  of  the 
parties  to  the  action.  Howard  v.  Kennedy,  4  Ala.  592,  39  Am.  Dec.  307  (1843)  ; 
Kercheval  v.  Ambler,  7  J.  J.  Marsh.  (Ky.)  626,  23  Am.  Dec.  446  (1832); 
Smith  v.  Pretty,  22  Wis.  655  (1868);  Goerges  v.  Hnfschmidt,  44  Mo.  179 
(1869)  ;  Mayo  v.  Sprout,  45  Cal.  99  (1872)  ;  Irving  v.  Cunningham,  yy  Cal.  52, 
18  Pac.  878  (1888)  ;  Bushong  v.  Rector,  32  W.  Va.  311,  9  S.  E.  225,  25  Am.  St. 
817  (1889)  ;  ijessd  V.  Fritf,,  T ?rtJPlL-St  229,  16  Atl.  853  (1889)  ;  Krepps  v. 
Mitchell,  156  Pa.  St.  .-^20.  27  Atl.  161  (180-^^  ;  Haviland  v.  Chase,  116  Mich. 
214,  74  N.  W.  477,  72  Am.  St.  519  (1898)  ;  Cyprcanson  v.  Berge,  112  Wis.  260, 
%7  N.  W.  1081  (1901);  Moseby  v.  Fleck  242  Pa.  154,  88  Atl.  940  (1913)  ; 
Puckett  v.  Jameson,  157  Ky.  172,  162  S.  W.  801  (1914)/ 

Where  the  recovery  is  of  an  undivided  interest  in  an  estate,  it  is  not 
the  duty  of  the  sheriff  to  eject  the  co-tenants,  but  to  put  the  plaintiff  in 
possession  with  the  others.  Dupont  v.  Ervin,  2  Brev.  (S.  Car.)  400  (iSio)  ; 
Ash  V  McGill.  6  Whart. /Pa.")  -^jot  (1841)  ;  Doe  ex  dem.  Hellyer  v.  King, 
6  Kxch.  791  (1851)  ;  Tevts  V.  Flicks,  38  Cal.  234  (1869)  ;  Stokes  v.  Morrow, 
54  Ga.  597  (1875)  ;  Skinner  v.  Flannan,  81  Hun  (N.  Y.)  376,  30  N.  Y.  S.  987. 
63  N.  Y.  St.  180  (1894). 


Sl4  EXECUTION 

JACKSON  EX  DEM.  MIIJ^ER  v.  HAWLEY 

Supreme  Court  or  New  York,  1834 

II  IV cud.  (iV.  Y.)  182 

At  the  last  January  term  judgment  was  entered  for  the  plain- 
tiff upon  a  cognovit.  About  the  first  of  March  a  writ  of  habere 
facias  possessionem,  returnable  at  the  next  May  term,  was  issued 
and  executed  by  delivering  possession  of  the  premises  claimed  to 
an  agent  of  the  plaintiff,  who  continued  in  possession  four  or  five 
days;  when  one  Alfred  Pitcher  entered  by  force,  as  alleged  on  the 
part  of  the  plaintiff;  Pitcher,  however,  insisting  that  he  found  the 
possession  vacant  when  he  entered.  A  motion  was  made  for  an 
alias  habere  facias,  which  was  resisted  by  Pitcher,  on  various 
grounds  and  among  others,  that  he  was  the  owner  of  the  property. 
The  court,  however,  in  the  decision  of  the  motion,  say  that  he  is 
not  a  stranger  to  the  suit,  and  that  he  is  estopped  from  alleging 
title,  in  himself,  no  collusion  being  alleged  between  the  plaintiff  and 
Hawley,  the  defendant,  who  gave  the  cognovit.'^ 

Savage,  C.  J. :  The  question  is,  whether  the  plaintiff  can  have 
a  new  writ,  or  whetlier  he  is  compelled  to  bring  a  new  action.  It  is 
remarkable  that  so  little  is  to  be  found  on  this  subject,  either  in  our 
own  or  the  English  books.  In  our  own  reports  we  find  nothing, 
and  in  the  English  reports  contradictory  decisions.  The  old  rule  is 
stated  by  Adams,  in  his  Treatise  on  Ejectment,  page  309.  If  the 
lessor  be  ousted  by  the  defendant  after  possession  delivered  to  him, 
upon  a  hab.  fac.  poss.  and  before  the  writ  is  returned  and  filed,  he 
shall  have  a  new  writ  or  attachment;  but  if  he  be  ousted  by  a 
stranger,  he  shall  be  driven  to  a  new  ejectment.  The  reason  as- 
signed for  the  distinction  is  this,  that  the  defendant  shall  not  by  his 
own  act  keep  the  possession  which  has  been  recovered  from  him 
by  due  course  of  law ;  but  as  to  the  stranger,  there  has  been  no 
trial  between  him  and  the  plaintiff,  and  he  may  have  the  better  title. 
In  Goodright  v.  Hart,  2  Str.  830,  the  plaintiff  had  obtained  judg- 
ment by  prevailing  upon  the  tenants  not  to  appear;  after  writ  of 
possession  executed,  the  landlord  prevailed  upon  the  tenants  to 
attorn  to  him.  The  plaintiff  moved  for  a  new  writ  of  possession, 
which  the  court  refused  saying,  if  immediately  after  the  writ  exe- 
cuted, the  tenants  had  attorned,  a  new  writ  should  have  been  issued, 
but  not  where  the  possession  had  been  delivered  for  about  a  month, 
as  it  had  in  that  case.  In  Rex  v.  Harris,  Ld.  Raym.  482,  Holt, 
Chief  Justice,  said  if  possession  be  delivered  by  hab.  fac.  poss.  and 
that  is  avoided  immediately,  the  party  shall  have  a  new  writ ;  but 
if,  after  restitution  awarded,  the  party  enjoys  quiet  possession,  and 
then  is  removed  by  new  force,  he  must  resort  to  a  new  remedy.  In 
Kingsdale  v.  Mann,  Salk.  321,  6  Mod.  27,  possession  was  delivered 


'Part  o-f  the  opinion  of  the  court  is  omitted. 


JACKSON    EX    BEM.    MILLER    V.    IIAWLEY  815 

about  nine  In  the  morning,  and  at  six  at  night  the  plaintiff  vras 
forcibly  put  out  of  possession ;  the  court  doubted  whether  a  new 
writ  should  issue.  They  said  if  the  disturbance  had  been  made 
before  the  officer  had  departed,  an  attachment  would  have  been  is- 
sued. Powell  quoted  a  case  where  an  entry  upon  the  plaintiff  was 
made  the  same  day  of  the  execution  of  the  writ,  and  the  Court  of 
Common  Pleas  granted  a  new  writ;  to  which  Holt  answered,  so 
they  might,  if  the  first  writ  were  not  returned,  otherwise  not.  From 
this  case  the  remedy  would  seem  to  depend  upon  the  fact  whether 
the  first  Vi^rit  had  been  returned ;  and  from  the  case  in  Strange,  upon 
the  plaintiff's  enjoying  quiet  possession  for  a  month  or  more.  But 
these  cases  and  some  others,  it  is  supposed,  were  disregarded  and 
perhaps  overruled  by  the  case  of  Doe  v.  Roe,  i  Taunt.  55,  where 
the  court  held  that  an  alias  can  not  issue  after  a  writ  is  executed; 
and  it  is  added  that  if  it  could,  the  plaintiff,  by  not  having  the  first 
writ  returned,  might  retain  the  right  of  suing  out  a  new  writ,  as  a 
remedy  for  any  trespass  by  the  tenant  within  twenty  years  after  the 
date  of  the  judgment.  In  that  case  possession  had  been  delivered 
to  the  plaintiff  in  February,  and  in  October  following  the  tenant 
forcibly  entered.  This  last  case  is  certainly  not  obligatory  upon 
us,  and  all  the  older  cases  agree  that  where  the  entry  upon  the 
plaintiff  is  before  the  return  of  the  writ  and  such  entry  is  by  the 
tenant  or  under  his  title,  the  plaintiff  is  entitled  to  a  new  writ.  In 
one  case  the  court  were  willing  to  extend  this  remedy  for  a  month ; 
in  another  they  doubted  where  the  execution  of  the  writ  and  the 
subsequent  forcible  entry  were  upon  the  same  day.  Fi^om  the  re- 
mark of  Lord  Holt,  the  writ  in  that  case  must  have  been  returned 
before  the  motion  was  made;  and  he  probably  applied  the  reason 
given  in  i  Taunt,  that  if  the  first  execution  is  returned  satisfied, 
there  can  be  no  alias.  I  am  satisfied  that  the  practice  in  this  state 
has  been  to  award  a  new  writ  of  possession  where  the  first  has  not 
been  returned,  where  the  defendant  has  entered  upon  the  plaintiff's 
possession.^ 

Motion  granted. 

'The  plaintiff,  if  dispossessed  by  the  defendant  before  the  return  of  the 
writ,  may  apply  for  another  writ  of  possession  or  call  upon  the  sheriff  to 
place  him  again  in  possession.  Dame  Molincux  v.  Fulgaiu,  Palm.  289  (1622)  ; 
Ratcliffv.  Tate,  i  Keb.  779  (1664)  ;  Doggct  v.  Roe,  Comb.  150  (1689)  ;  King 
V.  Harris,  12  Mod.  268  (1699)  ;  Linehan  v.  Anthony,  Batt}^  453  (1826)  ;  Doe 
ex  dem.  Thompson  v.  Mirehouse,  2  Dowl.  200  (1833)  ;  Doe  ex  dem.  Pitcher 
V.  Roe,  g  Dowl.  971  (1841)  ;  Doe  ex  dem.  Lloyd  v.  Roe,  2  Dowl.  (N.  S.)  407, 
7  Jur.  352  (1842)  ;  Masscy  v.  Ejector,  i  Jones  Exch.  457  (1835)  ;  Stacpoole  v. 
Walsh,  L.  R.  6  Ir.  444  (1880)  ;  Jackson  ex  dem.  Thompson  v.  Stiles,  9  Johns. 
(N.  Y.)  391  (1812)  ;  United  States  v.  Slay  maker,  4  Wash.  C.  C.  169,  Fed.  Cas. 
No.  16313  (1821);  Criffeth  v.  Dobson,  3  Pen.  &  Watts  (Pa  )  228  (1831)  ; 
Gresham  v.  Thum,  3  Metc7"(Ky.)  287,  jy  Am.  Dec.  174  (i860)  ;  Van  Rensse- 
laer V.  Witheck,  2  Lans.  (N.  Y.)  489  (1870).  If  the  sheriff  has  returned  the 
writ  showing  due  execution,  the  plaintiff,  if  afterward  dispossessed,  is  left 
to  his  remedy  by  action.  Loveless  v.  Ratcliff,  i  Keb.  785  (1664)  ;  Doe  ex  dem. 
Pate  V.  Roe,  i  Taunt.  55  (1807)  ;  Wilson  v.  Chant  on,  6  L.  T.  (N.  S.)  253 
(18^2)  ;  Mayo  v.  Chiles,  3  T.  B.  Mon.  (Ky.)  258  (1826)  ;  Dent  v.  Simmons, 
7  J.  J.  Marsh.  (Ky.)  42  (1831)  ;  Hinton  v.  McNeil,  5  Ohio  509,  24  Am.  Dec. 
315   (1832);  Fowler  v.  Currie,  2  Dana   (K}^)   52,  26  Am.  Dec.  436  (1S34)  ; 


8l6  KXKCUTION 


li'catltrrht-od  v.  Cumi'wghavi,  4  Dana  (Ky.)  78  (1836)  ;  Hough  v.  Norton,  g 
Oliio  45  (1S39)  ;  Atii'ood  V.  .S7(//<-,  ^g  Kans.  y^S,  54  Pac.  10^7,  68  Am.  St.  393 
(1898): 

_In  Pccnsylvaiiia  under  the  Act  of  February  I,  1834,  P.  L.  26,  P.  &  L.  Dip. 
(2d  ed.)  30.VI,  alias  and  phirics  writs  may  1)C  aTToweu  T)y  the  court  on  cause 
shown.  r/iiWi://L/n'<i  v..  i/auijL^__ra-  Super.  Ct.  373  (1897).  In  CaHfornia 
inidcr  §  i_MO  of  tlie  Code  of  Civil  Procedure  a  person  re-entcrin,u:  after 
beini;  dispossessed  by  process  of  law  is  puiUy  of  contempt  of  court  and 
tipon  conviction  tlie  court  must  issue  an  alias  process  to  restore  to  possession 
tlie  person  entitled.  Batchcldcr  v.  Moore,  42  Cal.  412  (1871);  Huerstal  v. 
Mn'xr.  62  Cal.  479  (1880)  ;  Dutra  v.  Pcrcira,  135  Cal.  320,  67  Pac.  281  (1902). 
See  also  Baker  v.  Butte  Water  Co.,  40  Mont.  583,  107  Pac.  819  (1910). 


CHAPTER  VII 
Appeal  and  Error 

"  *A  writ  of  error'.  This  writ  lieth  when  a  man  is  grieved  by 
an  error  in  the  foundation,  proceeding,  judgment  or  execution,  and 
thereupon  it  is  called  breve  de  errore  corrigendo.  But  without  a 
judgment,  or  an  award  in  nature  of  a  judgment,  no  writ  of  error 
doth  lie;  for  the  words  of  the  writ  be,  si  judicium  redditum  sit,  and 
that  judgment  must  regularly  be  given  by  judges  of  record,  and  in  a 
court  of  record,  and  not  by  any  other  inferior  judges  in  base  courts, 
for  thereupon  a  writ  of  false  judgment  doth  lie."  Coke  on  Little- 
ton, f.  288b.i 


SECTION  I.    NATURE  OF  THE  REMEDY 

STEVENS  V.   CLARK 

Circuit  Court  of  Appeals  of  United  States,  Seventh  Circuit, 

1894 

62  Fed.  321 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the 
■Northern  District  of  Illinois.- 

BuNN,  J.:  There  is  in  this  case  a  preliminary  question  of  juris- 
diction to  be  decided.  The  action  was  one  at  law,  to  recover  dam- 
ages upon  a  contract  for  the  delivery  of  ice.  The  casei  was  tried 
before  a  jury  in  January,  1893,  and  a  verdict  rendered  for  the 
plaintiff  on  January  13,  1893,  for  $4,397.97.  On  February  20,  1893, 


^At  common  law  a  writ  of  error  was  an  original  writ,  issuing  out  o£ 
chancery  at  the  instance  of  a  party  aggrieved  by  any  error  in  the  foundation, 
proceeding,  judgment  or  execution  of  a  suit  in  a  court  of  record  and  was  in 
the  nature  of  a  commission  to  the  judges  of  the  superior  court  to  examine 
the  record  upon  which  tlie  judgment  was  given  and  to  affirm  or  reverse  it 
according  to  law.  Jaqucs  V.  Cesar,  2  Saund.  100  (1670)  note;  2  Bac.  Abr.  187. 
The  writ  was  grantable  ex  debito  justitiae  in  all  cases  except  in  treason  and 
felony.  Queen  v.  Paty,  2  Salk.  504  (1705)  ;  Yates  v.  People,  6  Johns.  (N.  Y.) 
337  (1810);  Lymes  v.  State,  5  Porter  (Ala.)  236,  30  Am.  Dec.  557  (1837); 
Lippitt  V.  Bidwcll,  87  Conn.  608,  89  Atl.  347  (1913)  ;  2  Tidd's  Pr.  (9th  ed.) 
1 134;  I  Archbold's  Pr.  1345. 

In  England  the  judicature  acts  have  abolished  proceedings  in  error  and 
substituted  an  appeal  in  all  cases  where  the  Court  of  Appeal  has  occasion  to 
deal  with  proceedings  in  the  High  Court.  These  acts  give  the  Court  of  Appeal 
more  elastic  powers  than  were  formerly  exercised  on  writ  of  error.  Appeals 
are  by  way  of  rehearing  with  full  discretionary  power  to  receive  further 
evidence  on  questions  of  fact;  and  to  give  any  judgment  or  make  any  order 
which  ought  to  have  been  made  or  to  grant  a  new  trial.  Appeals  are  brought 
in  a  summary  way  and  no  petition,  case  or  other  formal  proceedings  other 
than  notice  of  motion  are  necessary.  Rules  of  the  Supreme  Court,  Order 
LVIII,  rules  1-20.  Judicature  Act  of  1873,  §§  18,  19.  An  appeal  lies  from  the 
Court  of  Appeal  to  the  House  of  Lords,  which  appeal  is  by  way  of  petition 
praying  for  a  review  of  the  order  or  judgment  appealed  from.  Appellate 
Jurisdiction  Act  of  1876,  §§  3,  4. 

*Part  of  the  opinion  of  the  court  is  omitted. 

52— Civ.  Proc.  817 


8l8  APPEAL  AND   KRROR 

a  motion  for  .1  new  trial  was  overruled,  and  judgment  entered  for 
tlio  plaintilT  upon  the  verdict.  On  April  19th,  au  appeal  was  prayed 
for  and  allowed.  The  case  was  argued  upon  the  merits  on  October 
5,  1S93,  ^vithout  any  objection  being  raised  as  to  the  jurisdiction  of 
this  court  to  hear  the  case.  It  was  afterwards  discovered  by  the 
court  that  no  writ  of  error  had  ever  been  prayed  for  or  issued,  and, 
the  attention  of  counsel  being  called  to  the  fact,  argimient  was  had 
and  bi'iefs  were  filed  on  the  question  whether  or  not  this  court  could 
take  jurisdiction  of  the  case  by  consent,  without  a  writ  of  error  ever 
having  been  issued.  If  it  could,  then  the  objection  on  tliis  ground 
must  be  considered  as  waived  by  the  parties  having  argued  and 
submitted  the  case  upon  the  merits  without  objection. 

We  are  of  opinion  that  this  court  has  not  obtained  jurisdiction 
of  tlie  case,  and  that  the  appeal  must  be  dismissed.  The  appropriate 
and  only  mode  of  bringing  cases  of  law  for  reviev/  before  this  court 
is  a  writ  of  error.  An  appeal  is  applicable  only  in  chancery  cases. 
The  distinction  is  obvious,  and  has  been  steadily  observed  and 
maintained  by  the  United  States  Supreme  Court  for  a  century. 
Equity  cases  must  be  brought  up  by  appeal,  which  brings  up  the 
entire  record  upon  the  facts  as  well  as  the  law.  Cases  at  law  can 
only  be  brought  up  by  writ  of  error,  which  simply  brings  up  tlie 
record  for  tlie  correction  of  errors  of  law ;  that  is  to  sa}-,  a  writ  of 
error  carries  up  nothing  but  questions  of  law,  and  these  questions 
are  to  be  determined  according  to  the  facts  found  in  the  record.  An 
appeal  carries  up  ever3'thing.  It  substitutes  the  higher  court  in 
place  of  the  lower,  and  all  questions,  whether  of  fact  or  of  law,  de- 
pending upon  evidence  or  law,  may  be  re-examined  by  the  appellate 
court,  just  as  they  w'cre  originally  examined  by  the  lower  court 
having  original  jurisdiction.  This  was  tlie  practice  in  England  at 
the  time  of  the  adoption  of  our  constitution,  and  had  been  for  a 
long  time;  but  by  some  oversight  or  omission  in  the  original  judici- 
ary act  of  September  24,  1789  (i  Stat.  ch.  20),  this  distinction  was 
not  preserved,  and  that  statute  (section  22)  provided  generally 
for  the  review  of  cases  going  up  from  the  circuit  court,  whether 
legal  or  equitable,  by  writ  of  error;  so  that  in  all  cases,  whether  at 
law  or  in  equity  or  admiralty,  a  writ  of  error  was  the  proper  pro- 
ceeding to  obtain  a  review  in  the  Supreme  Court.  After  this  law 
had  remained  in  force  about  fourteen  years,  from  September,  1789, 
to  March,  1803,  this  distinction,  which  had  always  existed  in  the 
English  practice,  was  found  so  important  that  congress  changed  the 
law,  by  act  of  ]\Iarch  3,  1803  (2  Stat.  ch.  40),  by  providing  that,  in 
cases  of  equity  and  admiralty  and  maritime  jurisdiction,  and  of 
prize  and  no  prize,  an  appeal  should  be  allowed  to  the  Supreme 
Court.  The  effect  of  this  provision  was  to  repeal,  by  implication, 
the  law  of  1789,  so  far  as  that  allowed  a  writ  of  error  in  a  case  in 
equity  or  admiralty,  and  to  harmonize  the  system  of  appellate  juris- 
diction, and  make  it  conform  to  the  ancient  and  well-established 
principles  of  judicial  proceedings.  The  writ  of  error,  in  cases  at 
common  law,  remains  in  force,  and  submits  to  the  revision  of  the 
Supreme  Court  only  the  law.   The  remedy  by  appeal  is  confined  to 


STEVENS   V.    CLARK  819 

equity  and  admiralty  cases,  and  brings  before  the  appellate  court 
the  facts  as  well  as  the  law.  These  remedies  could  never  in  the 
United  States  courts  be  used  interchangeably.  The  San  Pedro,  2 
Wheat.  (U.  S.)  132. 

There  can  be  no  doubt  that  the  law  of  1891  (chapter  517,  section 
6),^  providing  that  the  circuit  court  of  appeals  shall  exercise  appel- 
late jurisdiction  to  review,  by  appeal  or  by  writ  of  error,  final  de- 
crees and  judgments  of  the  district  and  circuit  courts  in  certain  de- 
fined cases,  preserves  the  same  distinction  which  has  hitherto  so 
long  existed,  and  that  the  proper  proceeding  in  cases  in  equity  is 
an  appeal,  and  in  cases  at  law  a  writ  of  error.  If  the  language  of 
this  provision  were  to  be  construed  literally,  either  an  appeal  or  writ 
of  error  might  be  resorted  to  for  the  purpose  of  taking  cases  either 
at  law  or  in  equity  to  this  court.  But  the  provision  should  be  con- 
strued with  reference  to  the  hitherto  existing  law  and  practice  in 
these  cases.  There  can  be  no  presumption  that  Congress  intended 
to  change  the  practice  unless  that  intention  is  plainly  manifested  by 
the  language  of  the  act. 

The  Supreme  Court  has  uniformly  held  that  it  can  obtain  appel- 
late jurisdiction  in  a  case  at  law  only  by  the  issuing  by  the  proper 
authority  of  a  writ  of  error,  and  by  filing  the  same  in  the  court 
which  rendered  the  judgment.  Brooks  v.  Norris,  11  How.  (U.  S.) 
204.  Consent  will  not  give  jurisdiction ;  and  if,  at  any  time,  the  rec- 
ord does  not  show  the  necessary  facts  to  give  the  court  jurisdiction, 
the  court  will  dismiss  the  case.  The  jurisdiction  of  all  the  United 
States  courts  is  special.  The  Supreme  Court  and  the  circuit  court 
of  appeals  possess  no  appellate  power  in  any  case  unless  conferred 
upon  them  by  act  of  congress;  nor  can  such  jurisdiction,  when 
conferred,  be  exercised  in  any  other  form,  or  by  any  other  mode  of 
proceeding,  than  that  which  the  law  prescribes.  Barry  v.  Mercien, 
5  How.  (U.  S.)  103;  United  States  v.  Curry,  6  How.  (U.  S.)  106. 
In  McColliim  v.  Eager,  2  How.  (U.  S.)  61,  it  was  decided  by  the 
Supreme  Court  that  a  decree  in  chancery  can  not  be  brought  up  for 
review  by  a  writ  of  error.  In  Sarchet  v.  United  States,  12  Pet.  (U. 
S.)  143,  which  was  an  action  at  law  upon  a  bond  (opinion  by  Chief 
Justice  Taney),  it  was  held  that  the  case  could  not  be  brought  to 
the  Supreme  Court  by  an  appeal,  but  must  come  up  on  writ  of  error, 
to  give  the  court  jurisdiction;  and  the  court  say  in  that  case  it  had 
been  so  repeatedly  held  by  that  court.  In  Ballance  v.  Forsyth,  21 
How.  (U.  S.)  389  (opinion  by  Chief  Justice  Taney),  the  same  doc- 
trine was  reaffirmed ;  and  it  was  held  further,  that  where  an  appeal 
had  been  taken  and  dismissed,  and  a  motion  made  to  reinstate  the 
case,  and  a  stipulation  to  that  effect  signed  and  filed  by  the  parties, 
tliat  consent  could  not  give  jurisdiction  where  the  law  did  not. 

In  the  case  at  bar  no  writ  of  error  has  ever  been  issued,  and  the 
time  for  issuing  one  has  expired  a  month  prior  to  the  hearing. 
The  result  is,  the  appeal  must  be  dismissed.* 


'Supplied  by  Federal  Judicial  Code  of  1911,  §  128;  U.  S.  Comp.  Stats. 
(1913),  §  1 120. 

^In  Wiscart  v.  Daiichy,  s  Dall.  (U.  S.)  321,  i  L.  ed.  619  (1796),  it  is  said 
by  Ellsworth,  C.  J.:    "The  judicial  statute  of  the  United  States  speaks  of  an 


S-20  APPEAL    AM)    ERROR 


RAXD  i:  KING 

Supreme  Court  oe  rEN-NsvLVANiA^  1890 
134  Pa.  St.  641' 

^^'ILLIA^IS,  J. :  The  contents  of  the  paper  books,  and  the  char- 
acter of  the  oral  suggestions  made  in  this  case,  and  some  others  at 
the  present  term,  lead  us  to  believe  that  it  is  desirable  to  call  atten- 
tion once  more  to  the  difference  between  the  several  modes  of  re- 
view in  use  in  this  state.  Prior  to  the  act  of  Alay  9,  1889,*"'  there 
Avere  three  of  these  in  common  use,  and  the  peculiar  characteristics 
of  each  were  well  understood  by  tlie  profession.  That  most  gener- 
ally employed  was  the  writ  of  error,  which  lay  against  any  final 
judgment  in  any  court  of  record,  and  against  such  interlocutory  and 


appeal  and  of  a  writ  of  error  but  it  docs  not  confound  the  terms,  nor  use  them 
promiscuousl)'.  They  are  to  be  understood,  when  used,  according  to  their 
ordinary  acceptation,  unless  something  appears  in  the  act  itself  to  control, 
modify,  or  change,  the  fixed  and  technical  sense  which  they  have  previously 
borne.  An  appeal  is  a  process  of  civil  law  origin,  and  removes  a  cause  en- 
tirely; subjecting  the  facts  as  well  as  the  law,  to  a  review  and  retrial;  but 
a  writ  of  error  is  a  process  of  common  law  origin,  and  it  removes  nothing  for 
re-examination  but  the  law."  Jennings  v.  TJie  Perseverance,  3  Dall.  (U.  S.) 
336,  I  L.  ed.  625  (1S97)  ;  Blaine  v.  The  Carter,  4  Dall.  (U.  S.)  22,  i  L.  ed.  724 
(1800);  United  States  v.  Wonson,  i  Gall.  (U.  S.)  S,  Fed.  Cas.  No.  16750 
(1812)  ;  United  States  v.  Goodwin,  7  Cranch.  (U.  S.)  107  (1812)  ;  Loveless 
v.  Ransom,  109  Fed.  391  (1901)  ;  Evansville  R.  Co.  v.  Tcrrc  Haute,  161  Ind. 
26,  67  N.  E.  686  (1903)  ;  Wing  field  v.  Neall,  60  W.  Va.  106,  54  S.  E.  47  (1907). 

Nelson  v.  Lowndes  County,  United  States  Circuit  Court  of  Appeals, 
Fifth  Circuit  (1899),  93  Fed.  538.  Bill  in  equity  in  the  circuit  court  for 
an  injunction  to  restrain  a  trustee,  under  a  deed  of  trust  to  secure  notes, 
from  selling  the  land.  An  injunction  was  granted  but  afterward  a  decree 
for  its  dissolution  was  entered  unless  the  principal  and  interest  due  on 
the  notes  was  paid  within  a  given  time.  The  defendants  objected  to  the 
refusal  of  the  court  to  allow  counsel  fees  and  trustee's  compensation  and 
obtained  a  writ  of  error  to  remove  the  case  to  the  circuit  court  of  appeals. 
Held,  The  writ  of  error  must  be  dismissed.  An  appeal  is  the  only  mode  by 
which  a  decree  in  chancery  or  in  admiralty,  can  be  brought  from  an  inferior 
federal  court  to  this  court,  bringing  up  the  whole  case  for  re-examination 
on  the  merits,  whether  of  law  or  fact.  On  writ  of  error  the  merits  are  not 
under  consideration,  but  only  such  errors  as  the  court  can  from  the  record 
see  that  the  inferior  court  committed.  Accord:  Marin  v.  Lalley,  17  Wall. 
(U.  S.)  14,  21  L.  ed.  596  (1872)  ;  Murdoch  v.  Memphis,  20  Wall.  (U.  S.)  590, 
22  L.  ed.  429  (1874)  ;  Hayes  v.  Fischer,  102  U.  S.  121,  26  L.  ed.  95  (1880)  ; 
Idaho  &  O.  L.  Imp.  Co.  v.  Bradbury,  132  U.  S.  509,  33  L.  ed.  433  (1889)  ; 
Fleitas  v.  Richardson,  147  U.  S.  538,  37  L.  ed.  272  (1892)  ;  Cidberhouse  v. 
Hawthorne,  107  Ark.  462,  156  S.  W.  421   (1913). 

The  only  mode  in  which  the  Supreme  Court  of  the  United  States  may 
review  a  final  judgment  or  decree  of  a  state  court  is  by  writ  of  error.  Federal 
Judicial  Code  of  1911,  §  237;  U.  S.  Comp.  Stat.  (1913),  §  1214. 

A  writ  of  error  lies  only  upon  a  judgment  or  award  in  the  nature  of  a 
judgment,  hence  it  was  formerly  held  that  the  writ  could  not  be  brought 
before  judgment  was  formally  given,  and  although  by  later  practice  the  writ 
was  permitted  to  be  tested  before  judgment  entered,  still  an  actual  entry  was 
essential  to  the  validity  of  the  writ  before  its  return.  Tomlinson  v.  Armour, 
75  N.  J.  L.  748,  70  Atl.  314  (1907). 

'Extract  from  opinion  of  the  court. 

'i  P.  &  L.  Dig.  (2d  ed.)  303. 


RAND   V.    KING  82 1 

auxiliary  orders  as  have  been  made  reviewable  upon  it  by  statute. 
On  this  writ  the  judgment  is  reviewed  with  reference  to  alleged 
errors  which  are  pointed  out  by  exceptions  taken  to  the  action  of 
the  trial  court  at  the  time  when  the  rulings  are  made,  and  as  a  gen- 
eral rule  the  power  of  the  Supreme  Court  is  limited  to  the  questions 
so  raised.  Warsavj  Tp.  Poor  D.  v.  Knox  Tp.  Poor  D.,  107  Pa.  301. 
In  all  equity  cases,  and  those  following  the  equity  forms,  an  appeal 
from  the  decree  complained  of  is  the  proper  mode  of  review.  It 
brings  up  the  pleadings  and  the  evidence  on  which  the  decree  rests, 
and  makes  it  necessary  for  the  appellate  court  to  examine,  and  see 
whether  the  decision  is  just  and  conscionable  on  the  case  that  was 
presented  to  the  chancellor  who  made  it.  The  remaining  method 
was  by  writ  of  certiorari.  This  writ  brought  up  the  record  in  any 
given  case  for  review  and  correction,  but  it  brought  the  record 
only.  Carlson  License,  127  Pa,  330;  Holland  v.  White,  120  Pa. 
228.  The  errors  to  be  corrected  must  appear  on  the  face  of  the 
record.  Chase  v.  Miller,  41  Pa.  403 ;  and  the  merits  can  not  be  in- 
quired into  upon  this  v/rit,  but  are  left  to  the  judgment  of  the  court 
below.  Election  Cases,  65  Pa.  20.  Neither  the  opinion  of  the 
court,  nor  the  evidence  forms  any  part  of  the  record  proper,  and 
for  that  reason  they  will  not  be  examined  on  certiorari.  Holland  v. 
White,  120  Pa.  228.  The  character  of  the  proceedings  to  be  reviewed, 
suggested,  therefore,  the  method  to  be  adopted,  and  the  limits 
within  which  the  practitioner  should  direct  his  preparation. 

Since  the  Act  of  1889,  these  modes  remain  applicable  in  the 
same  cases,  within  the  same  limits,  and  with  the  same  effect  as 
before,  the  only  difference  being  that  now  they  are  all  called  by  the 
same  name.''  That  act  provides  "that  all  appellate  proceedings  in 
the  Supreme  Court  heretofore  taken  by  writ  of  error,  appeal  or 
certiorari  shall  hereafter  be  taken  in  a  proceeding  to  be  called  an 
appeal."  It  will  be  noticed  that  this  act  does  not  profess  to  extend 
the  right  of  review,  to  change  its  extent  in  cases  already  provided 
for,  or  to  modify  in  any  manner  its  exercise.  It  simply  provides 
that  dissimilar  proceedings  shall  be  called  by  the  same  name.  An 
appeal  in  name  may  therefore  be  a  writ  of  error  or  a  certiorari  in 
legal  effect,  and  it  is  necessary,  in  every  case,  to  look  into  the  rec- 
ord and  determine  at  the  outset  of  our  examination  whether  what 
is  "called  an  appeal"  is  such  in  fact,  or  is  a  writ  of  error  or  a  cer- 
tiorari.^ 


^Accord:  Gates  v  Penna.  R.  Co.,  1^4  Pa^_£L-f)66,  26  Atl.  598  (1893); 
Laird's  Abbcal.  2  Fa.  .Super.  (  t.  ^00  (1806)  •'Hapaood^S.  Co.  V.  Saupp,  7  Pa. 
b?uper.  Ct.  480JLL898)  :  lit  re  Diamond  Street.  io5~Pa.  254,  46_AtTr428  (i960)  ; 
Cofnmonwcalihv    Cnrtnrri,  48  Pa.  Super.  CxTjz  (1911). 

*The"statutory  appeal  differs  so  greatly  in  the  various  jurisdictions  that 
it  is  almost  impossible  to  lay  down  rules  that  will  precisely  indicate  its  effect. 
In  some  states  the  distinction  between  appeals  in  equity  and  writ  of  error 
are  strictly  adhered  to;  in  others  the  appeal  has  some  of  the  characteristics  of 
both.  See  People  ex  rel.  Figaniere  v.  Justices  of  New  York  Marine  Court, 
2  Abb.  Pr.  (N.  Y.)  126  (1855)  ;  Gormly  v.  Mcintosh,  22  Barb.  (N.  Y.)  271 
(1856)  ;  N.  Y.  Code  Civ.  Proc,  §  1293,  et  seq.;  Sale  v.  Pratt,  36  Mass.  (19 
Pick.)  191  (1837)  ;  Monti  v.  Guild,  44  Mass.  (3  Mete.)  2,7^  (1841)  ;  Kingsbury 
V.  S perry,  119  111.  279,  10  N.  E.  8  (1887)  ;  Mason  v.  Alexander,  44  Ohio  St. 


822  ArrKAt,    AMI    KKROR 

ANONYMOUS 

y.  B.  Hilary  Term,  21  Jlilzc.  Ill,  9  />/.  25  (1347) 

Xotc  that  Thorpe  came  to  the  bar  and  said  how  that  A  had 
brought  a  writ  of  account  against  one  B  and  was  awarded  an  ac- 
count, and  he  said  that  a  capias  ad  computandem  issued  against  him 
and  then  he  said  that  B  sued  a  writ  to  have  the  record  come  into 
the  King's  Bench,  alleging  that  he  would  have  error  for  the  sake 
of  disturbing  the  account;  and  he  prayed  that  the  record  might  not 
be  removed  until  an  account  v/as  had.  Stanford.  No  more  shall 
it ;  for  the  plea  is  not  ended  until  he  has  accounted ;  et  ea  de  causa 
tlie  court  granted  him  that  the  record  should  not  be  removed."  Quod 
nota. 


DITSON  CO.  1:  TESTA 

Supreme  Judicial  Court  of  IMassaciiusetts,  1912 

213  Mass.  109 

RuGG,  C.  J.:  This  is  an  appeal  from  an  order  of  the  superior 
court  overruling  a  plea  in  abatem.ent.  There  has  been  no  trial  on 
the  merits  and  no  judgment.  Hence  the  case  is  not  properly  here. 
It  has  been  decided  many  times  that  this  court  has  no  jurisdiction 
to  consider  an  appeal  from  any  interlocutory  decision  until  after 
judgment  unless  the  judge  reports  the  question.  Cotter  v.  Nathan 
&  Hurst  Co.,  211  Mass.  31,  and  cases  cited;  Cummings  v.  Ayer,  188 
Mass.  292;  Fay  v.  Upton,  153  Mass.  6;  Shawmut  Commercial  Paper 
Co.  V.  Cram,  212  Mass.  108.^'' 

Appeal  dismissed. 


318  (1886)  ;  White  v.  Howd,  66  Conn.  264,  33  Atl.  915  (1895)  ;  Bumbalck  v. 
Peehl,  95  Wis.  127,  70  N.  W.  71  (1897)  ;  Neb.  Trust  Co.  v.  Lincoln  R.  Co., 
53  Nebr.  246,  73  N.  W.  546  (1897)  ;  Baker  v.  Belvin,  122  N.  Car.  191,  30  S.  E. 
337  (1898);  Lippitt  V.  Bidwell,  87  Conn.  608,  89  Atl.  347  (1914)  ;  Elbert  v. 
Scott,  90  Atl.  (Del.)  587  (1914)  ;  In  re  Hanbury,  160  App.  Div.  662,  146  N.  Y. 
S.  44  (1914)- 

•Accord:  Wood  v.  Medcalf,  i  Rolle  85  (1614)  ;  Metcalfe's  Case,  11  Coke 
38  (1614)  :  B Ciller  V  Zeigler.  i  Pen   &  W.  (Pa  )  135  (1829). 

Countess  of  IVarzvick  v.  The  Lord  Bcrlic^ey,  Cro.  Eliz.  644  (1598).  In 
a  writ  of  partition,  judgment  was  quod  partitio  fiat.  Whereupon,  before  the 
second  judgment,  Lork  Berkeley  brought  a  writ  of  error.  But  all  the  court 
held,  that  until  the  second  judgment  given,  quod  partitio  stabilis  fit,  the 
record  is  not  full,  nor  the  judgment  perfect;  and  therefore  the  record  should 
not  be  removed. 

"Accord  :  Painter  v.  Lebanon  Land  Co.,  178  Mich.  47,  144  N.  W.  483  (1913). 
At  law,  the  judgment  or  decree  complained  of  must  be  final.  Fitswilliains 
V.  Copley,  Dyer  290b  (1569) ;  Russell  v.  Prat,  i  Leon.  193  (1589)  ;  Metcalfe's 
Case,  II  Coke  38  (1614)  ;  Dominus  Rex.  v.  Decant,  Dean  &c.  of  Dublin, 
I  Str.  536  (1722)  ;  Samuel  v.  Judin,  6  East,  333  (1805)  ;  Pentecost  v.  Mar/ahee, 
5  111.  (4  Scam.)  326  (1843);  Hayes  v.  Caldwell,  10  111.  (5  Gill.)  33  U848)  ; 


BOZSON  f.   ALTRINCriAM   &C.    COUNCIL  823 

BOZSON  V.  ALTRINCHAM  URBAN  DISTRICT  COUNCIL 

In  the  Court  of  Appeal,  1903 

L.  R.   (1903),  I  K.  B.  547 

Appeal  by  the  plaintifif  from  an  order  of  Wills,  J. : 
The  action  was  brought  to  recover  damages  for  breach  of  con- 
tract. An  order  in  the  following  terms  was  made  in  chambers :  "It 
is  ordered  that  the  action  be  transferred  to  the  non-jury  list.  Ques- 
tions of  liability  and  breach  of  contract  only  to  be  tried.  Rest  of 
case  (if  any)  to  go  to  official  referee."  The  case  came  on  before 
Wills,  J.,  at  Manchester,  on  March  6,  1902.  The  learned  judge 
held  that  there  was  no  binding  contract  between  the  parties,  and 
made  an  order  dismissing  the  action,  upon  which  order  judgment 
was  subsequently  entered  for  the  defendants.  The  plaintiff  ap- 
pealed from  the  order  of  Wills,  J.  Notice  of  appeal  was  given  on 
May  3,  1902. 

Pickford,  K.  C.  (Langton  with  him),  for  the  defendants. 
There  is  a  preliminary  objection  to  the  hearing  of  this  appeal.  It 
is  an  appeal  from  an  interlocutory  order,  and  the  appeal  is  there- 
fore out  of  time.  The  test  for  ascertaining  whether  an  order  is  final 
or  interlocutory,  as  laid  down  by  the  court  of  appeal  in  Salaman  v. 
Warner,  L.  R.  (1891),  i  O.  B.  734,  is  that  an  order  is  not  a  final 

People  V.  Thurston,  5  Cal.  517  (1855)  ;  R^lcy  v.  Farnsworth,  116  Mass.  223 
(1874)  ;  Mackancss  v.  Long,  8.S  Pa.  St.  ik8  (1877)  ;  Morse  v.  Rankin,  51  Conn. 
326  (1883);  L coper  v.  l/andcrvecr,  47~N.  J.  L.  178  (1885);  Comins  V. 
Turner's  Falls  Co,  140  Mass.  146,  3  N.  E.  304  (1885)  ;  Bender  v.  Penna.  Co., 
148  U.  S.  502,  13  S.  Ct.  640,  37  L.  ed.  537  (1892)  ;  Parker  v.  Harden,  122  N. 
Car.  Ill,  28  S.  E.  962  (1898)  ;  Dorschcimer's  Estate,  o  Pa.  Super.  Ct.  422 
(1899)  ;  Tompkins  v.  Bowen,  123  Mich.  377,  82  N.  W.  51  (1900);  NoojTn  v. 
U.  S.,  164  Fed.  692  (1Q08)  ;  Fox  v.  Fox,  128  App.  Div.  876,  113  N.  Y.  S.  121 
(1908)  ;  Hillinfd  y.  Sterlinaworth  Co..  224  Pa.  jjg,  y;}  Atl.  191  (1909)  ; 
Miller  v.  Fits,  41  Pa.  Supgr  Ct  .yS^  (joio)  ;  Blanton  v.  IVesi  Coast  R.  Co., 
58  Fla.  IDQ,  50  bo.  945  (1909)  ;  Kirk  v.  Raikvay  Co.,  66  W.  Va.  486,  66  S.  E. 
683  (1909)  ;  Smith  v.  Dellitt,  244  111.  75,  91  N.  E.  94  (1910)  ;  Finkelstein  v. 
Lyon,  159  111.  App.  13  C1910)  ;  Denver  v.  Brozvn,  47  Colo.  513,  108  Pac.  971 
(1910)  ;  State  ex  rcl  Iba  v.  Mosman,  231  Mo.  474,  133  S.  W.  38  (1910)  ; 
Brooks  V.  Hargrave,  162  Mich.  599,  127  N.  W.  689  (1910)  ;  Griffiths  v.  R.  Co., 
^'^^S\  ^'^^'  ^^  ^^^-  7^>^'  "^""^  ^^^-  1912D,  I3n  (1911);  Allgair  v.^Rlckman, 
82  N.  J.  L.  369,  81  Atl.  752  (1911)  ;  Landmesser  v.  Hayivard,  157  App.  Div. 
74.  141  N.  Y.  S.  730  (1913);  Bonner  v.  SchwAtr..  9/^7.  Pa  /|8t,  89  Atl.  579 
(1913)  ;  Zuccaro  v.  Nazzaro,  216  Mass.  289,  103  N.  E.  907  (1913). 

In  equity  the  English  chancery  practice  permitted  appeals  from  interlocu- 
tory decrees  of  the  chancellor.  In  the  United  States  this  practice  has  not 
been  adopted  except  in  a  few  instances,  usually  provided  by  statute.  Forgay 
V.  Conrad,  6  How.  (U.  S.)2oi,  12  L.  ed.  404  "(1848).  As  to  when  a  decree 
in  equity  is  final,  see  Bostwick  v.  Brinkerhoff,  106  U.  S.  3,  27  L.  ed.  7;^  (1882)  ; 
McCourkey  v.  Toledo  R.  Co.,  146  U.  S.  536,  36  L.  ed.  1079  (1892)  ;  Mills  v. 
Hoag,  7  Paige  (N.  Y.)  18,  31  Am.  Dec.  271  (1837)  ;  Morgan  v.  Rose,  22  N.  J. 
Eq.  583  (1871)  ;  Farmers  Market  Co.  V.  P.  &  R.  Terminal  R.  Co.,  142  Pa.  St. 
580  (1891)  ;  Humphreys  v.  Stafford,  71  Aliss.  135,  13  So.  865  (1893)  ;  Ex  parte 
Elyton  Land  Co.,  104  Ala.  88,  15  So.  939  (1893)  ;  Ealcthorp  v.  Palethorp,  16S 
Pa  St.  102,  31  Atl.  917  (1895)  ;  Repass  w.  MooreTgt  Va.  147,  "30"^.  E.  458 
XiSqS);  Morton  v.  Beach,  56  N.  J.  Eq.  791,  41  Atl.  214  (1898). 


824  ArrKAI.    AMI    r.KKOR 

order  unless  it  is  diic  nuulo  on  such  an  application  or  proceeding 
that,  for  whichever  side  the  decision  is  given,  it  will,  if  it  stands, 
finally  determine  the  matter  in  litigation.  In  the  present  case  the 
decision  of  Wills,  ].,  as  given  did  in  fact  put  an  end  to  the  litigation, 
but  it  would  have  been  otherwise  if  the  decision  had  been  in  favor 
of  the  plaintiiT,  because  then  the  case  would  have  had  to  go  before 
the  official  referee.  The  order  of  Wills,  J.,  was  therefore,  according 
to  the  rule  enunciated  in  Salaman  v.  Jl'anier,  an  interlocutory 
order.  The  principle  of  that  case  was  affirmed  in  In  re  Herbert 
Riwes  &  Co.,  L.  R.  (1902),  i  Ch.  29,  but  there  is  an  earlier  de- 
cision of  the  court  of  appeals,  Shubrook  v.  Tufnell,  L.  R.  9,  O.  B. 
Div.  621,  which  was  not  cited  in  SaloDian  v.  Warner,  and  which  ap- 
pears to  be  in  conflict  with  it. 

IMontague  Lush,  K.  C.  and  M.  Macnaghten,  for  the  plaintiff, 
were  not  called  upon. 

The  Karl  of  Halsbury,  L.  C. :  The  learned  counsel  for  the 
defendants  has  very  properly  called  our  attention  to  the  fact  that 
tlie  authorities  on  this  point  are  not  in  harmony.  I  prefer  to  follow 
the  earlier  decision.  I  think  the  order  appealed  from  was  a  final 
order,  and  the  appeal  is  therefore  brought  within  the  prescribed 
time. 

Lord  Alverstone,  C.  J. :  I  agree.  It  seems  to  me  that  the 
real  test  for  determining  this  question  ought  to  be  this:  Does  the 
judgment  or  order,  as  made,  finally  dispose  of  the  rights  of  the 
parties?  If  it  does,  then  I  think  it  ought  to  be  treated  as  a  final 
order;  but  if  it  does  not,  it  is  then,  in  nsy  opinion,  an  interlocutory 
order. 

Sir  F.  H.  Jeune,  P.,  concurred. 

Objection  overruled." 


"In  Bostwick  V.  Brinkcrhoff,  106  U.  S.  3,  27  L.  ed.  yz  (1882),  it  is  said 
by  Waite,  C.  J.:  "The  rule  is  well  settled  and  of  long  standing  that  a  judg- 
ment or  decree  to  be  final,  within  the  meaning  of  that  term  as  used  in  the 
acts  of  Congress  giving  this  court  jurisdiction  on  appeals  and  writs  of  error, 
must  terminate  the  litigation  between  the  parties  on  the  merits  of  the  case, 
so  that  if  there  should  be  an  affirmance  here,  the  court  below  would  have 
nothing  to  do  but  to  execute  the  judgment  or  decree  it  had  already  rendered." 
Compare  Chappcll  v.  Punk,  57  Md.  465  (1881)  ;  Ex  parte  Norton,  108  U.  S. 
237,  27  L.  ed.  709  (1883)  ;  Motver  v.  Fletcher,  114  U.  S.  127,  29  L.  ed.  117 
(1885)  ;  Ex  parte  Spencer,  95  N.  Car.  271  (1886)  ;  Connecticut  Fire  Ins.  Co. 
V.  Manning,  177  Fed.  893  (1910)  ;  IVoglom  v.  Perth  Amboy,  80  N.  J.  L.  469, 
75  Atl.  190  (1910)  ;  Norton  v.  Shore  Line,  84  Conn.  24,  78  Atl.  587  (1911)  ; 
County  Court  of  Denver  v.  Eagle  Rock  Gold  Mining  &  Reduction  Co.,  50 
Colo.  365,  115  Pac.  706  (1911)  ;  Hynes  v.  Jennings,  262  111.  268,  104  N.  E. 
697  (1914)  ;  Jones  v.  Buckingham  S.  Co.,  1 16  Va.  120,  81  S.  E.  28  (1914)  ; 
Zappettini  v.  Buckles,  167  Cal.  27,  138  Pac.  696  (1914),  with  Penncu  Steel  Co.'s 
Appeal,  -161  Pa..  St.  '^71.  20  Atl.  294  (1894)  ;  People  v.  American  Trust  Co., 
150  N.  y7ii7,  44  N.  E.  949  (1896)  ;  North  Point  Co.  v.  Canal  Co.,  14  Utah 
155,  46  Pac.  824  (1896)  :  Stegw.aier  v.  Keystone  Coal  Co.,  232  Pa.  140,  81  Atl. 
187  (1911);  McMullen  v.  kinnslcy,  ^±  K.  J.  L.  258,  82  Atl. '46  (1912); 
Commomvrnlth  v  Bniinrr  03R  Pn  31:0,  5^^  Atl.  198  (1Q13)  ;  Roth  V.  Mercan- 
tiJelTank,  41  App.  (D.  C.)  293  (1914)  ;  Farris  v.  .9/.  Paul's  Bapti.'it  Church, 
216  Mass.  570,  104  K.  E.  639  (1914)  ;  Williams  v.  Hney,  263  III.  275,  104  N.  E. 
1008  (1914).;  Gouge  v.  Bennett,  166  N.  Car.  238,  81  S.  E.  1065  (1914). 

To  entitle  a  judgment  to  review  it  should  be  formally  entered  as  a 
record  of  the  court  below.    People  v.  McCiitcheon,  40  Mich.  244    (1879); 


TOWNSEND   V.    MASTERSON    &C.    CO.  825 


TOWNSEND  V.  MASTERSON,  SMITH  &  SINCLAIR  STONE 

DRESSING  CO. 

Court  of  Appeals  of  New  York    1857 

15  A^.  Y.  587 

Motion  by  the  defendants  to  dismiss  an  appeal  taken  by  the 
plaintiff,  on  the  ground  that  the  parties  had,  intermediate  the  judg- 
ment of  the  special  term  and  the  hearing  of  the  appeal  at  the  gen- 
eral term,  stipulated  that  no  appeal  should  be  brought  to  this  court. 

The  action  was  brought  in  the  superior  court  to  compel  the 
trustee  for  the  Masterson  Company  to  cancel  a  mortgage  which  the 
plaintiff  had  executed.  The  defendant  set  up,  by  way  of  counter- 
claim, that  the  plaintiff  was  indebted  to  it,  and  that  the  mortgage 
vv'as  held  as  security  for  that  indebtedness.  The  case  was  tried  be- 
fore a  referee  who  reported  that  there  was  due  the  Masterson  Com- 
pany $3,647.20  and  judgment  was  entered  in  accordance  with  the 
report  at  the  special  term,  both  parties  excepting  to  certain  de- 
cisions against  them.  Subsequently,  the  attorneys  for  the  parties, 
the  plaintiff's  attorney  acting  by  his  direction,  signed  the  following 
agreement:  "It  is  hereby  mutually  stipulated  that  the  appeal  in 
this  case  from  the  referee's  report  be  brought  to  a  hearing  before 
the  general  term  of  this  court  as  soon  as  practicable,  and  that  no 
appeal  shall  be  taken  from  the  decision  of  the  general  term  to  the 
court  of  appeals."  On  the  hearing  at  the  general  term  the  stipu- 
lation was  incorporated  in  the  record.  The  judgment  of  the  general 
term  affirmed  the  previous  judgment  with  modifications. ^- 

Denio,  C.  J. :  The  suggestion  made  on  the  argument  by  the 
plaintiff's  counsel,  that  the  stipulation  had  relation  only  to  the  ap- 
peal on  his  part,  seems  not  to  be  well  founded.  When  the  stipula- 
tion was  signed,  neither  party  had  served  any  notice  of  appeal  to 
the  general  term.  Both  parties  had,  however,  taken  exceptions  to 
decisions  of  the  referee,  and  it  is  clear  from  the  stipulation  in  re- 
gard to  time  for  making  a  case,  and  from  the  terms  of  the  other 
stipulation  upon  which  the  motion  is  founded,  that  both  parties  con- 
templated appealing  to  the  general  term.  That  stipulation  was 
mutual,  therefore,  in  its  terms  and  effect.  Both  parties  concurred 
that  they  had  reason  for  complaining  of  the  repart  of  the  referee, 
and  they  deliberately  agreed  that  each  should  be  content  with  what 


Kilmer  v.  Bradley,  80  N.  Y.  630  (1880)  ;  Derlcth  v.  De  Graff,  104  N.  Y.  661, 
10  N.  E.  351,  I  Silvernail  Ct.  App.  327  (1887)  ;  Gilpatrick  v.  Glidden,  82  Maine 
201,  19  Atl.  166  (1889)  ;  Morgan  v.  Flexncr,  105  Ala.  356,  16  So.  716  (1894)  ; 
In  re  Pearsons,  119  Cal.  27,  50  Pac.  929  (1897)  ;  Wolff  v.  Wilson,  25  Pa. 
Super.  Ct.  266  (1Q04)  ;  Griffiths  v.  MonongahclaR.'  Co.,  2t,2  Fa.  639,  81  Atl. 
713,  Ann.  Cas.  1912U,  i3n  (1911)  :  Franklin  Co.  v.  Blake,  2^7  111.  354,  100  N.  E. 
029  (1913)  ;  Brown  v.  Cray,  88  Conn.  141,  89  Atl.  1123  (1914).  But  compare 
New  O  leans  R.  Co.  v.  Morgan,  jy  U.  S.  256,  19  L.  ed.  892  (1869) ;  Spehn  v. 
Hnehschen,  83  Wis.  313,  53  N.  W.  550  (1892)  ;  Nelson  Theater  Co.  v.  Nelson, 
216  Mass.  30,  102  N.  E.  926  (1913). 

"The  statement  of  facts  is  abridged. 


826  APrF.AI,    AXn    F.ICROR 

tlic  g;oncral  term  shoulJ  decide,  an  J  that  they  would  not  protract 
tlie  litigation  by  an  ajipcal  to  this  court. 

It  is  insisted  by  the  defendants'  counsel  that  the  jurisdiction  of 
this  court  is  limited  to  hearing  appeals  upon  their  merits,  and  it 
can  not  enforce  stipulations  made  by  the  parties  in  the  subordinate 
courts.  But  certainly,  the  duty  of  hearing  ai)peals  involves  the  jur- 
isdiction of  determining  whether  a  particular  case  is  properly  before 
us  on  appeal.  It  is  perfectly  competent  for  the  parties  to  determine 
in  the  preliminary  steps  of  the  litigation,  whether  they  will  place 
the  question  in  dispute  in  a  condition  to  be  reviewed  here.  They 
may  omit  to  except  to  the  decision  of  the  court  before  whom  the 
primary  decision  is  made,  or  after  excepting  they  may  waive  or 
abandon  the  exception  absolutely  or  to  a  modified  extent.  There  is 
no  reason,  therefore,  why  they  may  not  mutually  agree  that  excep- 
tions which  have  been  taken  shall  only  be  effectual  to  sustain  an 
appeal  to  the  general  term  of  the  same  court.  This  is  what  has  been 
done  in  effect  in  this  case.  We  should  not  regard  any  less  authentic 
evidence  of  such  an  arrangement  than  a  plain  stipulation  in  writing; 
but  when  we  are  furnished  wnth  such  evidence,  and  especially  where 
the  court  from  which  the  appeal  is  taken  has  sanctioned  the  agree- 
ment by  making  it  a  part  of  the  record,  we  ought  to  enforce  it  by 
refusing  to  pass  upon  the  questions  which  have  thus  formally  been 
waived. 

The  appeal  must  be  dismissed  w-ith  costs,  to  be  paid  by  the  ap- 
pellant.^^ 

Appeal  dismissed. 


"Accord:  Camden  v.  Edie,  i  H.  Bl.  21  (1788);  GaLbrcatll-y.--^CaIi,^ 
Yeates  (Pa.)  551  (1808)  ;  Cuncle_\\  Dripf^x.  ^P.  &  W.  (Pa.)  291,  23  Am.  Dec. 
^1  X^^j'')  •^rif'-''"'-'^  ^  Hrufnn^  S  VVntfs  (P^  ^  371  (1839);  Commoiiwcolth 
w7  Johnson,  6  Pa.  St.  i.^6  (1874)  ;  Giunm  v.  Fowler,  2  El.  &  El.  890  (i85b)  ; 
Cole  V.  Thayer,  25  Mich.  212  (1872)  ;  Jones  v.  Victoria  Grading  Dock  Co., 
36  L.  T.  (N.  S.)  347  (1877)  ;  Carroll  v.  Locke,  58  N.  H.  163  (1877)  ;  New  v. 
Fisher,  11  Daly  (N.  Y.)  308  (1882)  ;  Oliver  v.  Blair,  66  Cal.  XVIII,  5  Pac. 
917  (1885)  ;  Saling  v.  German  Savings  Bank,  15  Daly  (N.  Y.)  527,  8  N.  Y.  S. 
469,  28  N.  Y.  St.  880  (1S90)  ;  Royno  y.  Lorentz,  ?,2  Pa.  Super.  Ct.  162  (1906)  ; 
Jones  V.  Spokane  Land  Co.,  44  Wash.  146,  87  Pac.  65  (1906)  ;  V.  S.  Consol. 
Raisin  Co.  v.  Chaddock,  173  Fed.  577  (1909);  Cramt>  &  Co.  v.  Boycrtown 
Burial  Casket  Co.,  241  Pa  15,  S8  Atl.  69  (1913)  ;  Palmer  v.  Lavers,~2iS  Mass. 
286,  105  A',  ii;.  1000  (1914).  Contra:  Sanders  v.  White,  22  Ga.  103  (1857); 
State  V.  Judge  of  fifth  Dist.  Ct.,  14  La.  Ann.  323  (1859)  ;  Falkner  v.  Hunt, 
68  N.  Car.  475  (1873)  ;  Fahs  v.  Darling,  82  111.  142  (1876)  ;  Brown  v.  Galesburg 
Pressed  Brick  &c.  Co.,  132  111.  648,  24  N.  E.  522  (1890).  A  release  of  errors, 
or  agreement  not  to  take  an  appeal  given  for  value,  after  judgment  will  be 
enforced.  Co.  Litt.  289;  Van  Houten  v.  Ellison,  2  N.  J.  L.  235  (1807)  ;  Cotton 
V.  IVilson,  Minor  (Ala.)  118  (1823)  ;  Millar  v.  Farrar,  2  Blackf.  (Ind.)  219 
(1829);  March  v.  Talbott,  I  Dana  (Ky.)  443  (1833);  Barnes  v.  Moody, 
6  Miss.  (5  How.)  636,  37  Am.  Dec.  172  (1841)  ;  Wood  v.  Goss,  21  111.  604 
(1859)  ;  Martin  v.  Hawkins,  20  Ark.  150  (1859)  ;  Ulshafer  v.  Stewart.  71  Pa. 
St.  170  (1872)  ;  Ogdenshurg  R.  Co.  v.  Vermont  RTCo.,  63  N.  Y.  176  (1875T; 
In  re  Hull  Bank,  13  Ch.  Div.  261  (1879);  Mackey  v.  Daniel,  59  Md.  484 
(1882);  Powell  V.  Turner,  139  Mass.  97,  28  N.  E.  453  (1885);  Elwell  v. 
Fosdick,  134  U.  S.  500,  33  L.  ed.  998  C1890)  ;  Johmon  v.  H alley,  8  Tex.  Civ. 
App.  137,  27  S.  W.  750  (1894)  ;  Southern  R.  Co.  v.  Glenn,  98  Va.  309,  36  S.  E. 
395  (1900)  ;  Keoughan  v.  Equitable  Oil  Co.,  116  La.  yjz,  4^  So.  88  (1906). 


RICHESON    v.    RYAN  827 


RICHESON  V.  RYAN 

Supreme  Court  of  Illinois,  1852 
14  ///.  74 

Richeson  brought  this  cause  to  tliis  court  by  writ  of  error.  Ryan 
filed  his  plea  of  release  of  errors,  stating  that  Richeson  had  volun- 
tarily paid  the  judgment  against  him,  to  which  plea  a  demurrer  was 
interposed. 

Treat,  C.  J.:  Ryan  recovered  a  judgment  against  Richeson. 
The  latter  paid  the  judgment  before  an  execution  issued,  and  then 
sued  out  a  writ  of  error  to  reverse  it.  Did  the  payment  operate  as 
a  release  of  errors?  If  the  judgment  had  been  collected  by  execu- 
tion, there  would  not  be  a  doubt  of  the  right  of  Richeson  to  prosecute 
the  v/rit  of  error. ^*  A  payment  made  under  such  circumstances 
would  be  compulsory,  and  would  not  preclude  him  from  afterv.^ards 
reversing  the  judgnient,  if  erroneous,  and  then  maintaining  an 
action  to  recover  back  the  amount  paid.  The  payment  in  question 
must  equally  be  considered  as  m^ade  under  legal  compulsion.  The 
judgment  fixed  the  liability  of  Richeson,  and  he  could  only  avoid 
payment  by  procuring  its  reversal.  He  Was  not  bound  to  wait  until 
payment  sliould  be  demanded  by  the  sheriff.  He  was  at  liberty  to 
pay  off  the  judgment  at  once,  and  thereby  prevent  the  accumulation 
of  interest  and  costs.  By  so  doing,  he  did  not  waive  his  right  to 
remove  the  record  into  this  court,  for  the  purpose  of  having  the 
validity  of  the  proceedings  tested  and  determined.  The  pleas  are 
bad,  and  the  demurrer  must  be  sustained. ^^ 

Demurrer  sustained. 


"Accord:  Grim  v.  Semple,  39  Iowa  570  (1874)  ;  Meade  v.  Kansas  City  St. 
J.  R.  Co.,  45  Iowa  659  (1877)  ;  Verges  v.  Gonzales,  33  La.  410  (1881)  ;  Hixon 
V.  Oneida  Co.,  82  Wis.  515,  52  N.  W.  445  (1892)  ;  Kcnney  v.  Parks,  120  Cal. 
22,  52  Pac.  40  (1898)  ;  Armstrong  v.  Douglas  Park  Building  Assn.,  176  111.  298, 
52  N.  E.  836  (1898)  ;  Empire  H.  Co.  v.  Young,  27  Misc.  226,  57  N.  Y.  S.  753 
(1899)  ;  Union  Tr.  Co.  v.  Bell,  164  Ind.  701,  73  N.  E.  1134  (1905)  ;  Dodds  v. 
Grcgson,  35  W^ash.  402,  yy  Pac.  791  ( 1904)  ;  Feight  v.  Wyandt,  79  Kans.  309, 
99  Pr.c.  611  (1909)  ;  Buckeye  Refining  Co.  v.  Kelly,  163  Cal.  8,  124  Pac.  536 
(1912)  ;  Lott  \.  Davis,  262  111.  148,  104  N.  E.  199  (1914).  So  "Payment  under 
a  judgment  which  is  made  without  the  knowledge  or  approval  of  the  party- 
condemned  is  not  an  acquiescence  by  him  in  such  judgment."  Anderson  v. 
New  Orleans  Ry.  &■  Light  Co.,  133  La.  896,  63  So.  395  (1913). 

^^Accord:  Dyett  v.  Pendleton,  8  Cow.  (N.  Y.)  326  (1826);  Gordon  v. 
Cihhs,  II  Miss.  (3  Sm.  &  M.)  473  (1844)  ;  Erzvin  v.  Dowry,  7  How.  (U.  S.) 
172,  12  L.  ed.  655  (1849)  ;  Peer  v.  Cookerow,  14  N.  J.  Eq.  361  (1862)  ;  Hill 
V.  Starkweather,  30  Ind.  434  (1868);  Belton  v.  Smith,  45  Ind.  291  (1873); 
IVatson  V.  Kane,  31  Mich.  61  (1875)  ;  Jersey  City  v.  Riker,  38  N.  J.  L.  225,  20 
Am.  Rep.  386  (1876)  ;  Hatch  v.  Jacohson,  64  111.  584  (1880)  ;  Page  v.  People, 
99  111.  418  (1881)  ;  Hayes  v.  Noiirsc,  107  N.  Y.  577,  14  N.  E.  508,  i  Am.  St. 
891  (1887)  ;  Burrozcs  v.  Mickler,  22  Fla.  572,  i  Am.  St.  217  (1886)  ;  Chapman 
V.  Sutton,  68  Wis.  657,  32  N.  W.  683  (1887)  ;  Fernuson  v.  Millender,  32  W.  Va. 
30,  9  S.  E.  38  (1889)  ;  Richmond  &  D.  R  Co.  v.  Buice,  88  Ga.  180,  14  S.  E.  205 


828  ATPKAL    AM)    KKKOR 

SECTION  2.     PARTIES 

BLACK  r.  KIRGAN 

Supreme  Court  of  New  Jersey,  1835 

IS  A^  /.  L.  45 

A  writ  of  error  had  been  issued  in  this  case,  directed  to  the  com- 
mon pleas  of  tlie  county  of  BurHngton.  On  the  return  of  the 
writ,  H.  W.  Green,  for  tlie  defendant  in  error,  moved  to  quash  the 
writ. 

I — Because  the  writ  is  defective.  It  says,  "to  the  great  dam- 
age of  John  Whitakcr,"  \vithout  showing  in  what  right  or  character, 
he  makes  himself  plaintiff  in  error. 

II — Because  admitting  W'hitaker  to  be  a  judgment  creditor  of 
Black,  the  defendant  below  (as  by  his  assignment  of  errors  he  rep- 
resents himself  to  be),  yet  he  is  not,  as  such,  entitled  to  sue  out  this 
writ. 

Ford,  J. :  This  writ  of  error,  on  a  judgment  of  David  Kirgan 
against  John  Black  docs  not  conclude  to  the  damage  of  John  Black, 
nor  is  it  sued  by  him,  but  to  the  great  damage  of  John  Whitaker. 

Xo  person  can  have  a  writ  of  error,  on  a  judgment,  unless,  ac- 
cording to  the  common  law,  "he  be  a  party  or  privy  to  the  record, 
or  be  injured  by  the  judgment,"  Bac.  Ah.  Error,  B.  The  statute, 
which  is  merely  an  affirmance  of  the  common  law,  is  to  the  same 


(1891)  ;  Pittsburgh  F.  IV.  Ry.  Co.  v.  Martin,  S3  Ohio  St.  3S6,  41  N.  E.  6qo 
(1895);  Springer  v.  Merchants  National  Bank,  67  111.  App.  317  (1896); 
MacEvitt  V.  Maass,  64  App.  Div.  382,  72  N.  Y.  S.  158  (1901)  ;  Eastland  v. 
Armstrong,  117  Wis.  394,  94  N.  W.  301  (1903)  ;  Ogden  v.  Chehalis  Co.,  41 
Wash.  45,  82  Pac.  1095  (1905)  ;  Nashville  C.  &  St.  L.  R.  Co.  v.  Bean,  33  Ky. 
L.  R.  114,  109  S.  W.  323  (1908)  ;  Lindenborn  v.  Vogel.  131  App.  Div.  75,  "5 
N.  Y.  S.  962  (1909)  ;  Eilers  Piano  House  v.  Pick,  58  Ore.  54,  113  Pac.  54 
(1911)  ;  Patterson  v.  Keeney,  165  Cal.  465,  132  Pac.  1043,  Ann.  Cas.  1914D, 
232n  (1913);  Hoogendorn  v.  Daniel,  202  Fed.  431  (1913)  ;  Round  v.  Land 
&  P.  Co.,  92  Kans.  894,  142  Pac.  292  (1914)-  Contra:  David  v.  East  Baton 
Rouge,  27  La.  Ann.  230  (1875)  ;  PozL'ell  v.  Ilernsheim,  37  La.  Ann.  581  (1885)  ; 
Sager  v.  Moy,  15  R.  I.  S28.  9  Atl.  847  (1887)  ;  Aldrcd  v.  Romero,  5  N.  Mex. 
522,  25  Pac.  788  (1891)  ;  Hintragcr  v.  Mahoney,  78  Iowa  537,  43  N.  W.  522, 
6  L.  R.  A.  50  (1889)  ;  Drew  v.  His  Creditors,  49  La.  Ann.  1641,  22  So.  956 
(1897)  ;  York  V.  Barnes,  58  Kans.  478.  49  Pac.  596  (1897)  ;  Rolette  v.  Pierce 
Co.,  8  N.  Dak.  613.  80  N.  W.  804  (1899)  ;  In  re  Black's  Estate,  32  Mont.  51,  79 
Pac.  =;;4  ("1005)  ;  Signor  v.  Clark,  13  N.  Dak.  35.  99  N.  W.  68  (1904). 

"\\'hen  it  is  shown  that  the  litigation  or  controversy  has  been  ended  or 
settled,  or  in  some  manner  disposed  of  so  far  as  the  parties  are  concerned,  or 
has  ceased  to  be  between  parties  having  adverse  interests,  the  appeal  will  be 
dismissed  as  presenting  onlv  a  moot  question."  Princeton  Coal  Co.  v.  Gilmorc, 
170  Ind.  366,  83  N.  E.  500  (1907).  Accord:  Stone  v.  Davis,  14  Mass.  360 
(1817);  Garner  v.  Preuitt,  32  Ala.  13  (1858);  Allegheny  Bank's  Appeal, 
48  Pa.  .Str^28  (^^6^)  ;  Little  v.  Bowers,  134  U.  S.  547,  33  L.  ed.  loi^T  (1889)  ; 
Cock  V.  Palmer,  19  Abb.  Pr.  (N.  Y.)  372,  24  N.  Y.  Super.  Ct.  658  (1863)  ; 
Plogstart  v.  Rothenbncher,  37  Mo.  452  (1866);  Bank  of  Martinez  v.  Jahn, 
104  Cal.  238,  38  Pac.  41  (1894)  ;  Joiida  v.  Kaplan,  84  N.  Y.  Supp.  863  (1903)  ; 
Shannon  v.  Mower,  186  Ala.  472,  65  So.  338  (i9U)-  . 


BLACK   V.    KIRGAN  829 

effect:  "any  part}^  or  his  legal  representative,  or  other  person  who 
may  be  damnified  or  injured  by  a  judgment,  may  sue  forth  a  writ 
of  error."  Rev.  Laws,  400,  section  2.  Mr.  Whitaker  does  not  pre- 
tend that  he  is  a  party  or  the  legal  representative  of  one,  or  a  privy 
to  the  record,  but  says  he  is  injured,  damnified  and  aggrieved  by  the 
judgment,  as  a  creditor  of  John  Black.  How  he  is  such  creditor,  is 
not  stated  in  the  body  of  this  writ,  but  it  is  shown  collaterally ;  he 
has  an  execution  levied  on  the  property  of  John  Black;  but  David 
Kirgan  has  a  previous  one,  which  Mr,  Whitaker  wishes  to  reverse 
and  remove  out  of  the  way,  so  as  to  gain  a  preference  for  his  own, 
and  he  alleges  that  the  prior  judgment  injures  and  damnifies  him. 

Now  this  judgment  can  be  no  injury,  in  the  legal  sense  of  the 
word,  to  Mr.  Whitaker,  whether  it  be  just,  fraudulent  or  irregular. 
If  a  just  judgment,  obtained  bona  fide  by  one  creditor,  could  be 
a  legal  injury  to  another,  no  creditor  could  ever  have  a  just  judgment, 
for  it  would  be  an  injury  to  somebody.  If  Kirgan's  be  an  injury 
to  Whitaker,  then  Whitaker's  must  be  an  injury  to  those  creditors 
who  are  subsequent  to  him,  and  it  would  follow  that  no  creditor 
could  have  a  just  judgment,  without  committing  an  injury  in  law. 
The  proposition  is  therefore  utterly  fallacious. 

If  it  be  a  fraudulent  judgment,  it  is  void  as  against  creditors  by 
the  statute  of  frauds,  and  a  judgment  already  void,  can  be  no  in- 
jury to  them.  But  it  can  not  be  avoided  on  a  writ  of  error,  where 
the  court  must  judge  by  the  record  alone,  and  can  not  look  at  any- 
thing behind  it.  This  is  not  the  mode  of  resisting  a  fraudulent  judg- 
ment. The  merits  must  be  brought  before  the  court,  by  affidavits, 
on  a  motion  to  set  it  aside,  as  in  the  case  of  Barrows  v.  Bispl:ai:i, 
6  Hals.  (N.  J.)  no;  or  Reed  v.  Bainbridge,  i  South.  (N.  J.)  351 ;  or 
Matthetvs  v.  IVanie,  6  Hals.  ( N.  J. )  295,  or  by  treating  it  as  a  nullity. 
Fraud  can  not  be  alleged  in  a  writ  of  error,  unless  it  appear  on  the 
face  of  the  record  itself.  But  supposing  it  to  be  fraudulent,  as 
against  creditors,  it  is  a  nullity,  and  can  do  them  no  harm. 

So  an  irregular  judgment  against  Black,  can  be  no  injury  or 
damage  to  Whitaker,  who  is  a  third  person.  Suppose  that  there  has 
been  some  omission,  misprision,  mistake  or  slip  of  the  pen,  in  the 
form  of  entering  it  up,  they  do  not  affect  the  merits  and  justice  of 
the  judgment;  therefore,  they  can  not  injure  or  damnify  Mr.  Whit- 
aker. An  amendment  or  release  would  cure  them  all.  They  might 
be  to  the  injury  of  Black  the  defendant;  but  exactly  the  contrary 
as  respects  Mr.  Whitaker.  If  he  could  take  advantage  of  them,  so 
as  to  put  Kirgan's  judgment  aside,  and  gain  a  preference  for  his 
own,  these  irregularities  would  be  to  Mr.  Whitaker's  benefit  instead 
of  injury;  the  conclusion  in  the  writ,  that  they  are  to  his  damage, 
would  be  an  untruth,  on  the  face  of  it. 

The  statute  has  made  no  change  in  the  common  law  respecting 
who  may  have  a  writ  of  error.  There  is  privity  of  person  between 
a  deceased  party  and  his  legal  representative.  So  an  heir,  remain- 
derman, reversioner,  and  in  some  cases,  terre-tenants,  are  privies  in 
estate ;  the  execution  may  go  against  their  lands,  and  damnify  them ; 
therefore  they  may  have  a  writ  of  error;  but  Kirgan,  by  virtue  of 
his  judgment,  can  not  have  an  execution  against  Whitaker  or  his 


S30  ArrnAL  and  kkror 

property.  All  he  fears  is,  that  it  may  prevent  his  g-etting  Black's 
property.  The  injury  is  not  to  his  person  or  his  estate.  It  is  only 
to  liis  hopes.  If  this  were  allowahle,  then  children  might  have  a 
writ  of  error  to  reverse  a  judgment  against  their  father;  the  town- 
ship to  reverse  one  against  a  pauper;  a  sheriff  to  reverse  a  judg- 
ment, after  he  had  been  amerced  for  neglecting  to  bring  the  money 
into  court,  on  an  execution ;  or  bail,  after  they  had  been  fixed,  to 
reverse  the  judgment  against  their  principal.  If  one  creditor  might 
bring  a  writ  of  error  to  reverse  the  judgment  of  another,  so  might 
every  one,  and  there  might  be  as  many  writs  of  error  as  there  were 
creditors.  But  a  man  who  is  neither  party  nor  privy  in  person  or 
estate,  can  not  be  damnified  by  the  judgment,  and  therefore  shall  not 
have  a  writ  of  error.  This  is  the  settled  rule  as  stated  in  Com.  Dig. 
Pleader,  3  B.  9,  and  therefore,  this  writ  of  error  must  be  quashed.  ^ 

HoRNBLOWER,  C.  J.  :^^  Sergeant  Williams,  in  2  Saund.  46,  n.  6, 
says:  "No  person  can  bring  a  writ  of  error,  unless  he  is  a  party 
or  privy  to  the  record,  or  is  prejudiced  by  the  judgment,  the  rule 
being,  that  a  writ  of  error  can  only  be  brought  by  him  who  would 
have  had  the  thing,  if  the  erroneous  judgment  had  not  been  given." 
The  expression  used  by  Sergeant  Williams,  and  indeed  to  be  found 
in  all  books — "or  persons  prejudiced  by  the  judgment,"  is  as  com- 
prehensive as  the  terms,  "or  other  person  damnified  or  aggrieved 
by  the  judgment,"  used  in  our  statute.  Yet,  by  the  "person  preju- 
diced by  the  judgment,"  is  not  intended  any  person  who  may  hap- 
pen incidentally  to  be  prejudiced  by  it;  but  the  person  who  would 
have  had  the  thing,  but  for  the  erroneous  judgment.  Now  what 
was  the  thing  in  dispute  in  the  action  between  Kirgan  and  Black? 
Not  the  lands  nor  the  goods  and  chattels  of  Black.  They  are  the 
things  which  Whitaker  is  pursuing;  but  the  judgment  did  not  decide 
the  \itle  to  them.  The  thing  in  question,  was  a  certain  debt  due 
from  Black  to  Kirgan.  Now  if  Whitaker  would  have  had  that  debt, 
but  for  this  judgment,  then  he  may  have  error. 

It  is  unnecessary,  however,  to  pursue  this  subject,  for  the 
plaintiff's  counsel  admits,  that  if  our  statute  has  not  introduced  a 
new  rule,  as  to  writs  of  error,  he  must  fail;  and  I  am  clearly  of 
opinion  that  it  has  not.  In  principle  and  practice,  the  doctrine  con- 
tended for,  would  be  extremely  iniquitous.  An  erroneous  and  even 
a  fraudulent  judgment  creditor,  might  defeat  an  honest  plaintifif, 
who  had  established  his  debt,  at  the  end  of  a  tedious  and  expensive 
law  suit. 

I  will  only  add,  that  no  writ  of  error  can  in  any  case  be  sued 
by  a  third  person,  while  the  original  parties  to  the  record  are  alive, 
except  such  writ  is  expressly  given  by  statute;  as  in  the  case  of  a 
reversioner  or  remainderman,  after  a  recovery  against  the  tenant 
for  life,  by  force  of  9  R.  2  ch.  3,  2  Saund.  46,  n.  6.  Marquis  of  Win- 
chester's Case,  3  Coke  4  a. ;  5  Mod.  397. 

Where  the  writ  of  error  is  not  prosecuted  by  the  party  on  the 
record,  but  by  the  heir  or  other  representative,  or  person  entitled  to 
it,  by  privity  of  estate  or  interest,  the  character  in  which  he  sues. 


"A  portion  of  the  opinion  is  omitted. 


MASTERSOX    7'.    IIERXDON  83 1 

must  appear  on  the  writ.  So  are  the  precedents,  and  such  is  the 
reason  of  the  thing.  Though,  if  heir,  he  need  not  in  all  cases,  show, 
how  he  is  heir.    William  v.  Gwyn,  2  Saund.  46,  and  in  n.  6. 

Ryerson,  J.,  concurred. 

Writ  quashed.^'' 


MASTERSON  v.  HERNDON 

Supreme  Court  of  United  States,  1870 

77  U.  S.  416 

Appeal  from  the  Circuit  Court  for  the  Western  District  of 
Texas,  the  case  being  thus : 

Howard  and  others  filed  in  the  court  below  a  bill  of  peace  and 
for  conveyance  of  pretended  title  to  a  tract  of  land  described, 
against  S.  A.  Maverick  and  J.  H.  Herndon,  and  on  that  bill  the 
court  decreed  that  the  complainant  "have  and  recover  of  the  said  S. 
A.  Maverick  and  the  said  J.  H.  Herndon  the  tract  of  land  in  the  bill 
described,  and  tliat  their  title  to  the  same  is  hereby  decreed  to  be 
free  from  all  clouds  cast  thereon  by  the  said  defendants," 


^'Accord:  Marquis  of  Winchester's  Case,  3  Coke  I  (15S2)  ;  Williarn  v. 
Gzi.'yn,  2  Saunders  46,  note  6  (1681)  ;  Anonymous,  5  Mod.  397  (1699)  ; 
Richardson  v.  Richardson,  2  Root  (Conn.)  219  (1795)  ;  Shirley  v.  Lunenbiirgh, 
II  Mass.  379  (1814)  ;  Szuan  v.  Picquet,  3  Pick.  (Alass.)  443  (i825)  ;  Bryant  v. 
Allen,  6  N.  H.  116  (1833);  Steel  V  Bridcnhach,  7  Watts  &  S.  (Pa.)  150 
(1844)  ;  Elcan  v.  Lancasterian  School,  2  P.  &  H.  (Va.)  .^3  (i8=;6)  \  Morris  v. 
Garrison.  27  Pa.  St.  226  (t8:;6')  ;  Swackhamer  v.  Kline,  25  N.  jT~lEq7^3 
(1874)  ;  Raleigh  v.  Rogers,  25  N.  J.  Eq.  506  (1874)  ;  La-wlcss  v.  Reagan,  128 
Mass.  592  (18S0)  ;  hi  re  Madras  Irrigation  &  Canal  Co.,  L.  R.  23  Ch.  Div. 
248  (1883)  ;  In  re  Young,  L.  R.  30  Ch.  Div.  421  (1885)  ;  United  Tel.  Co.  v. 
Bassano,  L.  R.  31  Ch.  Div.  630  (1886)  ;  In  re  Securities  Ins.  Co.,  L.  R.  (1894) 
2  Ch.  410;  Poundstone  v.  Baldzvin,  145  Ind.  139,  44  N.  E.  191  (1896)  ;  Winne 
V.  People,  177  111.  268,  52  N.  E.  377  (1898)  ;  Gates  Land  Co.  v.  Olds,  112  Wis. 
268,  87  N.  W.  ic88  (1901);  Weise  v.  Chicago,  200  111.  339,  65  N.  E.  648 
(1902)  ;  The  Milzvall,  L.  R.  (1905)  P.  155;  People  ex  rel.  v.  O'Connell,  252 
111.  304,  95  N.  E.  1008  (1911)  ;  U'jrk'.'!  F.stnfe,  50  Pp.  .Suner  Cf  6i/ijTnT-?y 
People  ex  rel.  v.  Lozver,  254  111.  306,  98  N.  E.' 557  (1Q12)  ;  AltoonaCttyv. 
Sihjrrr.inn.  ^2.  Pa.  Snppr.  C\  -^7^  (.tot^^  -.Hadfield  V.  Gushing,  35^7173067^6 
Atl_.  897  (1913)  ;  Szfan  v.  Tapley,  216  Alass.  61,  102  N.  E.  916  (1913)  ;  Pake  v. 
Leinkauf  B.    Co.,    1S6  Ala.  307,   65    So.    139    (1914). 

A  successful  party  can  not  appeal  from  a  judgment  or  decree  wholly  in 
his  favor.  Bacon's  Abridgment  Error  (K.  4)  ;  Holt  on  v.  Ruggles,  i  Root 
(Conn.)  318  (1791);  Raymond  V.  Barker,  2  Root  (Conn.)  370  (1796); 
Launhlin  v.  Peebles.  T  P,  ^-  W.  f  Pp  ).  114  (1829)  ;  Watkins  v.  Martin,  24  Ark. 
14,  81  Am.  Dec.  59  (1862)  ;  Havden  v.  Stone,  112  Mass.  346  (1873)  ;  Green  v. 
Blackzvell,  32  N.  J.  Eq.  768  (1880)  ;  Hooper  v.  Beecher,  109  N.  Y.  609,  15  N. 
E.  742,  2  Silvemail  Ct.  App.  i  (1888);  Northrop  v.  Jennison,  12  Colo.  App. 
523,  56  Pac.  187  (1899)  ;  Sadlier  v.  Nezu  York,  185  N.  Y.  408,  78  N.  E.  272 
(1906)  ;  Rogers  v.  Penobscot  Mining  Co.,  154  Fed.  606  (1907)  ;  Midland  V.  R. 
Co.  V.  Ftilgham,  181  Fed.  91  (1910).  Otherwise  where  he  does  not  get  all  the 
relief  sought.  Ingalls  v.  Lord,  I  Cow.  (N.  Y.)  240  (1823)  ;  Parker  v.  Nezv- 
land,  I  Hill  (N.  Y.)  87  (1841)  ;  Seymour  v.  Belden,  28  Conn.  443  (1859); 
Hartman  v.  Belleville  &  O.  R.  Co.,  64  111.  24  (1872)  ;  Kingsley  v.  Delano,  172 
Mass.  37,  SI  N.  E.  186  (1898)  ;  Blanchard  v.  Neill,  83  N.  J.  Eq.  446,  91  Atl.  811 
(1914)- 


8^";j  APl'l.Al.    AND    l-.KKOR 

l-'roni  this  dcoroc  lU'iiulon  ;ipi)cali.'(l.  In  ret^ard  to  ]\Iavcrick, 
tlio  petition,  whicli  was  sigiKHl  Iiy  counsel  only,  aiul  was  not  sworn 
to,  was  this: 

"Your  petitioner  says  that  his  co-defendant,  Maverick,  refuses 
to  prosecute  this  appeal  with  him." 

Mr.  P.  Phillips,  for  the  appellees,  now  objected  that  there  was 
no  valid  appeal  in  the  case,  because  the  decree  beinj:;'  a  joint  decree 
aii^ainst  Ilcrndon  and  !Maverick,  llcrndon  alone  had  asked  for  an 
appeal. 

I\Ir.  W.  W.  Boyce,  contra. 

Mr.  Justice  Miller,  after  stating  that  a  careful  examination  of 
the  record  satisfied  the  court  that  the  decree  was  a  joint  decree, 
and  tliat  the  appeal  was  clearly  taken  by  Herndon  alone,  delivered 
its  opinion  as  follows : 

It  is  the  established  doctrine  of  this  court  that  in  cases  of  law, 
where  the  judgment  is  joint,  all  the  parties  against  whom  it  is  ren- 
dered must  join  in  the  w'rit  of  error;  and  in  chancery  cases,  all  the 
parties  against  whom  a  joint  decree  is  rendered  must  join  in  the 
appeal,  or  they  will  be  dismissed.  There  are  two  reasons  for  this: 
I.  That  the  successful  party  may  be  at  liberty  to  proceed  in  the  en- 
forcement of  his  judgment  or  decree  against  the  parties  who  do  not 
desire  to  have  it  reviewed.  2.  That  the  appellate  tribunal  shall  not 
be  required  to  decide  a,  second  or  third  time  the  same  question  on 
the  same  record. ^^ 

In  the  case  of  IVilliauis  v.  Bank  of  the  United  States,^^  the  court 
says  that  where  one  of  the  parties  refuses  to  join  in  a  writ  of  error, 
it  is  worthy  of  consideration  whether  the  other  may  not  have  rem- 
edy by  summons  and  severance ;  and  in  the  case  of  Todd  v.  Daniel,^° 
it  is  said  distinctly  that  such  is  the  proper  course.  This  remedy  is 
one  Vihich  has  fallen  into  disuse  in  modern  practice,  and  is  unfa- 
miliar to  the  profession;  but  it  was,  and  we  find  from  an  examina- 
tion of  the  books,  allowed  generally,  when  more  than  one  person  was 
interested  jointly  in  a  cause  of  action  or  other  proceeding,  and  one 
of  them  refused  to  participate  in  the  legal  assertion  of  the  joint 
rights  involved  in  the  matter.  In  such  case  the  other  party  issued  a 
writ  of  summons,  by  which  the  one  who  refused  to  proceed  was 
brought  before  the  court,  and  if  he  still  refused,  an  order  or  judg- 
ment of  severance  \vas  made  by  the  court,  whereby  the  party  who 
wished  to  do  so  could  sue  alone.  One  of  the  effects  of  this  judgment 
of  severance  w^as  to  bar  the  party  who  refused  to  proceed,  from 
prosecuting  the  same  right  in  another  action,  as  the  defendant  could 
not  be  harassed  by  two  separate  actions  on  a  joint  obligation,  or  on 
account  of  the  same  cause  of  action,  it  being  joint  in  its  nature.^^ 


"Citing  Williams  v.  Bank  of  United  Slates,  il  Wheat.  (U.  S.)  414 
(1826);  Owings  v.  Kincannon,  7  Pet.  (U.  S.)  399,  8  L.  ed.  727  (1833); 
I'.'ilson  V.  The  Life  &  Fire  Ins.  Co.  of  N.  Y.,  12  Pet.  (U.  S.)  140  (1838). 

"11  Wheat.  (U.  S.)  414- 

^James  Todd,  Thomas  Warren,  ct  al.  v.  Chas.  Daniel,  16  Pet.  (U.  S.)  521 
(1842). 

*'Citinf(  Brooke's  Abridcjment  238,  tit.  "Summons  and  Severance";  2 
Rollc's  Abridgment,  same  title  488;  Archbold's  Civil  Pleadings  54;   Tidd's 


MASTERSON    V.    HERNDON  833 

This  remedy  was  applied  to  cases  of  writs  of  error  when  one  of  the 
plaintiffs  refused  to  join  in  assigning  errors,  and  in  principle  is  no 
doubt  as  applicable  to  cases  where  there  is  a  refusal  to  join  in  ob- 
taining a  writ  of  error  or  in  an  appeal.  The  appellant  in  this  case 
seems  to  have  been  conscious  that  something  of  the  kind  was  neces- 
sary, for  it  is  alleged  in  his  petition  to  the  circuit  court  for  an  appeal, 
that  Maverick  refused  to  prosecute  the  appeal  witli  him. 

We  do  not  attach  importance  to  the  technical  mode  of  proceed- 
ing called  summons  and  serverance.  We  should  have  held  this  ap- 
peal good  if  it  had  appeared  in  any  way  by  the  record  that  Maverick 
had  been  notified  in  writing  to  appear,  and  that  he  had  failed  to 
appear,  or,  if  appearing,  had  refused  to  join.-^  But  the  mere  allega- 
tion of  his  refusal,  in  the  petition  of  appellant,  does  not  prove  this. 
We  think  there  should  be  a  written  notice  and  due  service,  or  the 
record  should  show  his  appearance  and  refusal,  and  that  the  court 
on  that  ground  granted  an  appeal  to  the  party  who  prayed  for  it,  as 
to  his  own  interest.  Such  a  proceeding  would  remove  the  objec- 
tions made  to  permitting  one  to  appeal  without  joining  the  other, 
that  is,  it  would  enable  the  court  below  to  execute  its  decree  so  far 
as  it  could  be  executed  on  the  party  who  refused  to  join,  and  it 
would  estop  that  party  from  bringing  another  appeal  for  the  same 
matter.  The  latter  point  is  one  to  which  this  court  has  always  at- 
tached much  importance,  and  it  has  strictly  adhered  to  the  rule  un- 
der which  this  case  must  be  dismissed,  and  also  to  the  general  prop- 
osition that  no  decree  can  be  appealed  from  which  is  not  final  in  the 
sense  of  disposing  of  the  whole  matter  in  controversy,  so  far  as  it 


Practice  129,  1136,  Ii6g  See  note  to  Detroit  v.  Guaranty  Trust  Co.  of  New 
York,  93  C.  C.  A.  604,  168  Fed.  608  (1909). 

Cannon  v.  Abbot,  i  Lev.  210  (1667),  trespass  against  three.  One  pleads 
not  guilty  and  thereupon  issue  and  verdict  for  the  defendant.  Against  the 
other  two  judgment  by  default  and  a  writ  of  inquiiy  of  damages.  The  two 
bring  a  writ  of  error.  And  although  the  writ  of  error  be  brought  by  two  with- 
out the  third,  'twas  argued  to  be  good  because  he  can  not  be  joined,  for  he 
being  acquitted,  and  the  judgment  for  him,  he  can  not  say  that  the  judgment  is 
to  his  damage ;  and  so  held  the  whole  court,  except  Twysden,  who  held,  that 
the  writ  of  error  ought  to  have  been  brought  by  all  three.  Accord :  Parker  v. 
Lawrence,  Hob.  70  (1613)  ;  Coe  v.  Turner,  5  Conn.  86  (1823)  ;  Sliaw  v.  Blair, 
58  Mass.  (4  Cush.)  97  (1849);  Jaqneth  v.  Jackson,  17  Wend.  (N.  Y.)  434 
(1837);  Outcalt  V.  Collier,  8  Okla.  473,  58  Pac.  642  (1899);  Hubbard  v. 
Burnet  L.  L.  Co.,  51  Ind.  App.  97,  98  N.  E.  loii  (1912).  Contra:  Barnzvell  v. 
Graunt,  Style  190  (1649).  See  where  judgment  was  against  all,  Walter  v. 
Stokoe,  I  Ld.  Raym.  71  (1694)  ;  Fotterall  v.  Floyd,  6  Serg.  &  R.  (Pa.)  315 
(1825).  ■ 

^^In  Doty  v.  Strong,  i  Finn.  (Wis.)  165  (1842),  it  is  said:  "The  more 
easy  and  legitimate  practice  would  be  to  enter  a  rule  against  those  persons 
named  in  the  writ  of  error  as  plaintiffs  and  not  appearing,  either  to  appear  and 
assign  error  or  submit  to  be  severed."  Accord  ■.Fotterall  w.  Floyd,  6  Serg  &_R. 
(Pa.)  315  (1820)  ;  Sheppard  v.  Fenton,  9  N.  J.  L.  8  C1827)  ;  Fagan  vHOong, 
30  Mo.  222  (i860).  And  see  Cambria  Trust  Co.  v.  Union  Trust  Co.,  154  Ind. 
291,  55  N.  E.  745,  56  N.  E.  665,  48  L.  R.  A.  41  (1899)  ;  Englcken  v.  Webber, 
47  Iowa  558  (1877)  ;  Thompson  v.  Valarino,  2  How.  Pr.  (^f.  Y.)  259  (1846)  ; 
Gerts  V.  Milwaukee  R.  Co.,  153  Wis.  475,  140  N.  W.  312  (1913).  In  Pharo 
V.  Parker,  21  N.  J.  L.  332  (1S48),  where  one  of  two  joint  debtors  was  sum- 
moned and  appeared  and  made  defense  for  both,  he  was  permitted  to  appeal 
for  both,  it  not  appearing  that  his  co-defendant  refused  to  join  in  the  appeal. 

53 — Civ.  Proc. 


S^^4  AITKAL    AND    KKKOU 

has  been  possible  to  adhere  to  it  without  hazarding  the  substantial 
rights  of  parties  interested.   AVe  dismiss  this  appeal  with  the  less  re- 
gret, as  there  is  still  time  to  obtain  another  on  i)roceedings  not  liable 
to  tlie  objection  taken  in  this.-^ 
Appeal  dismissed. 


FRENXH  7-.  PETERS 

Supreme  Judicial  Court  of  Massachusetts,  1901 
177  Mass.  568" 

This  suit  in  equity  was  begun  on  June  12,  1895,  by  a  writ  in 
which  Harriet  C.  Patch  was  joined  as  defendant  with  Peters,  ad- 
ministrator of  the  estate  of  Peaslee,  and  with  the  Second  National 
Bank  of  Haverhill.    The  relief  sought  was  in  substance  to  compel 


=^ Accord:  Ruddock's  Case,  6  Coke  25  (1598)  ;  Andrews  v.  Lord  Cromwell, 
Cro.  Eliz.  891  (1600)  ;  Hackct  v.  Heme,  3  Mod.  134.  Carth.  7  (1684)  ;  IValtcr 
V.  Stokoe,  I  Ld.  Raym.  71  (1694);  Ginger  v.  Cowpcr,  2  Ld.  Raym.  1403 
(1724)  ;  Breii'cr  v.  Turner,  I  Strange  233  (1720)  ;  Vavasor  v.  Faux,  1  Wils. 
88  (1745)  ;  Andrews  v.  Bosworth,  3  Alass.  223  (1807)  ;  Phelps  v.  Ellszvorth, 
3  Dav  (Conn.)  144  (1808);  Bradshaw  v.  Callaghan,  8  Johns.  (N.  Y.)  558 
(1811');  Gallagher  v.  Jackson,  I  Serg.  &  R.  (Pa.)  492  (1815);  Shirley  v. 
Lutiet'.burgh,  II  Mass.  579  (i8i4yyTo»cra7rv.  FToyd,  6  Serg.  &  R.  (Pa.)  315 
(1820)  ;  Caller  v.  Brittain,  Minor  (ATa7r27  (1^21);  Emerick  v.  Armstrong, 
I  Ohio  513  (1824)  ;  Shcppard  v.  Fenton,  9  N.  J.  L.  8  (1827)  ;  Johnson  v.  John- 
son, I  Dana  (Ky.)  364  (1833);  Cay  v.  Richardson,  35  Mass.  417  (1836); 
U'hitcker  v.  Parker,  2  Plarr.  (Del.)  413  (1838);  Doty  v.  Strong,  i  Pinn. 
(Wis.)  165  (1842)  ;  Miller  V.  Heard,  6  Ark.  73  (1845)  ;  Savage  v.  Walsh,  24 
Ala.  293  (1854)  ;  Moore  v.  McGitire,  26  Ala.  461  (1855)  ;  Smctters  v.  Raincy. 
14  Ohio  St.  287  (1863)  ;  Cumberland  Coal  &  Iron  Co.  v.  Jeffries,  21  Md.  375 
(1863)  ;  VanBuskirk  v.  Hohokcn  &  N.  Y.  R.  Co.,  31  N.  J.  L.  367  (1865)  ; 
Samidcrs  v.  Saunders,  49  ]\Iiss.  327  (1873)  ;  Knight  v.  Weistsopf,  20  Fla.  140 
(1883)  ;  Mclnixre  v.  5"/;o//v,  139  HI-  I7i,  29  N.  E.  43  (1891)  ;  Hardee  v.  ^Ft7- 
son,  146  U.  S.  179,  36  L.  ed.  933  (1892)  ;  Sipperlcy  v.  5";«i7/!,  155  U.  S.  86,  39 
L.  ed.  79  (1894) ;  Beardslcy  v.  Arkansas  R.  Co.,  158  U.  S.  123,  39  L.  ed.  919 
(1895)  ;  Richardson  v.  Greenwood  Twp.,  6  Kans.  App.  521,  50  Pac.  941  (1897)  ; 
Gcncarelle  v.  New  York,  N.  H.  &  H.  R.  Co.,  21  R.  I.  216,  44  Atl.  174  (1899)  ; 
Slater  v.  Hamacher,  15  App.  D.  C.  294  (1899)  ;  McCallum  v.  Culpepper,  41  Fla. 
107,  26  So.  187  (1899);  Sellers  v.  Smith,  143  Ala.  566,  39  So.  356  (1904); 
Touhey  v.  McCagg,  134  III.  App.  56  (1907)  ;  Taylor  v.  Lessnitzer,  31  App.  D.  C. 
92  (1908);  Provident  IJfe  &  Trust  Co.  v.  Camden  R.  Co.,  177  Fed.  854 
(1910)  ;  Mills  V.  Tecl,  244  HI.  39,  9i  N.  E.  83  (1910) ;  P.  IV.  &  B.  R.  Co.  v. 
Stumpo,  112  Md.  571,  77  Atl.  266  (1910)  ;  Ihbs  v.  Archer,  185  Fed.  37  (1911)  ; 
Burns  v.  Toney,  27  Okla.  728,  117  Pac.  209  (1911)  ;  Continental  Ins.  Co.  v. 
Gue,  51  Ind.  App.  232,  98  N.  E.  147  (1912)  ;  Appleby  v.  Dowden,  35  Okla.  707, 
132  Pac.  349  (1913);  Continental  Savings  Bank  v.  Corey  Bros.  Const.  Co., 
205  Fed.  282  (1913)  ;  West  v.  Johnson,  66  Fla.  4,  62  So.  913  (1913)-  Contra: 
Mattison  v.  Jones,  9  How.  Pr.  (N.  Y.)  152  (1854)  ;  Girand  v.  Beach,  4  E.  D. 
Smith  (X.  Y.)  337  (1855)  ;  Home  Savings  Bank  v.  Traube,  6  Mo.  App.  221 
(1878);  Turner  v.  Newell,  129  Ga.  89,  58  S.  E.  657  (1907)  ;  Spokane  Ranch 
&  Water  Co.  v.  Beattv,  2,7  Mont.  342,  96  Pac.  727  (1908);  Cummtngs  v. 
Reins  Copper  Co.,  40  Mont.  599,  107  Pac.  904  (1910)  ;  Dickens  v.  Dickens, 
174  Ala.  305,  56  So.  806  (1911)  ;  Electrical  Accessories  Co.  v.  Mittenthal,  146 
App.  Div.  647,  131  N.  Y.  S.  433  (1911)-  ,        ,    ,      , 

"The  reporter's  statement  of  facts  is  omitted  and  the  facts  as  given  are 
taken  from  the  opinion  of  the  court,  part  of  which  is  omitted.  The  decree 
appealed  from  was  affirmed. 


FRENCH    V.    PETERS  835 

the  payment  to  the  plaintiff  of  a  non-negotiable  promissory  note 
given  b}'-  the  defendant  Patch  to  the  intestate  Peaslee  in  1889,  and 
also  of  a  deposit  of  his  in  the  defendant  bank,  both  the  note  and  the 
deposit  book  having  been  delivered  to  the  plaintiff  b}^  Peaslee  in  his 
lifetime  in  consideration  of  services  rendered  to  him  and  in  pursu- 
ance of  a  contract  made  by  him.  The  suit  was  brought  in  equity  be- 
cause both  the  note  and  the  deposit  were  transferred  to  the  plaintiff 
by  one  act  of  Peaslee  and  the  plaintiff's  right  was  denied  by  Peaslee's 
administrator  as  well  as  by  the  defendant  Patch  and  by  the  bank. 

The  case  was  referred  to  a  master  and  while  the  hearings  were 
proceeding  Plarriet  C.  Patch  died  and  Arthur  D.  Patch  and  George 
D.  Whitten  were  appointed  administrators  of  her  estate,  and  were 
such  administrators  when  the  counsel  who  had  filed  her  answer 
appeared  at  the  hearing  before  the  master  and  represented  her 
estate  as  counsel  for  her  administrators. 

The  master  found  and  reported  that  the  deposit  and  the  note 
were  the  property  of  the  plaintiff,  that  the  note  was  a  valid  and 
subsisting  obligation  against  the  estate  of  Harriet  C.  Patch,  that 
the  complainant  was  entitled  to  a  decree,  that  the  defendant  Peters 
as  administrator  of  Peaslee's  estate  should  assign  the  deposit  and 
the  note  to  the  plaintiff,  and  that  the  bank  should  pay  to  the  plain- 
tiff the  amount  of  the  deposit,  and  that  Harriet  C.  Patch  should  pay 
to  the  plaintiff  the  am.ount  of  the  note. 

The  defendant  Peters  alone  filed  objections  and  exceptions  to 
the  master's  report.  These  exceptions  not  being  insisted  upon  the 
master's  report  was  confirmed  by  the  court  and  a  decree  entered  in 
favor  of  the  plaintiff,  which  decree  among  other  things  mot  now 
material  required  Peters  as  administrator  of  the  estate  of  Peaslee 
to  assign  the  note  of  Patch  to  the  plaintiff  and  required  "the  defend- 
ants, Arthur  D.  Patch  and  George  W.  Whitten,  administrators  of 
the  estate  of  tlie  defendant,  Harriet  C.  Patch"  to  pay  to  the  plain- 
tiff the  amount  of  that  note  and  interest. 

The  decree  was  entered  on  March  9,  1900.  On  March  13,  1900, 
Whitten  as  administrator  of  Patch  moved  the  court  to  vacate  the 
decree.  On  April  6,  1900,  he  filed  in  the  cause,  in  his  own  name 
as  administrator,  an  appeal  to  this  court  from  the  decree  of  March 
9,  1900.  On  May  10,  1900,  Arthur  D.  Patch  as  one  of  the  adminis- 
trators of  Harriet  C.  Patch  filed  his  written  objection  to  the  fur- 
ther prosecution  of  the  appeal  of  Whitten,  alleging  that  he  was  a 
coadministrator  with  Whitten  and  that  the  appeal  was  taken  with- 
out Patch's  knov/ledge  or  consent.  On  the  same  day  the  plaintiff 
moved  that  V/hitten's  appeal  be  dismissed  because  he  had  no  right 
to  appeal,  because  he  did  not  file  objections  or  exceptions  to  the 
master's  report,  and  because  Arthur  D.  Patch  was  coadministrator 
with  Whitten  and  did  not  join  in  or  authorize  the  appeal. 

Barker,  J. :  The  right  of  appeal  to  the  full  court  is  given  by 
our  statutes  to  "any  party  aggrieved."  Pub.  Stat.  ch.  151,  par.  13,  St. 
1883,  ch.  223,  par.  2.  The  fact  that  such  a  party  has  filed  no  excep- 
tions to  the  master's  report,  while  it  may  preclude  him  from  raising 
certain  questions  in  the  appellate  court,  is  not  a  reason  for  dismissing 


836  APPEAL    AND    ERROR 

his  appeal  from  a  final  decree.  Upon  such  an  appeal  the  question  is 
open  to  him  whether  upon  the  facts  found  \>y  the  master  the  decree 
is  justified  hy  the  bill  ami  the  record. 

It  is  said  to  be  the  g;eneral  rule  that  the  apju-al  of  a  party  a^- 
grieved  may  be  dismissed  because  other  parties  with  whom  he  is 
joined  as  defendant  have  not  appealed  also.  Ozviiigs  v.  Kincannon, 
7  Pet,  (U.  S.)  399;  Love  joy  v.  Irclan,  17  ATd.  525;  Mastcrson  v. 
Hcnidon,  10  Wall.  (U.  S.)  416.  See  also  Clifton  v.  Sheldon,  23 
How.  (U.  S.)  481,  and  2  Encyc.  of  PL  &  Pr.  182,  ct  seq.  But  it  is 
otherwise  when  the  codefendants  have  separate  interests.  Todd  v. 
Daniel,  16  Pet.  (U.  S.)  521;  Brezvster  v.  Wakefield,  22  How.  (U. 
S.)  118;  Day  V.  IJ^asliburn,  23  How.  (U.  S.)  309.-^  Under  our  own 
practice,  from  a  very  early  time,  independent  parties  joined  in  an 
action  have  had  the  right  without  joining  their  codefendants  to  have 
reversed  so  much  of  an  erroneous  judgment  as  affected  themselves. 
Whiting  v.  Cochran,  9  Mass.  532;  Shirley  v.  Limenhurg,  ii  Mass. 
379,  384.  The  plaintiff  in  the  present  case  does  not  contend  that 
Whitten's  appeal  must  be  dismissed  because  the  bank  and  Peaslee's 
administrator  have  not  joined  in  the  appeal.  The  only  ground  of  dis- 
missal urged  is  the  nonjoinder  of  Patch  who  is  Whitten's  coadmin- 
istrator. 

The  doctrine  of  the  common  law  is  that  a  suit  in  favor  of  the 
estate  of  a  person  deceased  must  be  brought  in  the  name  of  all  living 


'^Lancaster  v.  Keylcigh,  Cro.  Car.  300  (1633).  Though  hail  may  have  a 
writ  of  error,  yet  one  writ  of  error  lyeth  not  jointly  for  tlie  principal  and 
the  bail,  because  there  are  several  judgments  given  against  them;  and  the 
damages  against  one  is  not  against  tlic  other;  wherefore  they  may  not  join 
in  a  writ  of  error  no  more  than  tenant  for  Hfe  and  he  in  reversion;  or  the 
tenant  and  vouchee  may  join.  Accord:  Bushell  v.  Yallcr,  Cro.  Car.  408 
(1635)  ;  Smith  v.  James,  Cro.  Car.  575  (1639)  ;  Sandelozv  v.  Dcvcrton,  Cro. 
Tac.  384  (1615);  Stiihbs  v.  Flozvcr,  i  Bulst.  125  (1609);  Anon.,  Litt.  93 
(1628)  ;  Athcrton  v.  Hole,  Lev.  137  (1664).  See  Henry  v.  IVhitchurst,  66  Fla. 
567,  64  So.  22,Z  (1914)-  It  has  been  held  that  separate  claimants  to  a  fund 
can  not  prosecute  a  joint  appeal.  White's  Appeal,  15  W.  N.  Cas.  (Pa.)  313 
(1884)  ;  AJ^msgti£,AM£al,_llQ_V^^,_3L.A^,_J^-^-  2>^7  (1885)  ;  Revnolds^v. 
Eiynolds- LdunherJla^  i/iJPa.  St.  437,  34  Atl.  791  (1896)  ;  Samson's  Esj^aic. 
22   Pa^    Super.    Ct.  03    (1903);    Cqmmonwealtji   v.    Union   Snrety__&c.    Co., 

37  Pa.  Super  Ct_i67  (1908).  But  "contra:  In  re  California  Mutual  LifPlns. 
rdTTSnTar  364,  22  Pac.  86g  (1889)  ;  Kaehler  v.  Ilalpin,  59  Wis.  40,  17  N.  \Y. 
868  (1883)  ;  Frank  v.  Zeiglcr,  46  W.  Va.  614,  2?,  S.  E.  761  (1899),  holding 
that  all  parties  against  whom  a  decree  or  judgment  is  rendered  who  are  in- 
terested in  the  main  question  decided  and  are  aggrieved  in  the  same  way 
by  the  same  decree  may  prosecute  a  joint  appeal. 

Generally,  if  the  interests  of  the  parties  against  whom  a  decree  is  made 
are  separate  and  distinct  or  if  there  are  separate  judgments  against  them, 
separate  appeals  may  be  taken.  Holmes  v.  Henty,  4  CI.  &  F.  99  (1836)  148; 
Todd  v.  Daniel,  6  Pet.  (U.  S.)  521,  10  L.  ed.  1054  (1S42)  ;  Forgay  v.  Conrad, 
6  How.  (U.  S.)  201,  12  L.  ed.  404  (1848)  ;  Farrcll  v.  Patterson,  43  111.  52 
C1867)  ;  Genet  v.  Davenport,  60  N.  Y.  194  (1875)  ;  Milncr  v.  Meek,  95  U.  S. 
252,  24  L.  ed.  4-14  (1877)  ;  Williams  v.  Western  Union  Telegraph  Co.,  93  N.  Y. 
162  (1883)  ;  Gilfillan  v.  McKee,  159  U.  S.  303,  40  L.  ed.  161  (1895)  ;  Hull  v. 
Bell,  54  Ohio  St.  228,  43  N.  E.  584  (1896)  ;  Jacksonville  R.  Co.  v.  Brought  on, 

38  Fla.  139,  20  So.  829  (1896)  ;  South  Portland  Land  Co.  v.  Mnnger,  36  Ore. 
457,  .54  Pac.  815  (1900);  Winters  v.  United  States,  207  U.  S.  564,  52  L.  ed. 
340  (1907)  ;  St.  John  v.  Andretvs  Inst.,  192  N.  Y.  382,  85  N.  E.  143  (1908)  ; 
Copeland  v.  Dixie  Lumber  Co.,  4  Ala.  230,  57  So.  124  (1911). 


J 


FRENCH    V.    PETERS  837 

executors  or  administrators,  and  that  if  either  of  them  is  unwilling 
to  have  the  suit  prosecuted  in  his  name,  the  one  who  has  instituted 
it  may,  upon  a  summons,  have  a  judgment  of  servance  and  con- 
tinue the  suit  in  his  own  name  alone.  Hensole's  Case,  9  Coke  36,  b ; 
Brooks  V.  Straod,  i  Salk.  3;  Com.  Dig.  Abatement,  E.  13;  Pleader 
2D.  I,  3,  10.  But  when  executors  or  administrators  are  joined  as 
defendants  they  may  plead  different  pleas  and  that  plea  which  is 
most  for  the  advantage  of  the  testator  or  the  intestate  shall  be 
received.  Elwell  v.  Quash,  i  Str.  20,  citing  Baldwin  v.  Church,  10 
Mod.  323 ;  Foster  v.  Jackson,  Hob.  52  a,  61 ;  App.  v.  Dreisbach,  2 
Rawle,  287,  301 ;  Geddis  v.  Irvine,  5  Pa.  St._5o8,  512. 

In  LjY02Ol-^j^ii^w^  I  Watts_(P^  161,  the  appeal  of  one  of  two 
coadministrators,  his  associate  dissenting  from  the  appeal,  was 
quashed.  The  appellant  had  given  no  recognizance  or  bail  as  re- 
quired by  statute.  The  judgment  appealed,  from  relieved  the  estate 
and  the  administrators  from  all  liability.  The  court  in  holding  that 
the  appeal  was  rightly  quashed  say  that  when  executors  sever  in 
pleading  the  court  will  take  that  plea  which  is  better  for  the  estate 
and  that  it  clearly  Avas  best  for  the  estate  to  have  the  judgment 
stand. 

When  Harrfet  C.  Patch,  the  original  defendant,  died  her  estate 
as  such  was  not  a  party  to  the  suit.  When  counsel  representing  that 
estate  took  part  in  the  hearing  of  the  cause  before  the  master  as 
counsel  for  the  administrator,  this  taking  part  in  the  proceedings 
was  enough  to  make  both  administrators  of  the  estate  parties  de- 
fendant to  the  suit.  Each  administrator  has  since  recognized  that 
he  was  such  a  party,  Whitten  by  moving  to  vacate  the  decree  and  by 
appealing  from  it,  and  Patch  by  moving  that  Whitten's  appeal  be 
dismissed.  The  appeal  of  one  administrator  and  the  attempt  of  the 
other  to  have  the  appeal  dismissed  was  in  effect  a  severance  in 
pleading,  that  is,  in  the  conduct  of  the  defense,  by  coadministrators 
defendants  in  the  same  suit,  and  so  allowable  under  the  doctrine 
stated,  unless  as  in  Lyon  v.  Allison  it  is  apparent  that  it  is  better 
for  the  estate  to  have  the  decree  stand.  But  in  the  present  case  the 
decree  is  against  estate  while  in  Lyon  v.  Allison  the  decree  freed  the 
estate  from  all  liability.  Besides  this  the  present  decree  orders  both 
the  coadministrators  by  name  to  pay  the  plaintiff  the  amount  of  the 
note  and  interest,  thus  imposing  upon  the  appellant  Whitten  per- 
sonally a  liability  to  be  proceeded  against  for  contempt  if  he  does 
not  comply  with  the  decree.  We  are  therefore  of  opinion  that  the 
motion  to  dismiss  the  appeal  should  be  overruled.^^ 


^^See  also  Frescohaldi  v.  Kinaston,  2  Str.  783  (1727)  ;  Portis  v.  Creagh, 
4  Port.  (Ala.)  332  (1837)  ;  Smith  v.  Smith,  II  N.  H.  459  (1841)  ;  Harrington 
V.  Roberts,  7  Ga.  510  (1849)  ;  White  v.  Connecticut  Gen.  Life  Ins.  Co., 
34  App.  D.  C.  460  (1910).  In  State  ex  rel.  Kelly  v.  Justices  of  Moore  County, 
24  N.  Car.  430  (1842),  a  mandamus  issued  against  the  justices  of  a  county 
to  compel  the  levying  of  a  tax  and  a  majority  of  them  appealed.  The  court 
refused  to  dismiss  the  appeal  because  some  refused  to  join  in  the  appeal. 
The  case,  said  the  court,  was  not  an  action  prosecuted  against  several  per- 
sons, as  individuals,  but  was  against  a  body  which  acted  only  tlirough  the 
medium  of  a  majority  of  its  members. 


8^>S  APl'EAL   AND    ERROR 

KELLS  V.  NELSON-TENNY  LUMBER  CO. 
Supreme  Court  of  JMinnesota,  1S98 

74  Minn.  8 

Lucas  Kells,  as  assignee  of  N.  P.  Clarke  &  Company,  insolvents, 
ofFcrcd  at  public  auction  certain  pine  lands  belonging  to  the  insol- 
vent estate.  There  being  no  bids  received,  he  negotiated  a  sale 
tliereof  for  $36,500  to  the  Brainard  Lumber  Company,  subject  to 
the  approval  of  tlie  court.  Upon  applying  to  the  district  court  for 
Stearns  county  for  an  order  confirming  the  sale,  certain  creditors  of 
the  insolvents  filed  a  protest  against  the  confirmation  of  such  sale 
on  the  ground  that  another  bidder  had  made  an  offer  of  $38,000,  and 
asked  for  an  order  confirming  a  sale  to  the  latter  bidder.  The  court, 
Baxter,  J.,  confirmed  the  sale  to  tlie  Brainard  Lumber  Company. 
From  the  order  of  confirmation  the  Nelson-Tenney  Lumber  Com- 
pany, a  creditor  of  the  insolvents,  appealed.  In  the  Supreme  Court 
a  motion  was  made  to  dismiss  the  appeal. 

Start,  C.  J-  '■  The  assignee  herein  entered  into  a  written  con- 
tract with  the  Brainard  Company,  whereby  he  sold  to  it,  subject  to 
confirmation  by  the  court,  certain  pine  land  belonging  to  the  trust 
estate.  He  made  a  written  report  thereof,  to  which  was  attached  a 
copy  of  the  contract,  to  the  -court,  which  made  an  order  that  cred- 
itors show  cause  why  the  sale  should  not  be  confirmed.  The  ap- 
pellant appeared,  and  opposed  the  confirmation ;  but  the  court  made 
its  order  confirming  the  sale,  from  which  the  appellant  appealed, 
serving  notice  thereof  on  the  assignee,  but  not  upon  the  purchaser. 
This  is  a  motion  to  dismiss  the  appeal,  because  the  purchaser  was 
not  made  a  party  to  the  appeal. 

G.  S.  1894,  par.  6134,  provides  that  an  appeal  shall  be  made  by 
service  of  a  notice  in  writing  on  the  adverse  party  and  the  clerk  of 
court.  While  an  appeal  is  the  continuation  of  the  Original  action  or 
proceedings  in  another  jurisdiction,  yet  it  is  analogous  in  many  re- 
spects to  a  writ  of  error,  which  is  regarded  as  the  beginning  of  a 
new  action;  and  this  court  will  consider  only  questions  between  the 
appellant  and  the  parties  upon  whom  the  notice  of  appeal  has  been 
served.-^  Therefore  the  notice  of  appeal  must  be  served  on  each 
adverse  party  as  to  whom  it  is  sought  to  review,  in  this  court,  any 


"The  common-law  practice  is  illustrated  by  State  Bank  of  Illinois  v. 
Wilson,  8  III.  89  (1846).  Treat,  J.:  "This  writ  of  error  is  prosecuted  against 
three  defendants,  and  the  scire  facias  has  been  returned,  served  on  one  of 
them  only,  and  non  est  inventus  as  to  two  others.  The  plaintiffs  have 
obtained  a  rule  on  the  defendant  sei^ved  to  join  in  error,  which  rule  he  now 
asks  to  have  vacated.  Before  the  plaintiffs  are  entitled  to  a  rule  for  joinder 
in  error,  they  must  bring  all  of  the  defendants  into  court,  either  by  the 
ser\-ice  of  a  scire  facias,  or  a  publication  against  such  as  are  nonresidents, 
or  can  not  be  found.  The  cause  must  be  heard  as  between  all  of  the  parties 
to  the  v.rit  of  error.  The  motion  must  be  granted,  and  the  order  entered 
for  a  joinder  in  error  will  be  vacated."  See  also  Roberts  v.  Taylor,  4  Port. 
(Ala.)  421   (1837) 


KELLS   V.    KELSO N-TENXY    LBR.    CO.  839 

order  or  judgment,  although  he  did  PxOt  appear  in  the  proceeding  or 
action  in  the  district  court.  Frost  v.  St.  Paul  B.  &  Inv.  Co.,  57  Minn. 
325 ;  Oszvald  v.  St.  Paul  G.  Pub.  Co.,  60  Minn.  82 ;  Lambert  v- 
Scandinavian- American  Bank,  66  Minn.  185.  It  necessarily  follows 
that  Avhere  the  order  appealed  from  is  indivisible,  and  must  be 
affirmed,  reversed  or  modified  as  to  all  parties  to  the  action  or  pro- 
ceeding, the  appeal  must  be  dismissed  if  they  are  not  all  made  par- 
ties to  the  appeal.  The  order  in  this  case  is  such  an  order.  It  can 
not  be  reversed  as  to  the  assignee  v/ithout  reversing  it  as  to  the  pur- 
chaser ;  and  if  the  latter  is  an  adverse  party,  within  the  meaning  of 
the  statute,  the  appeal  must  be  dismissed. 

The  adverse  party,  w^ithin  the  intent  of  the  statute,  means  the 
party  v/hose  interest  in  relation  to  the  subject  of  the  appeal  is  in 
direct  conflict  with  a  reversal  or  modification  of  the  order  or  judg- 
ment appealed  from.  Tliompson  v.  Ellsworth,  i  Barb.  Ch.  (N.  Y.) 
624;  S enter  v.  Castro,  38  Cal.  637;  Williar.is  v.  Santa  Clara,  66  Cal. 
193.  The  subject  matter  of  this  appeal  is  the  sale  of  the  land 
to  the  purchaser,  the  Brainard  Lumber  Company.  When  the  district 
court  confirmed  the  sale,  all  of  the  conditions  of  the  sale  had  been 
com.plied  with,  and  it  became  absolute.  The  appellant,  a  creditor, 
seeks  by  this  appeal  a  reversal  of  the  order,  whereby  the  sale  would 
be  set  aside,  and  the  purchaser  lose  his  bargain.  Its  interest  is  in 
direct  conflict  with  a  reversal  of  the  order,  and  therefore  it  is,  as  to 
the  creditor,  an  adverse  party.  Indeed,  the  purchaser  is  practically 
the  only  adverse  party,  for  the  assignee  represents  all  of  the  cred- 
itors, including  the  appellant.  He  does  not  represent  the  purchaser. 
Their  relation  is  that  of  vendor  and  vendee,  holding  each  other  at 
arm's  length. 

It  may  be  suggested  that  the  purchaser  is  not  a  party  of  record. 
The  parties  to  tlie  record  are  not  always  necessary  parties  to  the 
appeal,  nor  are  those  who  were  not  parties  to  the  record,  as  orig- 
inally made,  to  be  overlooked  in  prosecuting  an  appeal.  Elliott  App. 
Proc,  section  153.  It  has  accordingly  been  held  that,  on  an  appeal 
from  an  order  confirming  a  sale  or  denying  a  resale,  the  purchaser 
is  a  necessary  party.  See  Barnes  v.  Stoughton,  6  Hun  (N.  Y.)  254; 
Sanders  v.  Wade  (Ky.),  30  S.  W.  656;  Kitchell  v.  Irby,  42  Ala.  447. 
The  purchaser  in  this  case  was,  however,  a  party  to  the  proceeding 
in  which  the  order  of  confirmation  v/as  made.  By  entering  into  the 
contract  with  the  assignee  for  the  purchase  of  the  land  subject  to 
the  approval  of  the  court,  it  submitted  its  interests  to  the  decision  of 
the  court,  and  became  a  party  to  the  proceedings  resulting  in  the 
order.  The  purchaser  is  a  necessary  adverse  party  to  an  appeal  from 
such  order.-* 

Appeal  dismissed. 


^'All  parties  adverse  to  appellants  in  the  court  below  who  are  affected 
by  the  judgment  or  decree  must  be  made  parties  to  the  appeal.  Summerlin 
V.  Reeves,  20  Tex.  85  (1867)  ;  Clark  v.  Knox,  65  Ala.  401  (1880)  ;  Hunderlock 
V.  Dundee  Mortgage  &  Trust  Co.,  88  Ind.  139  (1882)  ;  IVilliams  v.  Sania 
Clara  Minincj  As.m.,  66  Cal.  193,  5  Pac.  8^  (1884)  ;  Cates  v.  Sparkman,  66  Tex. 
155,  18  S.  W.  446  (1886)  ;  Davis  v.  Mercantile  Tr.  Co.,  152  U.  S.  590,  38  L.  ed. 
563  (1894)  ;  Bozeman  v.  Cale,  139  Ind.  187,  35  N.  E.  828  (1-894)  ;  Equitable 


S40  AIMMAL    AND    KKROR 

SECTION  3.    SUPERSEDEAS 

KOUNTZI':    r.    OMAHA   IKTri'.L  CO. 

Supreme  Court  of  Umtkd  States,  1882 

107  U.  S.  378" 

Bradley,  J.:  By  the  coninion  law  a  writ  of  error,  williout  any 
security,  was  of  itself  a  supersedeas  of  execution  from  the  time  of 
its  allowance  or  recognition  by  the  court  to  which  it  was  directed; 
and  even  before,  if  the  defendant  in  error  had  notice  of  it;  or,  in 
the  common  pleas,  from  the  time  of  its  delivery  to  the  clerk  of  the 
errors  of  that  court,  whose  business  it  was,  amongst  other  things, 
to  prepare  the  returns,  i  Tidd's  Pr.  530,  1145;  Impey's  Pr.  C.  P. 
16;  Petersd.  Abr.  tit.  Error,  I.  (H.  a.)-  The  presentation  of  the 
writ  issuing  from  the  superior  court  stopped  all  further  proceedings 
except  such  as  were  incidental  to  a  compliance  with  its  command 
to  certify  the  record.  But  as  writs  of  error  came  to  be  sued  out 
for  the  purpose  of  delay,  various  acts  of  parliament  were  passed, 
requiring  security  in  certain  cases,  in  order  that  the  writ  might 
operate  as  a  supersedeas.  First,  without  referring  to  a  statute  in 
the  time  of  Elizabeth,  the  statute  of  3  James  I.,  ch.  8,  declared 
that  no  execution  should  be  stayed  or  delayed,  upon  or  by  any  writ 
of  error,  or  supersedeas  thereon,  for  the  reversing  of  any  judgment 
in  debt  upon  a  single  bond,  or  a  bond  with  condition  for  the  pay- 
ment of  money  only,  or  in  debt  for  rent,  or  upon  any  contract,  un- 
less the  plaintiff  in  error,  with  two  sufficient  sureties,  should  first 
be  bound  to  the  plaintiff  in  the  judgment,  "by  recognizance,  in 
double  the  sum  recovered  by  the  former  judgment,  to  prosecute  the 
writ  of  error  with  effect,  and  also  to  satisfy  and  pay,  if  the  said 
iudgment  should  be  affirmed,  or  the  writ  of  error  nonprossed,  all 
and  singular  the  debts,  damages  and  costs,  adjudged  upon  the  for- 
mer judgment;  and  all  costs  and  damages  to  be  awarded  for  the 
delaying  of  execution."  This  statute  w^as  specific  as  to  the^  cases 
in  which  bail  in  error  (as  it  was  called)  was  required,  and  it  was 
frequently  held  that  it  could  not  be  required  in  any  other  cases.  2 
.Sellon's  Pr.  367-374;  2  Tidd  11 50.  Subsequently  by  the  statute  of 
13  Car.  11,  ch.  2,  as  enlarged  by  16  and  17  Car.  II,  ch.  8,  the  same 


^ng.  Co.  V.  Lowe,  53  Kans.  30,  35  Pac  820  (1894)  ;  Wilson  v.  Kiescl,  164 
U  S.  248,  41  L.  ed.  422  (1896)  ;  Sheridan  v.  Snider,  4  Kans.  App.  214,  45  Pac. 
1007  (1896)  ;  J'inccnt  V.  Collins,  122  Cal.  3S7,  55  Pac.  129  (1898)  ;  Richardson 
V.  Thompson,  ^9  Nebr.  299,  80  N.  W.  909  (1899)  ;  Krcntcr  v.  English  Lake  & 
Land  Co.,  1-9  Ind.  372,  65  N.  E.  4  (1902)  ;  Kiihn  v.  American  Mitt.  L.  Ins.  Co., 
160  Ind  3^6^  66  N.  E.  890  (1902)  ;  Williamson  v.  Grider,  97  Ark.  588,  135  S.  W. 
361  (1911)  ;  Teel  v.  Chesapeake  &  Ohio  R.  Co.,  204  Fed.  914  (1913)-  Where 
the  parties  are  very  numerous  see  Kidder  v.  Fidelity  Ins.  Trust  Co.,  105  Fed. 
821,  44  C.  C.  A.  593  (1901)  ;  Milncr  v.  Meek,  95  U.  S.  252,  24  L.  ed.  44* 
(1877)  ;  Wangerie'n  v.  AsPell,  47  Ohio  St.  250  (1890). 
^'Extract  from  the  opinion  of  the  court. 


KOUNTZE   V.    OMAHA   HOTEL    CO.  84I 

recognizance  was  required  to  stay  execution  in  all  personal  actions  in 
M^hich  a  judgment  was  rendered  upon  a  verdict,  and  in  most  cases 
double  costs  were  given  in  case  the  judgment  was  affirmed;  and  in 
writs  of  error  upon  judgment  after  verdict  in  dower,  and  eject- 
ment it  was  provided  that  execulion  should  not  be  stayed  unless  the 
plaintiff  in  error  should  be  bound  to  tlie  plaintiff,  in  such  reasonable 
sum  as  the  court  below  should  think  fit,  with  condition  that  if  the 
judgment  should  be  affirmed,  or  the  writ  of  error  discontinued, 
in  default  of  the  plaintiff  in  error,  or  he  should  be  nonsuited  therein, 
that  then  he  should  pay  such  costs,  damages,  and  sum  or  sums  of 
money  as  should  be  awarded  upon  or  after  such  judgment  affirmed, 
discontinuance  or  nonsuit ;  and  to  ascertain  the  sum  and  damages  to 
be  awarded,  it  was  provided  that  the  court  should  issue  a  writ 
of  inquiry  as  well  of  the  mesne  profits  as  of  the  damages  by  any 
waste  committed  after  the  first  judgment  in  dower  or  ejectment, 
and  give  judgment  therefor  and  for  costs. "'^  This  w^as  the  form 
in  which  the  law  stood  for  more  than  a  century  prior  to  our  Revo- 
lution, and  is  believed  to  have  generally  prevailed  in  this  country 
either  by  force  of  the  English  statutes,  or  similar  statutes  adopted 
by  the  Colonies  themselves  down  to  the  time  of  the  passage  of  the 
Judiciary  Act  by  Congress  in  1789.  See  i  Rev.  Laws  of  N.  Y. 
(1813),  p.  143,  act  of  1801 ;  Acts  of  New  Jersey,  Feb.  i,  1799, 
and  Feb.  28,  1820,  Elmer's  Dig.  159,  160;  Acts  of  Maryland,  1713, 
ch.  4,  I  Kilty's  Laws;  and  Alexander's  British  Statutes,  in  force 
in  Maryland,  16  and  17  Car.  II,  ch.  8.  In  Virginia,  by  the  act  of 
1788,  it  was  provided  that  before  granting  an  appeal  from  a  county 
to  a  district  court,  or  issuing  any  writ  of  error  or  supersedeas,  the 
party  praying  the  same  should  enter  into  bond  with  sufficient  secur- 
ity, in  the  penalty  to  be  fixed  by  the  court  or  judge,  with  condition 
to  pay  the  amount  of  the  recovery,  and  all  costs  and  damages 
awarded  in  case  the  judgment  or  sentence  should  be  affirmed;  and 
the  damages  were  fixed  at  ten  per  cent,  per  annum  upon  the  princi- 
pal sum  and  costs  recovered  in  the  inferior  court ;  and  the  same  pro- 
visions were  applied  to  appeals,  and  writs  of  error  to  the  court  of 
appeals.  By  the  Act  of  1794,  on  appeal  from  a  decree  in  equity  to 
the  High  Court  of  Chancery,  the  condition  of  the  appeal  bond  re- 
quired was,  to  satisfy  and  pay  the  amount  recovered  in  the  county 
court,  and  all  costs,  and  to  perform  in  all  things  the  decree,  if  the 
same  should  be  affirmed.  Laws  of  Virginia,  ed.  1814,  pp.  87,  115, 
448.  In  Massachusetts,  as  appears  in  an  early  case  (1804),  a 
supersedeas  was  granted  upon  the  plaintiff  In  error  giving  bond  to 
respond  all  damages  and  costs  in  case  the  judgment  should  be  af- 


'"See  Viner's  Abridgment,  Supersedeas  (c)  ;  Hnddy  v.  Gifford,  i  Comyn. 
321  (1720).  For  the  modern  English  practice  see  Rules  of  Supreme  Court, 
Order  LVIII,  rule  16.  Annual  Practice,  1913,  p.  1084.  Hamill  v.  Lilley,  L.  R. 
19  Q.  B.  Div.  83  (1S87).  The  Annot  Lyle,  L.  R.  11  Probate  Div.  114  (1886)  ; 
Merry  v.  Nickalls,  L.  R.  8  Ch.  205  (1873)  ;  Morgan  v.  Elford  (L.  R.),  4  Ch. 
Div.  352  (1876)  ;  Attorney-Gen.  v.  Emerson,  L.  R.  24  Q.  B.  Div.  56  (1889). 
Proceedings  will  not  be  stayed  pending  an  appeal  unless  on  special  grounds. 
Barker  V.  Lavery,  L.  R.  14  Q.  B.  Div.  769  (1885)  ;  Shaw  v.  Holland,  L.  R. 
(1900)  2  Ch.  305. 


8.;j  Arrr.AL  and  error 

firmed.  Bailey  v.  Baxter,  i  Alass.  156.''^  In  Pennsylvania,  where 
the  iiulfniient  was  alTirnied  upon  a  writ  of  error,  the  execution  in- 
chuled  the  interest  from  the  date  of  tlie  original  judgment.  Respab- 
lica  V.  Xicholson,  2  Dall.  (U.  S.)  256.^== 

It  is  thus  seen  that,  in  the  case  of  money  judgments,  bail  in 
error  was  required  to  secure:  i,  the  amount  of  the  original  judg- 
ment; 2,  the  costs  and  damages  occasioned  by  the  delay  of  execu- 
tion. In  tlie  case  of  dower  and  ejectment,  where  the  main  thing  in 
controversy  was  land,  bail  was  required  to  secure  only  such  costs, 
damages,  and  money  as  should  be  awarded  after  affirmance  of  judg- 
ment, for  mesne  profits  and  waste  pending  the  appeal. 

In  relation  to  money  judgments,  a  long  train  of  decisions  in 
England  shows  that  the  damages  for  delay  for  which  the  bail  in 
error  were  to  respond  were  the  interest  on  the  sum  recovered  below 
from  tlie  day  of  signing  final  judgment  to  the  time  of  affirmance, 
and  costs  in  the  writ  of  error,  and  in  some  cases  double  costs.  In 
the  Exchequer  Chamber,  wdien  double  costs  v/ere  recoverable,  the 
court  exercised  its  discretion  whether  to  allow  interest  or  not,  it 
not  being  allowed  as  a  matter  of  course;  but  interest  was  only  al- 
lowed where  the  original  demand  was  one  that  drew  interest,  and 
not  in  cases  of  mere  tort  or  unliquidated  damages.  Tidd,  1182, 
1 183.  In  the  House  of  Lords,  they  gave  large  or  small  costs  in 
their  discretion,  according  to  the  nature  of  the  case,  and  the  reason- 
ableness or  unreasonableness  of  Htigating  the  judgment  of  the  court 
below,  Tidd,  1184. 

We  have  no  reason  to  believe  that  the  rule  of  damages  for  dp- 
lay  on  a  recognizance,  or  bond  in  error,  was  materially  different  in 
this  country,  in  1789,  from  that  which  prevailed  in  England.  The 
statutes  being  substantially  the  same,  undoubtedly  the  same  rule 
prevailed  in  administering  them. 

On  appeals  in  chancery,  the  practice  In  England,  in  case  of  an 
appeal  from  the  IMaster  of  the  Rolls  to  the  Lord  Chancellor  was  for 
the  party  appealing  to  deposit  £10,  to  be  paid  to  the  other  party  if 
the  decree  was  not  materially  varied,  and  he  was  also  required  to 
pay  the  costs  of  the  appeal ;  and  on  appeal  from  the  Court  of  Chan- 
cery to  the  House  of  Lords,  the  appellant  w^as  obliged  to  make  a 
deposit  of  £20,  and  give  security  by  recognizance  in  tlie  sum  of 
£200  to  pay  such  costs  to  the  defendant  in  the  appeal,  as  the  court 
should  appoint,  in  case  the  decree  should  be  affirmed.  Harrison's 
Pr.  in  Chancery,  ed.  Newland,  pp.  342,  349-^^  I"  i^io  these  amounts 
were  doubled.  Smith's  Ch.  Pr.  27,  44.  If  a  party  wished  to  file  a  bill 


*'Tandy  v.  Rowell,  54  N.  H.  384  (i874)-  „,.„,„„  ,      j  s 

*^Scheerer  v.  Grier,  3  Whartonj.4  (1837),  i  Tr.  &  H.  Pr.  (Wharton  s  ed.) 

"Formerly  an  appeal  from  the  court  of  chancery  to  the  House  of  Lords 
stayed  the  proceedings  below,  but  the  practice  was  afterward  modified  by 
permitting  a  stav  by  order  of  the  house  or  the  chancellor.  15  Ves.  Jr.  184 
(1808)  ;  Way  v.  Foy,  18  Ves.  Jr.  452  (1812)  ;  Hart  &  Hoyt  v.  Albany,  3  Paige 
Ch  (N  Y)  381  (1832);  Harris  v.  People,  66  111.  App.  306  (1896);  Penna. 
R.  Co.  V.  National  Docks  R.  Co.,  54  N.  J.  Eq.  647,  35  Atl.  433  (1896)  ;//owy 
V.  McDonald,  109  U.  S.  ISO,  27  L.  ed.  888  (1883)  ;  Ashby  v.  Yetter,  78  N.  J.  Eq. 
173,  78  Atl.  799  (1910). 


CHARTER   V.    PEETER  S43 

of  review,  the  general  rule  was  that  he  must  perform  the  decree 
before  filing  his  bill.  Such  being  the  rules  prevailing  on  the  subject 
when  the  Act  of  1789^'^  was  passed,  which  required  the  plaintiff  in 
error  to  give  security  "to  prosecute  the  writ  of  error  to  effect,  and 
to  answer  all  damages  and  costs  if  he  failed  to  m.ake  his  plea  good," 
the  extremely  general  terms  of  the  law  are  noticeable. ^^ 


CHARTER  V.  PEETER 

Court  of  Queen's  Bench,  1597 

Cro.  EUs.  597 

Fieri  facias  was  awarded  upon  a  judgment  given  in  this  court, 
by  force  whereof  the  sheriff  took  the  defendant's  goods  in  execution ; 
and  before  sale,  the  record  was  removed  by  a  writ  of  error  into  the 
exchequer  chamber,  and  a  supersedeas  awarded.  And  the  sheriff 
returned  upon  the  fieri  facias  a  seizure  of  the  goods,  and  that  they 
remained  in  his  hands  pro  defectu  emptorum;  and  he  also  returned, 


**Act  of  Congress,  September  24,  1789,  di.  20,  i  Stat,  at  Large  84.  See, 
in  amended  form,  U.  S.  Comp.  Stat.  (1913),  §  1660,  and,  as  to  supersedeas, 
U.  S.  Comp.  Stat.  (1913),  §  1666.  Ex  parte  Milwaukee  R.  Co.,  S  Wall.  (U.  S.) 
iSS,  18  L.  ed.  676  (1866)  ;  Title  Guaranty  Co.  v.  General  Electric  Co.,  222  U.  S. 
401,  56  L.  ed.  24S  (1912). 

^"At  common  law  a  writ  of  error  operated  as  a  supersedeas  of  its  own 
force.  Bishop  of  Ossory's  Case,  Cro.  Jac.  534  (1620)  ;  Bentley  v.  Fozvler, 
8  Ark.  375  (1848);  Ambrose  v.  Weed,  11  111.  4S8  (1850);  Pettyjohn  v. 
Bloxom,  I  Houst.  (Del.)  594  (1858)  ;  Hudson  v.  Smith,  9  Wis.  122  (1859)  ; 
Central  Branch  Union  Pacific  R.  Co.  v.  Andrews,  34  Kans.  563,  9  Pac.  213 
{1886);  First  Nat.  Bank  v.  McAndrezvs,  7  Mont.  434,  17  Pac.  554  (1888); 
State  ex  rel.  EI 0 pan  v.  District  Court,  25  Okla.  871,  108  Pac.  375  (1910).  In  the 
United  States  the  subject  is  now  generally  regulated  by  statute,  but  the 
vicAV  that  generally  prevails  is  that  a  writ  of  error  or  appeal  does  not  of 
itself  act  as  a  supersedeas,  the  statutory  requirements  must  be  fulfilled. 
Railroad  Co.  v.  Harris,  74  U.  S.  574,  19  L.  ed.  100  (18&8)  ;  Boise  Co.  v.  Gor- 
man, 86  U.  S.  661,  21  L.  ed.  226  (1873)  ;  Eakle  v.  Smith,  24  Md.  339  (1865)  ; 
Home  Fire  Ins.  Co.  v.  Dutchcr,  48  Nebr.  755,  67  IT.  W.  766  (1896)  ;  Allen  v. 
Church,  loi  Iowa  1 16,  70  N.  W.  127  (1897)  ;  Lancaster  v.  Snow,  184  111.  163, 
56  N.  E.  416  (1900)  ;  l^argo y^,Pcnna.-.R.^£Q..,.2i2jP?i.  468,  62  Atl.  1081,  no 
Am.  St.  559  (igoGX  See  further  Cal.  Code  Civ.  Pro.,  §§  942,  946;  Mass.  Rev. 
Laws  (1902),  p.  1679,  §  6;  N.  Y.  Code  Civ.  Pro.,  §§  1310-14;  N.  j.  Comp.  Stats. 
(1910),  p.  450,  §  I  IT,  p.  2016,  §  213a;  Pa,_Act_Df-^Ma3^JtSul8QL  P-  L.  67, 
§§  6-iS,  I  P.  &  L.  Dig.  (2d  ed.)  308;  Hoon  v.  M//rr^  16  Pa.  J)ist.  R^03 
(1006).  A  general  requirement  is  that  security  be  entered.  Lane  v.  Bacaius, 
2  T.  R.  44  (1787)  ;  Catlctt  v.  Brndie,  9  Wheat.  (U.  S.)  553,  6  L.  ed.  158 
(1824)  ;  Ferris  v.  Douglas,  20  Wend.  (N.  Y.)  626  (1839)  ;  Branigan  v.  Rose, 
8  111.  (3  Gilm.)  123  (1846)  ;  Stafford  v.  Union  Bank  of  Louisiana,  58  U.  S. 
275,  15  L.  ed.  505  (1854)  ;  Ex  parte  Sivceny,  131  Ind.  81,  30  N.  E.  884  (1801)  ; 
Creighton  v.  Keith,  50  Nebr.  810,  70  N.  W.  406  (1897)  ;  Harrison  v.  Stebbins, 
104  Iowa  462,  73  N.  W.  1034  (1898)  ;  Smead  v.  Stuart,  194  Pa.  St.  578,  45  Atl. 
343  (1900)  ;  Shockv.  Solar  Gas  L^Cq.,  17  Pa.._StriI_R:i6L.  09087;  Hohen- 
adcl  V.  Steel e/23fT\t':z2i^~86^W."E.  717  (1908)  ;  Thomas  v.  Lee,  74  Wash.  286, 
133  Pac.  446  (1913)  ;  Mundy  v.  Irwin,  19  N.  Mex.  170,  141  Pac.  877  (1914). 


S-}4  Arri'.AT.  Axn  trkor 

that  a  supersedeas  was  awardctl,  etc.  i\ml  liereupon  it  was  prayed 
f<">r  the  defendant,  that  he  mij^ht  have  restitution  of  his  g^oods.  But 
all  the  court  held,  although  this  record  be  removed,  and  notwith- 
standing the  suj^ersedeas  awarded,  in  regard  it  came  not  unto  the 
shcrift'  until  he  had  liegun  to  make  execution,  as  ajijjcars  by  his  re- 
turn, that  a  venditioni  exponas  shall  be  awarded  to  i)crfect  it;  and 
although  the  ]ilea  roll  be  removed,  yet  it  shall  be  awarded  upon  the 
return  of  the  fieri  facias,  which  remains  filed  in  the  office.  And  so 
it  was  likewise  done  in  the  case  of  Sir  Miles  Corbet  v.  Rookzvood, 
Trinity  term,  39  Eliz.  Roll  406,  in  this  court;  although  tlie  record 
was  there  removed  by  a  writ  of  error.^*^ 


RAXSO^I  V.  riERRE 

Circuit  Court  of  Appeals  of  U.  S.,  Eighth  Circuit,  1900 

10 1  Fed.  665 

On  September  28,  1896,  James  J.  Ransom  began  an  action  in 
the  South  Dakota  Circuit  Court  by  mandamus  against  the  treasurer 
of  the  city  of  Pierre,  to  compel  him  to  apply  funds  in  his  hands  to 
the  payment  of  coupons  of  certain  bonds  of  the  city.  There  was  a 
trial ;  the  court  found  that  the  coupons  were  illegal  and  entered 
judgment  dismissing  the  proceedings.    From  this  judgment  Ran- 


"'Accord:  Milton  v.  Eldrlngton,  I  Dyer  99  (1554);  Anon.,  Afoore  542 
Ci?97")  ;  Tocock  v.  Honyvian,  Yelv.  6  (1601)  ;  Baker  v.  Bulstrodc,  i  Vent. 
(K.  B.)  255  (1673);  Mcriton  V.  Stevens,  Willcs,  271  (1741)  ;  Doe  ex  dent. 
Mcssiter  v.  Dynelcy,  4  Taunt.  289  (1812)  ;  Blanchard  V.  Myers,  9  Johns.  (N. 
Y.)  66  (1812)  ;  Kinnle  v.  IVhitford,  17  Johns.  (N.  Y.)  34  (1S19)  ;  Beatty  v. 
Chapline,  2  H.  &  J.  (Md.)  7  (1806)  ;  Blunt  v.  Greenwood,  I  Cow.  (N.  Y.)  15 
(1823)  ;  Arnold  v.  Fuller,  i  Ohio  4^8  (1824)  ;  Boyle  v.  Zacharle,  6  Pet.  (U.  S.) 
648,  8  L.  ed.  532  (1832);  Stezvart  V.  Siiiilh_,  j /PhUa.  (Pa)  171  (1851); 
Cilr.wur  v.  Hall,  10  U.  C.  O.  B.  SoTn^^sTT^J'tT^^w^'^^^wrvr'/^Yrr/r,  6  W.  N. 
C.  (Pa.)  2^4  (1878)  ;  Neiier  v.  Schnlkcn.  K  Kulp  (Pa.)  l^^  (1888)  ;  RaniLy. 
Long.  6  Kub  (PaJ^2Q9  (1801)  ;  Taylor  v.  Brcisch,  8  Pa.  £■  C^M.  (18S9)  ; 
fetcrson  v.  Wayne  C.  J.,  108  Mich.  608,  66 ~^  W.  487  (1896);  Snyder  v. 
Po'ivell,  133  111.  App.  393  (1907).  Otherwise  where  the  appeal  precedes  the 
lew.  BryoiL  V.  Comlw  2  Aliles  (Pa.)  271  (183S);  Adanis  V.  llindman, 
2_MilesTPaT454Ti842)  :  MxDonalTVnTrfford.  i  BrewsC  (Pa.)  278  ( i8551 . 
It  Tias,  however,  been  frequently  held  that  the  coiirt~in  its  discretion,  and  in 
the  exercise  of  its  equitable  control  over  its  own  process,  may  recall  or  stay 
the  proceedings  for  a  sale  pending  the  appeal.  Strieker  v.  Wakeman,  13  Abb. 
Pr.  (N.  Y.)  85  (1861);  Bailey  v.  Baxter,  I  Mass.  156  (1804);  Sa\re  v. 
Reynolds,  5  N.  J.  L.  564  (1819)  ;  Basscit  v.  Daniels,  10  Oliio  St.  617  (1858)  ; 
Ru'cker  v.  Harrison,  6  Munf.  (Va.)  181  (1818)  ;  Burr  v.  Bu.rr,  10  Paige 
(X.  Y.)  166  (1843);  First  Nat.  Bank  V.  Rogers,  13  Minn.  (Gil.  376)  407, 
97  Am.  Dec.  239  (1868);  Cook  v.  Dickerson,  i  Duer  (N.  Y.)  679  (1853); 
Robertson  v.  Davidson,  14  INIinn.  (Gil.  422)  554  (1869)  ;  Burrall  V.  Vandcrbilt, 
I  Bosw.  637,  14  N.  Y.  Super.  Ct.,  6  Abb.  Prac.  70  (1858)  ;  MeCamy  v.  Lawson, 
JO  Tenn.  (3  Head.)  256  (1859)  ;  Ewing  v.  Jacobs,  49  Cal.  72  (1874)  ;  Bent  ley 
V.  Jones,  8  Ore.  47  (1879)  ;  Janesville  v.  Janesville  Water  Co.,  89  Wis.  159, 
61  X.  W.  770  (1895)  ;  Tilley  v.  Washburn,  91  Wis.  105,  64  N.  W.  312  (1895)  ; 
Parker  v.  Trovers,  69  Atl.  "(N.  J.)  306  (1907)  ;  Anderson  V.  Phcglcy,  54  Ore. 
K-2,  102  Pac.  603  (1909). 


RANSOM    V.    PIERRE  845 

som,  on  June  29,  1897,  appealed  to  tlie  Supreme  Court  of  South  Da- 
kota, giving  a  supersedeas  bond.  On  February  23,  1898,  while  the 
appeal  in  the  before-mentioned  suit  was  pending  and  undetermined. 
Ransom  brought  this  action  against  the  city  of  Pierre  in  the  Circuit 
Court  of  the  United  States.  The  city,  among  other  defenses,  pleaded 
the  judgment  in  the  mandam.us  proceeding  in  the  state  court  as  a 
bar  to  recovery.  This  defense  was  sustained  and  judgment  ren- 
dered dismissing  the  complaint.  The  plaintiff  then  brought  error. 
At  the  time  of  argument  in  the  circuit  court  of  appeals,  the  appeal 
to  the  Supreme  Court  of  Dakota  was  undetermined,  but  on  March 
2,  1900,  the  judgment  was  reversed."^ 

Thayer,  J.:  On  the  argument  of  this  cause  it  was  urged  on 
behalf  of  the  plaintiff  in  error  that  the  trial  court  erred  in  holding 
that  the  judgment  in  the  mandamus  proceeding  was  conclusive  as 
respects  the  validity  of  the  bonds  in  controversy ;  first,  because  sec- 
tion 5343  of  the  Compiled  Laws  of  Dakota  of  1887  declares  that 
"an  action  is  deemed  to  be  pending  from  the  time  of  its  commence- 
ment until  its  final  determination  upon  appeal,  or  until  the  time  for 
appeal  has  passed,  unless  the  judgment  be  sooner  satisfied." 

The  first  contention  of  the  plaintiff  in  error,  stated  above,  pre- 
sents a  question  of  difficulty.  In  many  cases  the  question  has  been 
mooted  whether,  when  a  writ  of  error  has  been  sued  out,  or  when 
an  appeal  has  been  taken  which  operates  essentially  as  a  writ  of 
error,  to  review  a  judgment  at  nisi  prius,  and  a  supersedeas  bond 
has  been  given  to  stay  the  proceedings,  such  a  judgment  may  be  re- 
ceived in  evidence  in  another  suit  between  the  same  parties  in  sup- 
port of  the  pleas  of  res  judicata;  and,  while  the  decisions  upon  this 
cjuestion  have  not  been  uniform,  yet,  in  our  judgment,  the  weight  of 
judicial  opinion,  as  well  as  sound  reason,  is  that,  when  a  case  which 
is  removed  to  an  appellate  court  by  a  writ  of  error  or  an  appeal  is 
not  there  tried  de  novo,  but  the  record  made  below  is  simply  re- 
examined, and  the  judgment  either  reversed  or  affirmed,  such  an 
appeal  or  writ  of  error  does  not  vacate  the  judgment  below  or  pre- 
vent it  from  being  pleaded  and  given  in  evidence  as  an  estoppel  upon 
issues  which  were  tried  and  determined,  unless  some  local  statute 
provides  that  it  shall  not  be  so  used  pending  the  appeal.  A  super- 
sedeas bond  merely  operates  to  stay  an  execution  or  other  final 
process  on  the  judgment.  It  does  not  vacate  the  judgment  nor  pre- 
vent either  party  thereto  from  invoking  it  as  an  estoppel."^ 

It  is  insisted,  however,  as  before  stated,  that  the  statute  of 
South  Dakota  quoted  above  was  intended  to  prevent  a  judgment 
from  being  pleaded  as  an  estoppel  during  the  pendency  of  an  ap- 

"The  facts  are  condensed  and  part  of  the  opinion  omitted. 

'"Citing  Railway  Co.  v.  Twombly,  100  U.  S.  78,  25  L.  ed.  550  (1879) 
Willard  v.  Ostrandcr,  51  Kans.  481,  32  Pac.  1092,  37  Km.  St.  294  (1893) 
Parkhurst  v.  Berdcll,  no  N.  Y.  386,  18  N.  E.  123,  6  Am.  St.  384  (1888). 
Scheible  v.  Single,  89  Ind.  323  (1883)  ;  Faber  v.  Hovcy,  117  Mass.  107,  19  Am 
Rep.  398  (1875);  Thompson  v.  Griffin,  69  Tex.  139,  6  S.  W.  410  (1887); 
Moore  v.  Williams,  132  111.  589,  24  N.  E.  619,  22  Am.  St.  563  (1890)  ;  Bank  of 
N.  America  v.  Wheeler,  28  Conn.  433,  73  Am.  Dec.  683  (1859)  ;  Orcgonian 
R.  Co.  v.  Oregon  R.  &  N.  Co.,  27  Fed.  277  (1886)  ;  Cloiid  v.  Wiley,  29  Ark.  80 
(1874)  ;  Cain  v.  Williams,  i-6  Ncv.  429  (1882). 


8_;6  Arri-.Ai.  a>.d  f.kror 

peal,  and  that  view  of  the  elYcct  of  the  statute  is  supported  by  cer- 
tain CaUfornia  decisions,  in  which  state  a  similar  statute  has  been 
enacted.  Xaftcgcr  v.  Gregg,  99  Cal.  83;  In  re  Blytltc,  99  Cal.  472; 
Story  V.  Commercial  Co.,  100  Cal.  41.  On  the  other  hand,  in  the 
state  of  Orci^on,  where  substantially  the  same  statute  is  in  force,  it 
is  held  that  the  statute  was  not  designed  to  i)revent  a  judgment  from 
being  pleaded  in  bar  of  another  suit  on  tlie  same  cause  of  action 
during  tlie  pendency  of  an  appeal  from  th.e  judgment.  Day  v.  Hol- 
land, 15  Ore.  464.  The  statute  now  under  consideration  was  en- 
acted in  the  Dakotas  before  it  was  enacted  in  California,  so  that  it 
can  not  be  said  that  the  California  doctrine  became  the  law  of  the 
territory  of  Dakota  by  adoption.  The  decisions  in  California  and 
Oregon  are  merely  persuasive  authority.  While  the  Supreme  Court 
of  the  state  of  South  Dakota  has  never  as  yet  placed  an  authorita- 
tive construction  upon  the  statute  in  case  where  a  judgment  that 
had  been  obtained  in  a  civil  action  was  pleaded  in  bar  to  another 
suit  between  the  same  parties  during  the  pendency  of  an  appeal 
from  tlie  judgment,  yet  it  has  held,  notwithstanding  the  statute  in 
question,  that  a  judgment  in  a  criminal  case  may  be  given  in  evi- 
dence in  another  case  as  conclusive  evidence  of  a  conviction  for  a 
crime,  during  the  pendency  of  an  appeal  from  the  judgment.  In 
re  Kirby,  10  S.  Dak.  322. 

In  this  state  of  the  authorities  and  upon  an  independent  con- 
sideration of  the  question  we  have  reached  the  conclusion  that  the 
Dakota  statute  to  which  the  discussion  relates  v\^as  not  intended  to 
prevent  a  final  judgment  of  one  of  its  courts  of  superior  jurisdic- 
tion from  being  pleaded  in  bar  to  another  suit  between  tlie  same 
parties  and  upon  the  same  cause  of  action  during  the  pendency  of 
an  appeal  therefrom,  but  that  its  purpose  was  to  affect  purchasers 
of  property  which  is  in  litigation  with  notice  of  the  litigation  until 
the  litigation  is  ended.  It  is  well  known  that  courts  have  at  times 
disagreed  as  to  whether  one  who  purchases  property  which  is  in 
litigation  intermediate  a  judgment  at  nisi  prius  and  the  expiration 
of  the  time  limited  for  suing  put  a  writ  of  error  or  taking  an 
appeal  should  be  regarded  as  a  bona  fide  purchaser,  or  as  affected 
with  notice  by  lis  pendens  if  an  appeal  is  subsequently  taken.  Some 
courts  have  answered  this  question  in  the  affirmative,  others  in 
the  negative.'^  We  accordingly  incline  to  the  view  that  the  statute 
was  intended  to  settle  this  debatable  point  in  South  Dakota  by  say- 
ing, in  effect,  that  one  who  purchases  property  after  a  judgment,  but 
prior  to  the  expiration  of  the  time  limited  for  an  appeal,  shall  be 
deemed  a  purchaser  pendente  lite.  In  the  absence  of  the  statute 
aforesaid  the  suing  out  of  a  writ  of  error  or  the  taking  of  an  appeal 
might  be  regarded  as  the  institution  of  a  new  suit,  and  as  having 


"Citing  Rector  v.  Fitzgerald,  ^g  Fed.  808,  8  C.  C.  A.  277  ( 1894)  ;  Taylor 
V.  Boyd,  3  Ohio  338  (1827)  ;  fJdridge  v.  Walker,  80  111.  270  (1876)  ;  Mackhn 
V.  Allenhcrg,  ioo'Mo.  2,37,  U  S.  W.  350  (1889)  ;  Pierce  v.  Stindc,  11  Mo.  App. 
364  (1881)  ;  McCormick  v.  McClnre,  6  Blackf.  (Ind.)  466,  39  Am.  Dec.  441 
(1842)  ;  Dchell  v.  Foxii'nrthv,  9  B.  Mon.  (Ky.)  228  (1849)  ;  Harle  v.  Langdon 
Heirs,  60  Tex.  555  (1883)  ;  Marks  v.  Cowles,  61  Ala.  299  (1878).  See  Uni£ 
V.  Lamjdiuih,  12  Pa.  St.  344  (1849)  ;  Leo_nai:dLsuiPpeai^4  Pa.  St.  180  (1880). 


RANSOM    V.    PIERRE  847 

no  effect  on  a  title  acquired  before  an  appeal  was  taken.  In  our 
judgment,  the  statute  was  not  designed  to  have  any  other  force  and 
effect  than  that  last  stated.  It  can  hardly  be  supposed  that  it  was 
intended  to  encourage  litigants  to  bring  repeated  suits  to  settle  the 
same  controversy,  and  it  ought  not  to  be  given  an  erroneous  inter- 
pretation because  by  so  doing  the  ends  of  justice  would  perhaps  be 
subserved  in  the  present  instance.^" 

In  view,  however,  of  the  recent  decision  by  the  Supreme  Court 
of  South  Dakota,  the  substance  of  which  has  been  heretofore  stated, 
the  question  to  be  decided  at  this  time  is  not  In  all  respects  the  same 
as  the  one  which  was  discussed  on  the  trial  below  and  at  the  hearing 
in  this  court.  Assuming,  in  view  of  what  has  already  been  said, 
that  the  judgment  in  the  mandamus  suit  was  pleadable  in  bar,  and 
determinative  of  the  plaintiff's  rights  in  the  case  now  in  hand  so 


*° Accord:  Doe  v.  Wright,  10  Ad.  &  El.  763  (1839);  Nxll  v.  Comparet 
16  Ind.  107,  79  Am.  Dec.  411  (1861)  ;  Merrclls  v.  Phelps,  34  Conn.  109  (1867) 
Sage  V.  Har  dp  ending,  49  Barb.  (N.  Y.)  166,  34  How.  Pr.  (N.  Y.)  i  (1867) 
Cloud  V.  Wiley,  29  Ark.  80  (1874),  semble;  Woodward  v^jC_arson,  86  Pa.  St 
176  (1878)  ;  Buchanan  v.  Logansporf.  C.  &  STlV.  R.  Co.,  71  Tnd.  265  (1880) 
Cain  v.  Winia'.ns,  16  Nev.  426  (1882)  ;  Schelhle  v.  Slagle,  89  Ind.  323  (1883) 
Burgess  v.  Poole,  45  Ark.  2>7i  (1885)  ;  IVnndivnrd  v  Carey.  42  L.  I.  (Pa.) 
490  (1885)  ;  Parkhiirst  v.  BerdcU,  no  N.  Y.  386,  18  N.  E.  123,  6  Am.  St.  384 
(1888);  Dav  v.  Holland,  15  Ore.  464,  15  Pac.  855  (1887);  SmM's  Appeal, 
15  Atl.  (Pa  )  807  (1S88)  ;  Moore  v.  Williams,  132  111.  59i,  24  K  ET  '^17 
(jSgoJT'Smith  v.  Schreiner,  86  Wis.  19,  56  N.  W.  160,  39  Am.  St.  869  (1893) 
Willard  v.  Ostrander,  51  Kans.  481,  32  Pac.  1092,  2>7  Am.  St.  294  (1893) 
Watson  V.  Richardson,  no  Iowa  608,  80  N.  W.  416,  80  Am.  St.  331  (1899) 
People  V.  Rickert,  159  111.  496,  42  N.  E.  884  (1896)  ;  Crclghton  v.  Keith,  50 
Nebr.  810,  70  N.  W.  406  (1897)  ;  SiilUvan  v.  Rlngler,  69  App.  DIv.  388,  74  N.  Y. 
S.  978  (1902)  ;  Reese  v.  Damato,  44  Fla.  692,  33  So.  6-12  (1902)  ;  United  States 
ex  rel.  Coffman  v.  Norfolk  &  W.  R.  Co.,  114  Fed.  682  (1902)  ;  Messlnger  v. 
Anderson,  171  Fed.  783  (1909).  So,  also,  in  the  case  of  foreign  judgments. 
Bank  of  N.  America  v.  Wheeler,  28  Conn.  433,  7:^  Am.  Dec.  683  (1859)  ; 
Suydam  v.  Hoyt,  25  N.  J.  L.  230  (1855)  ;  Merchants'  Ins.  Co.  v.  De  Wolf, 
33  Pa  St  4.i.  7^  Am.  Dec.  577  (1859);  ^cott  v.  PUkington,  2  ±5.  &  S.  11 
(i«62)  ;  Cherry  \.  Speight,  28  Tex.  503  (1866)  ;  Rogers  v.  Hatch,  8  Nev.  35 
(1872);  Faher  v.  Hovey,  117  Mass.  107,  19  Am.  Rep.  398  (1875)  ;  Paine  v. 
Schenectady  Ins.  Co.,  Ii  R.  I.  411  (1876).  Otherwise  where  the  record  is 
removed  from  an  inferior  court  for  retrial.  Campbell  v.  Howard,  5  Mass.  376 
(1809)  ;  Boltings  v.  Flrhy,  9  B.  &  C.  762  (1829)  ;  Boynton  v.  Dyer,  18  Pick. 
(Mass.)  I  (1836)  ;  Sovter  v.  Bavmore,  7  Pa.  St.  41^^,  47  Am.  Dec.  518  (1847)  ; 
Small  V.  Hasklns,  26  Vt.  209  (1854)  ;  O'Donncll  v.  Mullin,  27  Pa.  St.  199,  67 
Am.  Dec.  458  (1856)  ;  De  Camp  v.  Miller,  44  N.  J.  L.  617  (1882)  ;  Tommey  v. 
Finney,  45  Ga.  155  (1872)  ;  Day  v.  DeYonge,  66  Mich.  550,  33  N.  W.  527 
(1887)  ;  Bryar  v.  Campbell,  177  U.  S.  649,  44  L.  ed.  926  (iQoo)  ;  Tyndale  v. 
Stanwood,  186  Mass.  59,  71  N.  E.  83  (1904).  Contra:  Stalblrd  v.  Seattle, 
36  N.  H.  455,  72  Am.  Dec.  317  (1858)  ;  Byrne  v.  Prathcr,  14  La.  Ann.  653 
(1859)  ;  Glenn  v.  Brush,  3  Colo.  26  (1876)  ;  Haynes  v.  Ordway,  52  N.  H.  284 
(1870)  ;  Ketchum  v.  Thatcher,  12  Mo.  App.  i8^  (1882)  ;  Green  v.  U.  S.,  18  Ct. 
of  CI.  (U.  S.)  93  (1883)  ;  Sharon  v.  Hill,  26  Fed.  Z2>7  (1885)  ;_  Texas  Trunk 
R.  Co.  v.  Jackson,  85  Tex.  605,  22  S.  W.  1030  (1893)),  overruling  Thompson 
V.  Griffin,  69  Tex.  139,  6  S.  W.  410  (1807)  ;  Cunningham  v.  Holt,  12  Tex.  Civ. 
App.  150,  :^2  S.  W.  981  (1806);  Purser  v.  Cady,  120  Cal.  214,  52  Pac.  489 
(i8g8)  ;  Hershey  v.  Meeker  County  Bank,  71  Minn.  255,  73  N.  W.  967  (1898), 
semble;  Southern  R.  Co.  v.  Brigman,  95  Tenn.  624,  32  S.  W.  762  (1895); 
Drlk  V.  Yelton,  103  Tenn.  476,  53  S.  W.  729  (1899)  ;  Eastern  Building  & 
Loan  Assn.  v.  Welling,  103  Fed.  552  (1909  S.  Car.)  ;  S^nith  v.  Smith,  134  Cal. 
117,  66  Pac.  81  (1901)  ;  Boucher  v.  Barsalou,  27  Mont.  99,  69  Pac.  555  (1902). 


S.}S  AITKAL    AND    F.?.ROR 

lonj;  as  that  juclgincnt  %vas  unreversed  we  are  nevertheless  con- 
fronted with  the  inquiry  whether  it  should  be  given  that  eltcct  when 
it  is  shown  by  a  duly  ccrtiiied  copy  of  the  opinion  of  the  Supreme 
Court  of  South  Dakota  that  the  judgment  in  question  has  been  va- 
cated and  aniuillcd  for  error.   As  a  general  proi)osilion,  it  is  doubt- 
less true  that  an  appellate  court  is  reciuircd  to  determine  whether  a 
iudgmcnt  which  is  challenged  by  a  writ  of  error  is  erroneous  upon 
the  facts  disclosed  by  the  record,  and  upon  the  facts  as  they  existed 
when  tlie  judgment  was  rendered.    But,  inasmuch  as  all  rules  of 
procedure  are  intended  to  secure  the  administration  of  justice  in  an 
orderly  manner,  it  does  not  seem  reasonable  that  a  rule  of  procedure 
should  be  observed  when  it  is  apparent  that  a  strict  adherence  thereto 
will  work  an  injustice.    When  an  appellate  court  has  the  power  to 
vacate  a  judgment  rendered  by  a  nisi  prius  court,  oyer  whose  pro- 
ceedings it  exercises  supervision  and  control,  and  its  attention  is 
called  in  an  authentic  manner  to   something  that  has   transpired 
since  the  trial,  which  renders  it  inequitable  to  permit  the  judgment 
to  be  carried  into  effect,  we  think  that  it  may  lawfully  exercise  its 
power  to  annul  the  judgment  and  remit  the  record  to  the  lower 
court  for  such  further  proceedings  as  may  be  necessary.    It  is  es- 
sential, of  course,  that  there  should  be  a  general  observance  of  rules 
of  procedure,  but  compliance  with  a  particular  rule  ought  not  to  be 
required  when  a  literal  compliance  therewith  would  dcfeat,_  rather 
than  promote,  the  real  ends  of  justice.  As  a  general  proposition,  the 
rights  of  tlie  parties  to  a  suit  are  to  be  determined  upon  the  facts  as 
they  exist  when  the  action  is  commenced,  or  at  least  when  the  is- 
sues have  been  formulated  by  pleadings.    Nevertheless,  the  common 
law  has  always  permitted  a  defendant  to  take  advantage  oi  a.  defense 
growing  out  of  what  subsequently  transpires  by  a  plea  puis  darrein 
continuance.    Andrews,   Stcph.    PI.   par.   77,   Chit.   PI.    (16th  Am. 
Ed.),  pp.  689,  690.    In  the  state  of  New  York,  where  the  doctrine 
prevails  that  the  taking  of  an  appeal  from  a  judgment  does  not 
prevent  the  judgment  from  being  pleaded,  in  bar  to  another  action 
between  the  same  parties,  it  is  held  that  if,  after  a  judgment  has 
been  successfully  pleaded  in  the  second  suit,  it  is  reversed  on  ap- 
])eal,  the  judgment  in  the  second  action  may  be  set  aside  by  the 
trial  court  for  that  reason,  although  no  error  was  committed  on  the 
trial.  Parkhurst  v.  Berdell,  no  N.  Y.  386.   In  the  case  of  Humph- 
reys V.  Lcggett,  9  How.  (U.  S.)  297  (see  also  Leggetf  v.  Humph- 
reys, 21  How.  (U.  S.)  66),  the  facts  appear  to  have  been  that,  while 
a  writ  of  error  was  pending  in  the  Supreme  Court  of  the  United 
States  to  reverse  a  judgment  in  favor  of  a  surety  on  a  sheriff's  bond, 
the  whole  penalty  of  the  bond  was  collected  of  the  surety  under  a 
judgment  regularly  obtained  in  a  state  court.   The  Supreme  Court 
of  the  United  States  reversed  the  judgment  in  favor  of  the  surety, 
and  sent  down  its  mandate  directing  the  entry  of  a  judgment  against 
the  surety  for  a  specified  sum.   The  surety  thereupon  pleaded  puis 
darrein  continuance  the  payment  of  the  full  penalty  of  the  bond  in 
obedience  to  the  judgment  of  the  state  court,  but  the  trial  court 
disallowed  the  plea,  and  entered  judgment  according  to  the  mandate. 


RANSOM    Z'.    PIERRE  849 

The  surety  then  filed  a  bill  to  restrain  the  enforcement  of  the  latter 
judgment,  and  it  was  held  that  he  was  entitled  to  the  relief  prayed 
for,  inasmuch  as  the  surety  had  been  guilty  of  no  laches,  and  it 
would  be  inequitable  to  permit  an  amount  in  excess  of  the  penalty 
of  the  bond  to  be  collected  from  him.  Under  the  doctrine  enunci- 
ated in  that  case  it  would  seem  that,  if  this  court  should  affirm  the 
judgment  below  on  the  ground  that  it  can  not  take  cognizance  of  the 
recent  decision  of  the  Supreme  Court  of  the  state  of  South  Dakota, 
equitable  relief  might  be  afforded  against  the  judgment.  But,  even 
if  such  relief  might  be  obtained,  why  should  this  court  affirm  the 
judgment,  and  compel  the  institution  of  a  new  suit,  when  it  is  ad- 
vised in  an  authentic  manner  that  the  judgment  which  served  to 
prevent  the  plaintiff'  from  recovering  below  was  an  erroneous  judg- 
ment, and  that  the  same  has  been  finally  vacated  and  annulled  ?  The 
trial  court  could  have  granted  a  new  trial  because  of  the  reversal  of 
the  judgment,  although  its  record  disclosed  no  error,  and  it  seems 
reasonable  that  this  court  should  exercise  a  similar  discretionary 
power  so  long  as  it  retains  control  over  the  judgment,  and  a  fact 
has  been  brought  to  its  attention  concerning  which  there  can  be  no 
dispute.  We  can  not  say  that  the  existing  complications  are  due  to 
any  fault  or  laches  of  the  plaintiff  in  error.  When  he  brought  the 
action  he  was  doubtless  advised  by  counsel  that  the  judgment  in 
the  mandamus  case  could  not  be  pleaded  in  bar,  in  view  of  the  appeal 
therefrom  and  the  provisions  of  the  Dakota  statute.  The  construc- 
tion that  had  been  placed  on  that  statute  by  the  courts  of  California 
give  great  weight  to  this  view,  and,  while  we  are  constrained  to  hold 
that  the  view  was  erroneous,  yet  we  are  not  prepared  to  decide 
that  the  plaintiff  should  be  compelled  to  sustain  a  great  loss  because 
he  has  been  guilty  of  no  other  fault  tlian  the  bringing  of  an  action 
based  upon  a  mistaken  view  of  the  law.  The  trial  court  might  have 
continued  the  case  in  hand  of  its  own  motion  until  the  mandamus 
case  was  decided,  and  we  think  that  such  action  ought  to  have 
been  taken.  That  course,  however,  was  not  pursued,  and  it  is  the 
duty  of  this  court,  which  still  retains  control  of  the  judgment  to 
take  such  action  as  will  shorten  the  litigation,  preserve  the  rights 
of  both  parties,  and  best  subserve  the  end  of  justice.  In  view 
of  v/hat  "has  been  said,  we  conclude  tliat  we  have  the  power  and  that 
it  is  our  duty  to  reverse  the  judgment  below,  and  remand  the  cause 
for  a  new  trial.  The  judgment  in  the  mandamus  case  has  been  re- 
versed, and  the  cause  remanded  for  a  new  trial,  and,  if  this  court 
makes  a  similar  order,  it  will  be  optional  with  tlie  plaintiff  to  prose- 
cute either  one  of  the  suits  and  dismiss  the  other,  and  by  so  doing 
avoid  further  complications  growing  out  of  the  pendency  of  suits 
upon  the  same  cause  of  action  in  two  courts  of  coordinate  jurisdic- 
tion. The  judgment  below  is  therefore  reversed,  and  the  cause  re- 
manded for  a  new  trial .^^ 


"At  common  law  a  writ  of  error  was  no  bar  to  an  action  based  on  the 
judgment.  Y.  B.  4  Hen.  VI  31;  Y.  B.  18  Edw.  14,  6;  Anon.,  Dyer,  32,  pi.  5; 
Adams  w.  Tomlinson,  I  T.  Raym.  100,  i  Sid.  236  (1676)  ;  Dighton  v.  Granvil, 
4  Mod.  247  (1694)  ;  Anonymous,  11  Mod.  78  (1707)  ;  Donford  v.  Ellys,  12 

54 — Crv.  Proc. 


S50  APPEAL   AXD   ERROR 

SECTION  4.    EXCEPTIONS  AND  RECORD 

STAT.  WESTAI.  II,  CH.  31 

13  Echv.  I  (1285) 

When  one  that  is  impleaded  before  any  of  the  justices  doth 
allcg^e  an  exception,  praying  that  the  justices  will  allow  it,  which 
if  they  will  not  follow,  if  he  that  alleged  the  exception  do  write  the 
same  exception,  and  require  that  the  justices  Avill  put  their  seals 
for  a  witness,  the  justices  shall  so  do;  and  if  one  v.ill  not,  another 
of  the  company  shall.  And  if  the  King,  upon  complaint  made  of  the 
justices,  cause  the  record  to  come  before  him,  and  the  same  excep- 
tion be  not  found  in  the  roll,  and  the  plaintiff  show  the  exception 
v.Titten,  with  the  seal  of  a  justice  put  thereto,  the  justice  shall  be 
commanded  that  he  appear  at  a  certain  day,  either  to  confess  or 
deny  his  seal,  and  if  the  justice  can  not  deny  his  seal,  they  shall 
proceed  to  judgment  according  to  the  same  exception,  as  it  ought 
to  be  allowed  or  disallowed.'*- 


WRIGHT  V.  SHARP 

Court  of  Queen's  Bench,  1708 
I  Salk.  28S 

A  corporation  book  was  offered  in  evidence  at  the  assizes  to 
prove  a  member  of  the  corporation  not  in  possession,  and  refused. 
No  bill  of  exceptions  was  then  tendered,  nor  were  the  exceptions 
reduced  to  writing;  so  the  trial  proceeded,  and  a  verdict  was  given 


!Mod.  138  (1698).  But  it  was  sometimes  allowed  to  be  pleaded  in  abatement. 
Rogers  v.  Mayhoe,  Carth.  I  (1687)  ;  Aby  v.  Brixton,  Carth.  I  (1687)  ;  Prinn 
V.  Edwards,  I  Ld.  Raym.  47,  3  Salk.  145  (1696).  Contra:  Rottenhojfer  V. 
Lent  hall,  Carth.  136  (1601)  ;  Goodzvin  v.  Goodzvin,  20  Viner's  Abr.  69  (1712). 
And,  by  the  later  practice,  the  court  under  some  circumstances  stayed  the 
second  action  imtil  the  writ  of  error  was  determined.  Taszvcll  v.  Stone,  4  Burr. 
24^4  (1769);  Gribhle  v.  Abbot,  i  Cowp.  72  (1774);  Entzvlstle  v.  Shepherd, 
2  T.  R.  78  (1787)  ;  Pool  V.  Charnock,  3  T.  R.  79  (1789) ;  Smith  v.  Shepherd, 
5  T.  R.  9  (1792;)  Bicknell  v.  Lonnstaffe,  6  T.  R.  455  (i795)  ;  Abraham  v. 
Pi'.gh,  5  B.  &  Aid.  903  (1822)  ;  Jenkins  v.  Pepoom,  2  Johns.  Cas.  (N.  Y.)  312 
(1801)  ;  Planters'  Bank  v.  Calvit,  3  Sm.  &  M.  (Miss.)  143,  41  Am.  Dec.  616 
(1844)  ;  Hailiuan  v.  Buckmaster,  8  111.  408  C1846)  ;  Taylor  v.  Shezv,  39  Cal. 
536,  2  Am.  Rep.  478  (1870)  ;  U.  S.  Fidelity  &c.  Co.  v.  Jones,  33  Ky.  L.  737, 
III  S.  \\'.  208  (1908);  First  Nat.  Bank  of  Frederick,  Wis.,  v.  Mcllvaine, 
32  S.  Dak.  177,  142  N.  W.  468  (1913).  Compare:  Atkins  v.  IVyman,  45  Maine 
399  ^1858). 

^'Bacon's  Abridgment,  "Bill  of  Exceptions";  2  Co.  Inst.  426;  3  Bl.  Comm. 
372;  Buller's  N.  P.  316.  Under  the  statute  if  the  judge  at  the  trial,  mistake 
the  law.  the  counsel  on  either  side  may  require  him  to  seal  a  bill  of  excep- 
tions. It  must,  however,  be  upon  some  point  of  law,  such  as  adrnitting  or 
refusing  evidence,  or  a  challenge,  or  upon  some  question  of  law  arising  dur- 
ing a  trial,  in  which  either  party  is  overruled  by  the  court.  Arch.  Pr.  (7th  ed.) 
311;  Elliott's  Appellate  Procedure,  §  797;  2  Tidd's  Practice  (9th  ed.)  862. 


WRIGHT  V.  SHARP  851 

for  the  plaintiff.  Next  term  the  court  was  moved  for  a  bill  of 
exceptions,  and  it  was  stirred  and  debated  in  court.  It  was  urged, 
that  the  law  requires  quod  proponat  exceptionem  suam,  and  no 
time  is  appointed  for  reducing  it  into  writing,  and  the  party  is  not 
grieved  till  a  verdict  be  given  against  him;  and  the  same  memory 
that  serves  the  judges  for  a  new  trial  v^nll  serve  for  bills  of  excep- 
tions. Vide  2  Inst.  437.  N.  B.  21,  540  b.  Vet.  Intr.  96,  136.  Ray- 
mond 405.  Brownl.  Red.  433.  2  Lev.  236.  Stat.  Westm.  II,  ch.  31. 
On  the  other  side  it  was  said,  that  this  practice  would  prove  a  great 
difficulty  to  judges,  and  delay  of  justice;  that  the  precedents  and 
entries  suppose  the  exception  to  be  written  down  upon  its  being  dis- 
allowed, and  the  statute  ought  to  be  construed  so  as  to  prevent 
inconvenience;  besides,  the  words  of  the  act  are  in  the  present 
tense,  and  so  is  the  writ  formed  on  the  act. 

Holt,  C.  J. :  If  this  practice  should  prevail,  the  judge  would 
be  in  a  strange  condition;  he  forgets  the  exception,  and  refuses  to 
sign  the  bill,  so  an  action  must  be  brought ;  you  should  have  insisted 
on  your  exception  at  the  trial;  you  waive  it  if  you  acquiesce,  and 
shall  not  resort  back  to  your  exception  after  a  verdict  against  you, 
when  perhaps,  if  you  had  stood  upon  your  exception,  the  party 
had  other  evidence,  and  need  not  have  put  the  cause  on  this  point ; 
the  statute  indeed  appoints  no  time,  but  the  nature  and  reason  of 
the  things  require  tlie  exception  should  be  reduced  to  writing  when 
taken  and  disallowed,  like  a  special  verdict,  or  a  demurrer  to  evi- 
dence not  that  they  need  to  be  drawn  up  in  form ;  but  the  substance 
must  be  reduced  to  writing  while  the  tiling  is  transacting,  because  it 
is  to  become  a  record ;  so  the  motion  was  denied.*^ 


*'The  exception  must  be  asked  for  at  the  time  the  alleged  erroneous  rul- 
ing is  made.  Gnillou  v.  Rcdfield,  20^  Pa.  2q.^  '^4  Atl.  886  (1903)  ;  Richards 
v.  Appcly,  187  Mass.  521,  73  JN.  E.  555  (1905);  Graves  v.  Hicks,  194  Mass. 
524,  80  N.  E.  605  (1907).  The  common  law  required,  also,  that  the  bill  be 
presented  signed  and  sealed  at  that  time,  but  for  the  convenience  of  bench 
and  bar,  modern  statutes  and  rules  permit  the  bill  to  be  formally  drawn  up 
and  settled  after  the  trial  within  a  prescribed  time.  Hake  v.  Stnibel,  121  111. 
321,  12  N.  E.  676  (1887)  ;  Stezvart  v.  Huntington  Bank,  11  Serg.  &  R._(Pa.) 
267,  14  Am.  Dec.  628  (1824)  ;  hx  parte  Bradstreet,  4'Pet.  (U.  S  )  102  7  L  ed 
796  (1830)  ;  Lazv  v.  Merrills,  6  Wend.  (N.  Y.)  268  (1830)  ;  Wilson  v.  Moore. 
19  N.  J.  L.  186  (1842);  Elzvcll  V.  Dizer,  83  Mass.  (i  Allen.)  484  (1861)  ; 
State  v.  Holmes,  36  N.  J.  L.  62  (1892)  ;  Ex  parte  Nelson,  62  Ala.  376  (1878)  ; 
Haines  v.  Commonzvealth.  oo  Pa.  St.  410  ('1882')  ;  Martin  v.  Foiilke,  114  111'. 
200,  29  JM.  E.  683  (1885)  ;  Che  Gong  v.  Stearns,  16  Ore.  219,  17  Pac.  871 
(1888);  Commonzvealth  y._Arnoldj__  161  Pa.  St.  .320,  29  Atl.  270  (1891)  ; 
Handier  v  btephens'onTT^j  IncT  498,  46  N.  ET  916  (1B96)  ;  Schlessinger  v. 
Cook,  8  Wyo.  484,  58  Pac.  757  (1899);  Trager  v.  Webster,  174  Mass.  580, 
55  N.  E.  318  (1899)  ;  Watson  v.  Milford,  72  Conn.  561  (1900)  ;  Gamache  v. 
Biidd,  129  Cal.  554,  62  Pac.  105  (1900)  ;  Enck  v.  Gerding,  63  Ohio  St.  175,  57 
N.  E.  10S3  (1900);  Gaff  V.  Britton,  182  Mass.  293,  65  N.  E.  379  (1902); 
Gartjnan  v.  Union  Tr.  Co..  T3  Ea-Dist.  R.  210  (19Q4)  ;  Jennings  v.  P.  B.  &  W. 
R.  Co.,  218  U.  S.  255,  54  L.  ed.  1031  (1910) ;  Pace  v.  Volk,  85  Ohio  St.  413 
(1912)  ;  Dalton  V.  Dalton,  146  Ky.  18,  141  S.  W.  371  (1911)  ;  Sieling  v.  Brun- 
ncr,  117  Md.  682,  B>2,  Atl.  1032  (1912)  ;  Alzvard  v.  Harper,  253  111.  294,  97  N.  E. 
653  (1912)  ;  Wy.';s-Thahnan  v.  Maryland  Casualty  Co.,  193  Fed.  53  (loii)  ; 
Lupton  V.  Underivood,  26  Del.  519,  85  Atl.  965  (1912)  ;  Moore  v.  Harrison,  114 
Va.  424,  76  S.  E.  920  (1912)  ;  Kramm  v.  Stockton  E.  R.  Co.,  22  Cal.  App.  7^7, 
136  Pac.  523  (1913)  ;  Davis  v.  Cress,  214  Mass.  379,  loi  N.  E.  1081   (1913)  ; 


85J  AiTiiAL  AM)  i::jkok 

LEES  r.  UXITl'.D  STATES 

SuPRKMi:  CcHKT  oi-  Till':  United  States,  1893 
150  U.  S.  476 

On  August  22,  1888,  tlie  United  States  commenced  this  action 
in  the  District  Court  of  the  United  States  for  the  Eastern  District  of 
rcnnsylvania  to  recover  of  Joseph  Lees  and  John  S.  Lees,  the  pres- 
ent plainlilts  in  error,  the  sum  of  one  thousand  dollars,  as  a  forfeit 
and  penalty  for  a  violation  by  them  of  the  Act  of  Congress  of  Feb- 
ruary 26,  1SS5,  entitled  "An  act  to  ]:)rohibit  the  importation  and 
migration  of  foreigners  and  aliens  under  contract  or  agreement  to 
perform  labor  in  the  United  States,  its  territories,  and  the  District 
of  Columbia."  23  Stat.  332,  ch,  164.  Proceedings  were  thereafter 
had  in  that  suit  which  resulted  in  a  judgment,  on  February  23,  1889, 
in  favor  of  the  L^nited  States,  for  the  sum  of  one  thousand  dollars. 
This  judgment  was  affirmed  by  the  circuit  court  of  that  district,  and 
has  since,  by  writ  of  error,  been  brought  to  this  court  for  review.** 

Brewer,  J. :  A  third  allegation  of  error  is  that  the  court  com- 
pelled one  of  the  defendants  to  become  a  witness  for  the  govern- 
ment, and  furnish  evidence  against  himself.  The  bill  of  exceptions 
reads  as  follows : 

"John  S.  Lee  sworn. 

"Mr.  Fenton :  John  S.  Lee,  the  witness  called,  is  one  of  the 
defendants.  This  is  a  proceeding  in  the  nature  of  a  criminal  pro- 
ceeding. I  object  to  his  being  examined  on  behalf  of  the  plaintiff, 
because  he  is  protected  by  statute. 

"(Objection  overruled.    Exception  for  defendant.)" 

This,  though  an  action  civil  in  form  is  unquestionably  criminal 
in  its  nature,  and  in  such  a  case  a  defendant  can  not  be  compelled  to 
be  a  witness  against  himself.  It  is  unnecessary  to  do  more  than  to 
refer  to  the  case  of  Boyd  v.  United  States,  116  U.  S,6i6.  Tlie  ques- 
tion was  fully  and  elaborately  considered  by  Mr.  Justice  Bradley  in 
the  opinion  delivered  in  that  case.  And  within  the  rule  there  laid 
down  it  was  error  to  compel  this  defendant  to  give  testimony  in 
behalf  of  the  government. 

Not  questioning  that  such  is  the  scope  and  effect  of  the  decision 
in  Boyd  v.  United  States,  counsel  for  the  government  insists  that 
the  objection  is  not  properly  preserved  in  the  record,  and,  there- 
fore, not  open  for  our  consideration.  A  single  bill  of  exceptions 
was'prepared  to  bring  on  to  the  record  all  the  proceedings  of  the 
trial.    It  gives  all  the  testimony,  the  various  objections  and  rulings 

Otinmwa  Bridge  Co.  v.  Corrigan,  251  Mo.  667,  158  S.  W.  39  (1913)  ;  Boyd  v. 
Kellog.  121  Md.  42,  88  Atl.  30  (1913)  ;  State  ex  rcl.  Bisseberg  v.  Olson,  124 
Minn.  537,  144  N.  W.  755  (1914)  ;  Breen  v.  Kennedy,  158  Wis.  48,  147  N.  W. 
996  (1914)  ;  Robertson  v.  Cockrell,  209  Fed.  843  (1014)- 

Where  the  trial  is  by  the  court,  see  Ihint  v.  Bloomer,  13  N.  Y.  341,  12 
How.  Pr.  (N.  Y.)  567  (1856).  ^  .   .  ,    , 

"The  arguments  of  counsel  and  part  of  the  opinion  of  the  court  are 
omitted. 


LEES    V.    UNITED    STATES  853 

during  its  admission,  the  instructions  asked,  the  charge  of  the  court, 
and  the  exceptions  thereto,  and  closes  with  these  words : 

"And  thereupon  the  counsel  for  the  said  defendants  did  then 
and  there  except  to  the  aforesaid  charge  and  opinion  of  the  said 
court,  and  inasmuch  as  the  said  charge  and  opinion,  so  excepted  to, 
do  not  appear  upon  the  record : 

"The  said  counsel  for  the  said  defendants  did  then  and  there 
tender  this  bill  of  exceptions  to  the  opinion  of  the  said  court,  and 
requested  the  seal  of  the  judge  aforesaid  should  be  put  to  the  same, 
according  to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided. And  thereupon  the  aforesaid  judge,  at  the  request  of  the 
•  said  counsel  for  the  defendants,  did  put  his  seal  to  this  bill  of  ex- 
ceptions, pursuant  to  the  aforesaid  statute  in  such  case  made  and 
provided  tliis  fourteenth  day  of  May,  1889. 

"(Signed)  William  Butler.  (Seal)" 
The  objection  is  that  it  nowhere  appears,  by  any  direct  certifi- 
cate of  the  judge,  by  whom  John  S.  Lees  was  called  to  testify,  or  on 
whose  behalf,  or  that  any  objection  was  made  and  overruled,  or  any 
exception  taken.  Counsel  says  in  his  brief:  "It  is  plainly  evident 
that  the  bill  of  exceptions  was  designed,  as  it  states,  to  introduce 
into  this  record  only  the  charge  and  opinion  of  the  court,  and  did 
not  relate  to  any  of  the  innumerable  other  matters,  as  to  which  it 
appears  that  the  right  to  except  was  reserved  at  the  time  of  their 
occurrence,  and  memoranda  entries  made  at  the  time  for  future  bills 
of  exception,  should  they  hereafter  be  deemed  advisable.  But  the 
purpose  to  introduce  these  matters  by  such  bills  of  exceptions  seems 
to  have  been  abandoned ;  at  any  rate,  no  such  bills  appear  in  this  rec- 
ord, and  these  matters  can  not,  therefore,  be  considered  by  the 
court." 

There  is  some  plausibility  in  this  contention,  inasmuch  as  the 
two  sentences  prior  to  the  last,  quoted  above  from  the  bill  of  excep- 
tions, suggest,  at  least,  that  the  purpose  of  counsel  for  defendants 
was  simply  to  preserve  exceptions  to  the  charge,  and  that  the  authen- 
tication of  the  judge  was  requested  for  that  alone.  But  whatever 
of  force  tliere  is  in  this  implication  is  overborne  by  the  statement  in 
the  last  sentence  of  what  the  judge  did.  By  his  signature  and  seal 
lie  authenticated  the  bill  of  exceptions,  as  prepared  and  presented  to 
him.  And  all  the  facts  and  matters  stated  in  that  bill  are  by  such 
authentication  brought  into  the  record  for  all  purposes  for  which 
they  may  legitimately  be  used. 

The  bill  is  a  single  bill  of  exceptions,  commencilig  with  the  open- 
ing of  the  trial  and  ending  with  the  charge  of  the  court,  and  as 
such  it  is  authenticated.  And  that,  by  this  bill  errors  other  than 
those  in  the  charge  were  sought  to  be  preserved,  is  made  clear  by 
the  fact  that,  in  the  assignments  of  error  filed  with  the  bill,  there 
are  separate  allegations  of  error  in  respect  to  the  rulings  of  the  court 
in  the  admission  of  testimony.  It  is  well  settled  that,  instead  of 
preparing  separate  bills  for  each  separate  matter,  all  the  alleged 
errors  of  a  trial  may  be  incorporated  into  one  bill  of  exceptions. 
Pomeroy  v.  Bank  of  Indiana,  i  Wall.   (U.  S.)   592,  600,  601,  in 


S5  |.  Arrr.AL  axd  euror 

which  it  was  saki:  "Many  exceptions  may  be  inserted  in  cwie  bill 
of  exceptions,  and,  of  course,  it  is  stifiicient  if  the  bill  of  exceptions 
is  scaled  at  the  close,  Accordinc^ly,  the  practice,  in  the  lirst  and  sec- 
ond circuits,  is  to  put  every  exception  taken  at  the  trial  into  one  bill 
of  exceptions,  which  makes  the  records  less  voluminous. "^°  See  also 
Chatcauc]ay  Iron  Co.,  Pctllioncr,  128  U.  vS.  5.14.  It  does  not,  how- 
ever, follow  tliat,  because  all  rulings  excepted  to  at  the  trial  may  be 
incorporated  into  one  bill  of  exceptions,  all  the  proceedings  at  the 
trial  ought  to  be  stated  at  length.  On  the  contrary,  we  frequently 
find  all  tlie  testimony  set  out  in  such  a  bill  when  it  can  serve  no  use- 
ful purpose,  and  simply  encumbers  the  record.  Only  so  much  of  the 
testimony,  or  the  proceedings,  as  is  necessary  to  present  clearly  the 
matters  at  law  excepted  to  should  be  preserved  in  a  bill  of  excep- 
tions. If  counsel  would  pay  more  attention  to  this,  they  would  often 
save  this  court  much  unnecessary  labor,  and  their  clients  much  need- 
less expense.  Of  course,  in  this  case,  as  in  all  similar  cases,  there 
remains  an  inquiry  as  to  the  scope  and  sufficiency  of  any  particular 
objection  or  exception  disclosed  by  the  bill.  All  that  is  meant  by 
this  ruling  is  that  the  objection  or  exception  thus  noted  is  before  us 
for  consideration  for  whatever  it  is  worth.  And,  turning  to  the  ex- 
ception now  under  consideration,  it  is  specific  and  direct  to  the  one 
error  of  compelling  the  defendant  to  be  a  witness  against  himself. 
It  is  not  like  that  in  Railroad  Company  v.  Varnell,  98  U.  S.  479, 
where  the  exception  ran  a  whole  page  of  the  court's  charge,  nor  was 
it  as  in  Hanna  v.  Maas,  122  U.  S.  24,  an  objection  without  any  excep- 
tion to  the  court's  ruling,  but  a  distinct  objection  to  a  specific  matter 
presented,  considered,  and  overruled,  and  the  ruling  excepted  to. 
It  was,  therefore,  sufficient  to  bring  to  the  consideration  of  tliis 
court  the  error  alleged.*^ 
Judgment  reversed. 


^'Accord :  Stewart  V^  Huntlnaton  Bank.  11  Serp-.  &  R,  (Pa.)  267,  14  Am. 
Dec.  628  (1 824 rr&r^tc'<?r  v.  Isisk,  12  How.  Pr.  (N.  Y.)  481  (1856)  ;  Anderson 
v.  Ames,  6  Iowa  4S6  (1858)  ;  Associates  of  Jersey  Co.  v.  Davison,  29  N.  J.  L. 
415  (i860)  ;  Norfolk  &^IV.  R.  Co.  v.  Shott,  92  Va.  34,  22  S.  E.  811  (1895) ; 
Rosenthal  v.  Ehrlichcr.  i^A  Pa.  .'^96.  26  Atl.  435  (1893)  ;  Council  v.  O' lYeit I. _i%4- 
grfSt  583_j26  Atl.  607  ( 180-^)  :  Polcv  v.  Phila.  Rapid  Transit  Cjh.  240  Pa.  ^09, 
^7  Atl.  289  (1913)  ;  First  Nat.  Bank  v.  l-ox,  40  App.  (D.  C.)  430  (i973)- 
Contra :  Tall  v.  Steam  Packet  Co.,  90  Md.  248,  44  Atl.  1007,  47  L.  R.  A.  120 
(1899)  ;  Baltimore  &  Ohio  R.  Co  v.  Ruetcr,  114  Md._6S7,  80  Atl.  220  (1911)  ; 
Citizens  Mut.  Fire  Ins.  Co.  of  Cecil  County  v.  Conozvingo  Bridge  Co.,  116  Md. 
422,  82  Atl.  372  (1911)  ;  and  see  Flainlin  v.  Budge,  56  Fla.  342,  47  So.  825 
(1908). 

*°Under  the  statute  of  Westminster  II,  a  bill  of  exceptions  is  settled  by- 
stating  in  a  condensed  and  narrative  form  such,  and  only  such,  material  facts 
as  are  necessarv  for  the  determination  of  the  point  of  law  raised.    Ex  parte 

Jones,  8  Cow.    (N.  Y.)    123   (1828)  ;   Thnrnn^     ffV;>/;/    O  Spr^r    R,  R     (P^  ^   8? 

(1822)  ;  Carey  v.  Giles,  lo  Ga.  i  (1851)  ;  Karasicli  v.  ffashroucli,  28  Wis.  569 
C1871)  ;  Hickman  v.  Jones,  76  U.  S.  197,  19  L.  ed.  551  (1869)  ;  Harvey  v.  Van 
DeMark,  71  111.  117  (1873)  ;  Hanna  v.  Maas,  122  U.  S.  24,  30  L.  ed.  11 17 
(1886)  ;  Alexander  v.  Williamson,  85  Ga.  13,  12  S.  E.  182  (1890)  ;  Grisell  v. 
Noel  Bros.,  9  Ind.  App.  251,  36  N.  E.  452  (1893)  ;  Caldzvell  v.  Parks,  50  Cal. 
502  (1875) ;  Baltimore  R.  Co.  v.  Fitzgerald,  2  App.  D.  C.  501  (1894)  ;  Ryder 
V.  Jenkins,  163  Mass.  536,  40  N.  E.  848  (1895)  :  Whaley  v.  Vidal,  26  S.  Dak. 
300.  128  N.  W.  331  (1910)  ;  In  re  Horan,  207  Mass.  256,  93  N.  E.  581  (1911)  ; 
Halm  V.  Mackay,  63  Ore.  100,  126  Pac.  12  (1912)  ;  Doylestoivn  Agriculture 


SIXES   V.    RANSOM  855 

SIKES  V.  RANSOM 

Supreme  Court  of  New  York,  i8io 

6  Johns.  (N.  y.)  279 

This  was  an  application  to  the  court  for  a  mandamus  to  the 
judges  of  the  Ostego  common  pleas,  to  amend  a  bill  of  exceptions, 
according  to  the  truth  of  the  case.^^ 

Per  Curiam.  (Kent,  C.  J.)  :  The  application  is  entirely  new; 
and  it  becomes  a  question  whether  this  court  can  interfere  when  a 
court  below  refuses  to  seal  a  bill  of  exceptions.  The  books  do  not 
furnish  much  light  on  this  subject.  The  practice,  in  England,  under 
the  Stat,  of  Westm.  II  (of  which  ours  is  a  copy),  seems  to  be, 
to  apply  to  the  court  of  chancery,  for  a  writ  grounded  upon  the 
statute.  The  form  of  the  writ  is  to  be  found  in  the  register ;  ( 182 
a)*^  and  Lord  Redesdale,  in  the  case  of  Lessee  of  Lawlor  v.  Murray, 
I  Sch.  and  Lefroy  75,  calls  it  a  mandatory  writ,  "a  sort  of  pre-roga- 
tive  writ;"  that  the  judges  to  whom  it  is  directed,  must  obey  the 
writ,  by  sealing  the  exceptions,  or  make  a  special  return  to  the 
king  in  chancery.*^  The  writ,  after  reciting  the  complaint,  com- 
mands the  judges  si  ita  est,  tunc  sigilla  vestra,  etc.,  et  hoc  sub  peri- 
culo  quod  incumbit  nullatenus  omittatis.  What  that  peril  is,  within 
the  purview  of  the  writ,  does  not  distinctly  appear ;  though  the  books 
speak  of  an  action  on  the  statute,  at  the  instance  of  the  party  ag- 
grieved. (Show.  P.  G.,  117.)  In  the  Rioter's  Case,  i  Vern.  175, 
a  precedent  was  produced,  where,  in  a  like  case,  such  a  mandatory 
writ  had  issued  out  of  chancery,  to  the  judge  of  the  sheriff's  court 
in  London.  But,  though  no  instance  appears,  of  such  a  writ  issuing 
out  of  the  K.  B.  when  an  inferior  court  refused  to  seal  a  bill  of  ex- 
ceptions, there  is  no  case  denying  to  that  court  the  power  to  award 
the  writ.  It  is,  in  effect,  a  writ  of  mandamus,  and  it  is  so  termed  in 
the  books.  (Bac.  Abr.  tit.  Mandamus,  E.)  A  mandamus  is  a  pre- 
rogative writ.   It  ought  to  be  used  where  the  law  has  established  no 


Co.  V.  Brack etf,  109  Maine  301,  84  Atl.  146  (1912)  ;  Cornell-Andrews  Smelt- 
ing Co.  v.  Boston  &  P.  R.  Corp.,  215  Mass.  381,  102  N.  E.  625  (1913)  ;  West 
V.  McDonald,  67  Ore.  551,  136  Pac.  650.  A  stenographer's  transcript  of 
the  testimony  is  not  a  bill  of  exceptions.  Keady  v.  United  Ry.,  57  Ore.  32^ 
108  Pac.  197  (1910)  ;  Cincinnati  Tr.  Co.  v.  Rccbiisch,  192  Fed.  520  (1912). 
But  may  be  incorporated  in  the  bill  of  exceptions  by  the  practice  in  som^ 
jurisdictions.  Wagoner  v.  Wilson,  108  Ind.  210,  8  N.  E.  925  (1886)  ;  Biq 
Creek  Co.  v.  Wolf,  138  Ind.  496,  38  N.  E.  52  (1894)  ;  Sanders  v.  Mississippi, 
74  Miss.  531,  21  So.  299  (1896);  Connell  v  O'Neil.  1^4  Pa  St.  582,  26  Atl. 
607  (1893)  lYoast  V.  Beattv.  12  Pa.  Super.  Ct.  219  (1899)  ;  Foley  v.  Philadel- 
phia  Rapid  TransitjCa^24o'Pa.  169,  87  Atl.  289  (1913). 

""ParT  of  the  opinion  is  omitted.         ~ 

^See  translation  of  writ  in  note  to  Drexel  v.  Man,  6  Watts  &  S.  (Pa.) 
386,  40  Am.  Dec.  573  (1843). 

^''In  Drexel  v.  Mann.  6  Watts  &  S.  (Pa.)  -^86.  40  Am.  Dec.  573  (1843), 
it  is  said  by  Gibsoh.'c.  J.:  "Such  a  remedy  certainly  resembles  an  alternative 
mandamus,  still  it  is  not  a  prerogative  writ,  but  specific,  grounded  on  a 
statute."  Accord:  Conrovi'  v.  Schloss.  <^^  Pa.  St.  28  (1867);  and  see  Haines 
V.  Commonwealth,  99  Pa.  St.  4iQ_(i882). 


1^5^^  ATPKAL    AXn    F.KROR 

specific  remedy;  anil  \vIicro,  in  justice  ami  j^ood  .q-ovcrnmcnt,  there 
ouirht  to  be  one.  Why  can  not  the  writ  in  question  issue  from  this 
court  ?  We  have  the  general  superintendence  of  all  inferior  courts ; 
and  arc  bound  to  enforce  obedience  to  the  statute,  and  to  oblige 
subordinate  courts  and  magistrates  to  do  those  legal  acts  which  it  is 
their  duty  to  do.  The  mandamus,  as  was  observed  in  tlie  case  of 
77a'  A';;;(/  v.  Baker,  3  Burr.  1265,  has,  within  the  last  century,  been 
liberally  interposed,  for  the  benefit  of  tlic  subject,  and  the  advance- 
ment of  justice.  There  is  no  reason  why  the  awarding  of  this  par- 
ticular writ  does  not  fall  within  the  jurisdiction  of  this  court,  or  why 
it  should  be  exclusively  confined  to  the  court  of  chancery.  It  would 
be  equally  in  the  alternative,  quod  si  ita  est,  to  seal  the  bill  of  ex- 
ceptions ;  and  if  it  be  returned  quod  non  ita  est,  tlie  answer  would  be 
sufficient;  and  the  party  if  aggrieved,  would  be  put  to  his  action  for 
a  false  return.  If  complaint  should  be  made  against  this  court,  or 
one  of  its  judges,  for  refusing  to  seal  a  bill  of  exceptions,  then  the 
writ  must,  ex  necessitate,  come  from  chancery,^"  if  anywhere;  but  in 
no  other  case  can  it  be  indispensable. 

But,  though  the  court  are  of  opinion  that  they  have  jurisdiction 
in  this  case,  yet  there  does  not  appear  to  be  sufficient  ground  dis- 
closed to  justify  their  interference.^^ 

Motion  denied. 


^But  compare  The  Rioters  Case,  i  Vern.  175  (1683).  A  motion  was 
made  that  the  Lord  Keeper  would  grant  a  mandatory  writ  to  the  Chief 
Justice  of  the  Kinp's  Bench  to  command  him  to  sign  a  bill  of  exceptions. 
The  Lord  Keeper  denied  the  motion  :  "for  that  the  precedent  they  produced 
was  to  an  inferior  court,  and  he  would  not  presume,  but  the  Chief  Justice 
of  England  would  do  what  should  be  just  in  the  case." 

"Whatever  the  nature  of  the  remedy,  whether  true  mandamus  or  a 
statutory  proceeding  akin  to  mandamus,  the  appellate  court  has  power  to 
compel  the  trial  court  to  settle  a  bill  of  exceptions.  Y.  B.  11  Hen.  IV  52; 
Fitz.  N.  B.  21 ;  2  Co.  Inst.  427;  Bridgman  v.  Holt,  Shower  P.  C.  in  ;  Lawlor 
V.  Murray,  I  Sch.  &  L.  75  (1803)  ;  People  v.  Jjidges,  i  Caine  (N.  Y.)  511 
(1804)  ;  Bronssart  v.  Tralian,  3  Martin  (La.)  714  (1815)  ;  Springer  v.  Peter- 
son, I  Blackf.  (Ind.)  188  (1822);  Delavan  v.  Boardman,  5  Wend.  (N.  Y.) 
132  (1830)  ;  Ex  parte  Crane,  5  Pet.  (U.  S.)  189,  8  L.  ed.  92  (1831)  ;  People  v. 
Jameson,  40  111.  93,  89  Am.  Dec.  2i?>7  (1867)  ;  Etheridge  v.  Hall,  7  Port.  (Ala.) 
47  (1838)  ;  People  v.  Pearson,  3  111.  (2  Scam.)  189,  3;^  Am.  Dec.  445  (1839)  ; 
I2r£Xrl  V  May,  (\  Watts  &  S.  (Pa.)  386,  40  Am.  Dec.  573  (1843)  ;  People  v. 
Baker,  35  Barb.  (N.  Y.)  105  (1861)  ;  Qpnrow  v^  Scldoss^^S^I'a.  SLj2S  (1867)  ; 
Marsh  v.  Hand,  35  Md.  123  (1871)  ;  Douglass  v.  Loomis,  5  W.  Va.  542  (1871)  ; 
Jelley  v.  Roberts,  50  Ind.  I  (1875)  ;  Benedict  v.  Hozvell,  39  N.  J.  L.  221  (1877)  ; 
Page  v.  Clapton,  30  Grat.  (Va.)  415  (1878)  ;  Henry  v.  Davis,  13  W.  Va.  230 
(1878)  ;  People  v.  VanBuren,  41  Mich.  725  49  N.  W.  924  (1879)  ;  State  v. 
Weaver,  11  Nebr.  163,  8  N.  W.  385  (1881);  State  v.  Hazves,  43  Ohio  St.  16 
(1885)  ;  People  v.  Anthony,  129  111.  218,  21  N.  E.  780  (1889)  ;  Swarts  v.  Nash, 
45  Kans.  341,  25  Pac.  873  (1891)  ;  Collins  v.  Christian,  92  Va.  731,  24  S.  E. 
472  (i8q6)  ;  State  v.  Snecd,  105  Tenn.  711,  58  S.  W.  1070  (1900)  ;  Houghton 
v.  Superior  Court,  128  Cal.  352,  60  Pac.  972  (1900)  ;  Taylor  v.  Reese,  108  Ga. 
379.  2>2>  S.  E.  917  (1899)  ;  Sears  v.  Candler,  112  Ga.  381,  2>7  S.  E.  442  (1900)  ; 
State  V.  Gibson,  187  Mo.  536,  86  S.  W.  177  (1904);  Morgan  v.  Kent  Circuit 
Judge,  150  Mich.  64,  113  N.  W.  583  (1907)  ;  Harper  v.  Judge,  155  Mich.  543, 
119  X.  W.  913  (1909)  ;  Springfield  v.  Fulk,  96  Ark.  316,  131  S.  W.  694  (1910)  ; 
Brode  v.  Goslin,  158  Cal.  699,  112  Pac.  280  (1910)  ;  Beck  v.  Great  Northern 
Ry.  Co.,  115  Minn.  259,  132  N.  W.  i  (1911)  ;  Daznes  v.  Rose-Marshall  Coal 
Co.,  74  Wash.  565,  134  Pac.  180  (1913).  But  not  to  settle  it  in  a  particular 
manner  when  there  is  a  dispute  as  to  the  incidents  of  the  trial.    The  presid- 


HUBBARD   V.    CHAPMAN  857 

HUBBARD  V.  CHAPMAN 

Supreme  Court  of  New  York,  Appellate  Division,  1898 

28  App.  Div.  (N.  Y.)  577 

Motion  by  the  plaintiff  to  dismiss  an  appeal  taken  by  the  de- 
fendant. 

Hatch,  J. :  The  appellant  made  and  served  a  case  which  he 
calls  a  "proposed  case  and  exceptions."  It  is  evident  that  by  this 
proposed  case  the  appellant  only  seeks  to  review  certain  rulings  of 
the  court  in  receiving  certain  testimony,  offered  by  the  respondent 
upon  the  trial,  and  for  this  purpose  the  case  as  proposed  states  that 
"evidence  was  offered  by  the  plaintiff"  tending  to  prove,"  etc.  Then 
follows  a  statement  of  the  evidence,  and  the  objection  thereto,  and 
the  ruling  of  the  court  thereon. 

We  think  that  this  is  a  case  contemplated  by  section  997  of  the 
Code  of  Civil  Procedure,  which  provides : 

"When  a  party  intends  to  appeal  from  a  judgment  rendered 
after  a  trial  of  an  issue  of  fact,  or  to  move  for  a  new  trial  of  such 
an  issue,  he  must,  except  as  otherwise  prescribed  by  law,  make  a 
case,  and  procure  the  same  to  be  settled  and  signed  by  the  judge 
.  .  .  by  or  before  whom  the  action  was  tried,  as  prescribed  in  the 
General  Rules  of  Practice.  .  .  .  The  case  must  contain  so  much 
of  tue  evidence  and  other  proceedings  upon  the  trial  as  is  material 
to  the  questions  to  be  raised  thereby,  and  also  the  exceptions  taken 
by  the  party  making  the  case." 


ing  judge  must  say  whether  or  not  an  exception  was  taken  and  his  return 
controls ;  the  suggested  remedy  being  an  action  for  a  false  return.  Tzveed  v. 
Davis,  I  Hun.  (N.  Y.)  252,  47  How.  Pr.  (N.  Y.)  162  (1874)  ;  State  v.  Todd, 
4  Ohio  351  (1831)  ;  Benedict  v.  Howell,  4  Ohio  351  (1831)  ;  State  v.  Small, 
47  Wis.  436,  2  N.  W.  544  (1879)  ;  Cmnmings  v.  Armstrong,  34  W.  Ya.  I,  il 
S.  E.  742  (1890)  ;  Sea  Ins.  Co.  v.  St.  Louis  Ry.,  103  Ark.  503,  i^  S.  W.  251 
(1912). 

By  statute  in  some  states  if  the  judge  disallows  or  fails  to  sign  excep- 
tions duly  tendered,  the  party  aggrieved  may  establish  his  exceptions  in  the 
appellate  court.  Bottum  v.  Fogle,  105  Mass.  42  (1870)  ;  J^iorse  v.  Woodworth, 
155  Mass.  2:iT„  27  N.  E.  loio,  29  N.  E.  525  (1891)  ;  Clemens  Electrical  Mfg. 
Co.  V.  Walton,  173  Mass.  286,  52  N.  E.  132,  53  N.  E.  820   (1898)  ;  Crow  v. 
Minor,  85  Cal.  214,  24  Pac.  640  (1890)  ;  Baird  V.  Glcckler,  3  S.  Dak.  300,  52 
N.  W.   1097    (1892);  Frank  v.  Mallett,  92  Maine  77,  42  Atl.  238    (1898); 
Whipple  v.  Prccce,  18  Utah  454,  56  Pac.  296  (1899)  ;  Forrester  v.  Boston  &• 
C.  M.  Co.,  23  Mont.  122,  58  Pac.  40  (1899)  ;  Kendall  v.  Rossi  (R.  I.),  85  Atl. 
922    (1913).    In  other  states,  also  by  statute,  a  bill  of   exceptions  may  be 
signed  by  bystanders  if  the  judge  refuses  to  sign  it.    Wright  v.  Nichols,  I 
Bibb    (Ky.)    298    (1808);   Arnold  v.   Leathers,  2   Dana    (Ky.)    287    (1834) 
Houston  v.  Jones,  4  Tex.  170  (1840)  ;  Simon  v.  Weigel,  10  Iowa  505  (i860) 
St.  John  V.  Wallace,  25  Iowa  21  (1868)  ;  Hoyt  v.  Williams,  41  Mo.  270  (1867) 
H eidcnheimer   v.    Thomas,   63    Tex.    287    (1885) ;    Diamond   Mining    Co.   v 
Faidkner,  17  Colo.  9,  28  Pac.  472  (1891)  ;  Fordvce  v.  Jackson,  56  Ark.  594, 
20  S.  W.  528,  597   (1892)  ;   Williams  v.  Pitt,  38  Fla.  162,  20  So.  936   (1896) 
.4ycr  V.  Greer,  87  Ark.  543,  113  S.  W.  209  (1908)  ;  Cox  v.  Cooley,  88  Ark.  350, 
114  S.  W.  929  (1908)  ;  State  v.   Taylor,  134  Mo.  App.  430,  114  S.  W.   1029 
(1908)  ;  Shook  v.  Shook  (Tex.  Civ.  App.),  145  S.  W.  699  (1912). 


S5S  APPKAL   AND   ERROR 

By  rule  34  of  the  General  Rules  of  Practice  it  is  provided  that 
"A  bill  of  exceptions  shall  only  contain  so  much  of  the  evidence  as 
may  be  necessary  to  present  the  questions  of  law  upon  which  excep- 
tions were  taken  on  the  trial,  and  it  shall  be  the  duty  of  the  judge, 
upon  settlement,  to  strike  out  all  the  evidence  and  other  matters 
which  shall  not  have  been  necessarily  inserted." 

It  thus  appears  that  the  code  and  the  rules  are  in  harmony  with 
respect  to  what  constitutes  a  case  and  exceptions.  One  refers  to 
the  other,  and  by  the  express  terms  of  each  it  is  only  required  that 
the  case  shall  contain  so  much  of  the  evidence  and  proceedings  had 
upon  the  trial  as  is  material  to  present  the  questions  and  exceptions 
which  the  appellant  seeks  to  have  reviewed.  In  this  view  it  can 
make  no  practical  difference  whether  the  evidence  in  terms  be  set 
out,  or  a  statement  of  its  effect  be  made.  The  essential  thing  is  to 
have  tlie  fact  appear  and  when  this  is  done  every  requirement  is  met, 
as  the  parties  will  then  have  everything  which  will  protect  their 
rights,  and  the  court  be  informed  of  all  that  is  needful  to  make  a 
proper  disposition  of  the  case.  While  no  mention  is  made  of  a  bill 
of  exceptions  in  the  code,  the  same  is  not  true  of  the  rule.  But  it  is 
quite  evident  from  a  reading  of  both  that  the  proposed  case  for 
which  provision  is  made  in  the  code,  embrace  what  was  formerly 
known  as  a  bill  of  exceptions.^^ 

It  has  been  the  uniform  desire  of  the  court  that  where  the  ap- 
pellant seeks  only  to  have  questions  of  law  presented  for  review,  the 
case  should  not  contain  the  whole  of  the  evidence,  but  only  so  much 
as  will  present  the  questions  sought  to  be  reviewed.  Such  is  the 
recommendation  of  the  court  as  expressed  in  the  decisions. °^ 

The  code  has  in  no  respect  changed  this  rule,  but  the  practice 
in  this  regard  remains  the  same  as  under  the  decisions  we  have  cited, 
and  such  practice  is  expressly  continued  by  the  provisions  of  Su- 
preme Court  Rule  34,  as  it  is  therein  made  the  duty  of  the  judge  to 
strike  out,  upon  a  settlement,  all  evidence  and  other  matters  not 
necessarily  required  to  present  the  questions  sought  to  be  reviewed. 

The  defendant,  in  his  proposed  case  and  exceptions,  complies 
with  this  rule,  as  he  makes  a  clear  statement  of  what  the  evidence 


^^Citing  Winter  V.  Crosstown  Ry.  Co.,  8  Misc.  362,  28  N.  Y.  S.  695,  59 
N.  Y.  St.  598  (1894).  Accord:  Stiasny  v.  Metropolitan  St.  Ry.  Co.,  65  App. 
Div.  268,  72  N.  Y.  S.  747  (1901)  ;  and  see  3  Encyc.  PI.  &  Pr.  881. 

■"Citing  Marckwald  v.  Navigation  Co.,  8  Hun  (N.  Y.)  547  (1876); 
Price  v.  Powell,  3  N.  Y.  322  (1852)  ;  Bissel  v.  Hamlin,  20  N.  Y.  519  (1859)  ; 
Jewell  V.  Van  Steenhnrgh,  58  N.  Y.  85  (1874)  ;  Tweed  v.  Davis,  i  Hun  (N.  Y.) 
252,  47  How.  Pr.  (N.  Y.)  162  (1874).  Accord:  Hodman  v.  Aetna  Fire  Ins. 
Co.,  19  Abb.  Pr.  (N.  Y.)  325,  24  N.  Y.  Super.  Ct.  501  (1863)  ;  Silver  Valley 
Min.  Co.  v.  Smelting  Co.,  119  N.  Car.  415,  26  S.  E.  27  (1896);  Zticher  v. 
Bhimenthal,  58  N.  Y.  S.  318  (1899)  ;  Douglas  v.  GlarAer,  9  N.  Dak.  615,  84 
N.  W.  552  (1900)  ;  IVierichs  v.  Innis,  32  Misc.  462,  66  N.  Y.  S.  553  (1900). 
Evidence  should  be  incorporated  in  a  condensed  and  narrative  form.  Bat- 
tersby  v.  Abbott,  9  Cal.  565  (1858)  ;  Bargcr  v.  Halford,  10  Mont.  57,  24  Pac. 
699  (1890)  ;  Donai  v.  Lutjens,  20  Misc.  221,  45  N.  Y.  S.  364  (1897)  ;  State  v. 
Otis,  71  Minn.  511,  74  N.  W.  283  (1898);  Watson  v.  Duncan,  29  Misc.  447, 
60  N.  Y.  S.  755  (1899)  ;  Peoples  v.  Evans,  50  Tex.  Civ.  App.  225,  in  S.  W.  756 
C1908)  ;  Pulcino  v.  Long  Island  R.  Co.,  125  App.  Div.  629,  109  N.  Y.  S.  1076 
(1908)  ;  Twiggs  v.  Williams,  98  S.  Car.  431,  82  S.  E.  676  (1914)  ;  Donahoe  v. 
Adebar,  34  S.  Dak.  471,  149  N.  W.  175  (1914). 


HUBBARD   V.    CHAPMAN  859 

tended  to  establish,  followed  by  the  objection,  the  ruling  of  the 
court  thereon,  and  the  exception  to  such  ruling.  So  that  in  this 
respect  the  point  sought  to  be  raised  is  clearly  intelligible,  and  gives 
notice  to  tlie  respondent  of  the  precise  question  which  the  appellant 
seeks  to  have  reviewed. 

The  remedy  of  the  respondent  is  clear.  If  the  statement  as  thus 
made  does  not  conform  to  the  facts  as  they  appeared  on  the  trial, 
and  upon  which  the  ruling  w^as  based,  he  is  authorized  to  propose, 
by  way  of  amendment,  such  further  statement,  if  any,  as  he  claims 
the  evidence  established,  in  order  that  the  statement  may  contain  the 
precise  facts  upon  which  the  ruling  of  the  court  v/as  based.^*  This 
remedy  protects  every  right  of  the  respondent  and  enables  him  to 
have  inserted  all  that  is  essential  to  show  the  correctness  of  the 
ruling,  if  the  facts  appearing  upon  the  trial  establish  such  result. 

We  think  that  the  appellant  in  this  case  complied  with  the  pro- 
visions of  the  code  and  the  rules,  and  the  settled  practice  there- 
under, as  adjudicated  in  the  numerous  decisions  which  have  arisen 
upon  the  question. ^^ 

It  follov/s  that  the  motion  should  be  denied,  with  ten  dollars 
costs  and  disbursements,  with  leave  to  the  respondent  to  serve  such 
proposed  amendments  to  the  case  as  he  shall  be  advised. 

All  concurred. 


^Stuart  v.  Binsse,  3  Bosw.  (N.  Y.  Super.  Ct.)  6^7  (i8^g)  ;  Tyng  y.  Marsh, 
<^i  How.  Pr.  (N.  Y.)  46s  (1876)  ;  M.  K.  &  T.  R.  Co.  v.  Roach,  18  Kans.  592 
(1877)  ;  RcnvAck  v.  Elevated  R.  Co.,  59  N.  Y.  Super.  Ct.  96,  13  N.  Y.  S.  600 
(1891)  ;  Warhurton  v.  Ralph,  9  Wash.  537,  38  Pac.  140  (1804) 

^'See  further  Jackson  ex  dem.  Field  v.  Sinclair,  4  Cow.  (N.  Y.)  43 
(1825)  ;  Jackson  v.  Harrington,  4  Cow.  (N.  Y.)  537  (1825)  ;  Green  v.  Russell, 

I  How.  Pr.  (N.  Y.)  8  (1844)  ;  Johnson  v.  Whitlock,  13  N.  Y.  344,  12  How. 
Pr.  (N.  Y.)  571  (1856)  ;  Smith  v.  Grant,  15  N.  Y.  590  (1857)  ;  Westcott  v. 
Thompson,  16  N.  Y.  613  (1858)  ;  Graham  v.  Stewart,  68  Cal.  374,  9  Pac.  555 
(1886)  ;  Sullivan  v.  Thomas,  3  S.  Car.  531  (1872)  ;  Tuxhury  v.  French,  39 
Mich.  190  (1878);  Mnllaney  v.  Humes,  47  Kans.  99,  27  Pac.  817  (1891); 
People  v.  Featherly,  131  N.  Y.  597,  30  N.  E.  48  (1892)  ;  Delaney  v.  Valentine, 

II  App.  Div.  316,  42  N.  Y.  S.  571  (1896)  ;  Parrault  v.  Marsant,  9  Kans.  App. 
419,  58  Pac.  1027  (1809)  ;  Gregory  v.  Clark,  53  App.  Div.  74,  65  N.  Y.  S.  687 
(1900)  ;  IJ'ierichs  v.  Innis,  32  Misc.  462,  66  N.  Y.  S.  553,  8  N.  Y.  Ann.  Cas. 
122  (1900)  ;  Harvin  v.  Blackman,  108  La.  426,  32  So.  452  (1901)  ;  Savage  v. 
Potter,  159  App.  Div.  729,  145  N.  Y.  S.  78  (1913)  ;  Jermyn  v.  Searing,  160 
App.  Div.  832,  146  N.  Y.  S.  57  (1914)  ;  Dunlap  v.  Rumph,  43  Okla.  491,  143 
Pac.  329  (1914)- 

In  Thompson  v.  Fulton,  29  Okla.  700,  119  Pac.  244  (1911),  it  is  said,  per 
V.'^illiams,  J. :  "A  case-made  is  solely  a  creature  of  the  statute,  and  whilst 
more  comprehensive  than  a  bill  of  exceptions,  is  a  substitute  therefor.  The 
office  of  a  bill  of  exceptions  and  that  of  a  case-made  are  very  dissimilar.  The 
former  is  frenerally  to  bring  up  the  record  to  review  a  decision  of  the  court 
upon  a  matter  of  law  which  the  record  would  otherwise  not  show,  in  which 
case  it  must  be  reduced  to  writing,  allowed,  signed,  and  filed  at  the  term  that 
the  decision  complained  of  is  made,  except  where  the  statute  permits,  on 
order  of  the  court,  the  allowing,  signing  and  filing  same  out  of  term  time. 
Neither  the  pleadings  nor  the  judgment  nor  orders  of  the  court  may  properly 
be  included  in  a  bill  of  exceptions ;  nor  are  any  of  the  parties  entitled  to 
notice  of  presentation  for  allowance.  When  filed,  it  becomes  a  part  of, the 
record,  and  is  brought  up  by  transcript,  which  must  include  the  other  parts  of 
the   record.    As   to  the  case-made,   it  may  be   settled,   signed,   and   allowed 


S(>0  ArrKAL    AND    KKROR 

ATKINSON  V.  PEOPLE'S  NAT.  BANK  OF  WATERVILLE 

Supreme  Judicial  Court  of  Maine,  1893 

85  Maine  368 

Tliis  was  a  writ  of  error  to  reverse  a  jud£:r"icnt  recovered  in  the 
Superior  Court  for  Kennebec  County,  against  the  plaintiff  in  error 
by  the  defendant  in  error  at  the  December  term,  1882.  The  defend- 
ant pleaded  in  nullo  est  erratum,  which  was  joined  by  the  plaintiff. 

The  errors  alleged  are:  First,  the  writ  in  said  suit  in  which 
judgment  was  rendered  was  not  signed  by  the  clerk  of  the  superior 
court  and  the  proceedings  are  void,  having  no  legal  foundation  what- 
ever; second,  the  court  rendering  said  judgment  had  no  jurisdiction, 
to  render  the  same,  the  process  upon  which  it  was  rendered  being 
void  for  want  of  a  legal  writ,  said  writ  not  having  been  signed  by 
the  clerk  of  the  court  which  rendered  said  judgment. 

The  original  writ  bears  date  January  5,  1882,  and  purported  to 
be  signed  by  \V.  M.  Stratton,  who,  defendants  admitted  w\as  not 
clerk  at  that  time,  and  whose  term  of  ofBce  had  expired  more  than 
a  vear  previously. ^^ 

'  Emery,  J.:  At  common  law  tlie  usual  writ  of  error  (coram 
vobis)  issued  out  of  the  writ  office  in  chancery  to  the  court  whose 
record  in  the  particular  case  was  to  be  examined,  and_  commanded 
that  court  to  send  the  record  and  process  in  the  case  wnth  all  things 
touching  them  (and  also  to  return  the  writ  itself),  into  some  other 
court,  usually  the  king's  bench,  for  examination  and  judgment.  Thus 
the  writ  partook  of  a  dual  nature.  It  operated  as  a  writ  of  certio- 
rari to  the  inferior  court  to  send  up  its  record  and  proceedings  in 
the  case,  and  it  also  operated  as  a  commission  to  the  superior  court 
to  inquire  into  and  determine  the  legality  of  such  record  and  pro- 
ceedings. 

After  the  return  of  the  writ  with  the  record  and  proceedings  of 
the  inferior  court,  into  the  superior  court,  the  latter  court  issued  its 
own  writ  of  scire  facias  to  the  defendant  in  error.  Upon  the  return 


bej-ond  the  trial  term  and  in  vacation,  but  it  must  be  complete  in  itself;  the 
pleadinps,  judjxment,  and  orders  of  the  court  to  be  incorporated  therem. 
It  must  contain  the  matters  of  record,  as  well  as  the  proceedings  not 
entered  on  the  record.  To  present  errors  for  review  the  case-made  must 
embody  a  statement  of  so  much  of  the  issue,  proceedings  and  evidence,  or 
other  matters  in  the  action,  as  may  be  necessary  to  bring  to  the  notice  of 
the  ap.pellate  court,  from  an  examination  of  the  paper  settled  and  authenti- 
cated as  a  case-made,  the  errors  complained  of.  The  object  of  the  case-made 
is  to  reduce  the  size  of  the  record,  eliminating  all  matters  immaterial  to  the 
question  sought  to  have  reviewed." 

On  the  settlement  of  a  case  on  appeal  there  was  a  dispute  between 
counsel  as  to  whether  a  certain  colloquy  took  place  on  the  trial.  The  trial 
judge  decided  from  his  recollection  that  such  a  colloquy  had  occurred 
although  it  did  not  appear  in  the  stenographer's  minutes.  The  appellate 
court  refused  to  interfere  with  such  determination.  Burke  v.  Baker,  104  App. 
Div.  26,  93  X.  Y  S.  215  (1Q03). 

**Part  of  the  statement  of  facts,  the  arguments  of  counsel  and  part  of  the 
opinion  of  the  court  are  omitted. 


ATKINSON    V.    people's    NAT.    BANK  86l 

of  this  writ  of  scire  facias,  the  pleadings  were  made.  The  plaintiff 
assigned  errors,  and  the  defendant  pleaded  in  nuUo  est  erratum,  or 
some  other  appropriate  plea. 

If  the  return  made  upon  the  original  writ  of  error  did  not  in- 
clude the  entire,  completed  record  and  proceedings  in  the  case,  the 
superior  court,  upon  the  suggestion  of  either  party,  would  issue  a 
special  writ  in  the  nature  of  a  writ  of  certiorari  to  the  inferior  court 
to  send  up  the  omitted  portions. ^^  The  superior  court  would  also 
issue  this  special  writ  of  its  own  motion  in  order  to  supply  omissions 
and  obtain  enough  to  show  a  valid  record.  The  pleadings  did  not 
properly  begin  until  the  entire,  completed  record  had  been  obtained. 

In  this  case  the  transcript  is  very  fragmentary.  The  plaintiff 
offered  only  a  transcript  of  an  "abbreviated  record,"  such  as  is 
named  in  section  ii  of  chapter  79,  R.  S.,  together  with  a  copy  of  the 
original  process  and  the  officer's  return  thereon.  The  defendant 
offered  only  a  copy  of  the  docket  entries  and  a  copy  of  the  pleas.  We 
have  repeatedly  held  that  the  court  will  not  pronounce  a  judgment 
erroneous  v/here  only  the  abbreviated  record  permitted  in  section 
II,  chapter  79,  R.  S.,  is  produced.  Tyler  v.  Erskine,  78  Maine  91 ; 
Lewiston  Steam  Mill  Co.  v.  Merrill,  78  Maine  107.  That  abbre- 
viation may  suffice  as  evidence  of  a  judgment  where  it  is  only 
sought  to  prove  its  existence.  Where,  however,  it  is  sought  to  re- 
examine the  proceedings  and  reverse  the  judgment  for  error,  there 
must  be  a  full  unabridged  record  made  up  so  that  all  the  proceed- 
ings may  be  seen.  Such  a  record,  according  to  Blackstone,  com- 
prises "the  original  writ,  and  summons,  all  the  pleadings,  the  dec- 
laration, view  or  oyer  prayed,  the  imparlances,  plea,  replication,  re- 


^'  "If  the  Judges  of  the  common  pleas,  or  other  judges,  upon  a  writ  of 
error,  will  not  certify  all  the  record,  the  party  that  sues  the  writ  of  error 
may  allege  diminution  of  the  record,  and  pray  a  writ  to  the  justices  that 
certified  the  record  before,  to  certify  the  whole  record."  Bacon's  Abridgment, 
Error  (e)  ;  Fitz.  N.  B.  25  a;  Yates  v.  Windham,  Cro.  Eliz.  155  (1588); 
Meredith  v.  Davies,  I  Salk.  270  (1711)  ;  Andrews  v.  Bosworth,  3  Mass.  223 
(1807);  pawning  V.  Baldwin,  I  Serg.  &  R.  (Pa.)  298  (1815)  ;  B_assler^w. 
Nie<!ly,  ^  "^^fg  Xr  |^  f  pa  )  472  (.1815;  ;  SeagravevrLacy,  28  Pa.  Super.  Ct.  586 
(1905).  The  appellate  court  is,  in  the  absence  of  a  statute,  with(5uF power  to 
materially  amend  the  record.  Hutchinson  v.  Crossen,  10  Mass.  251  (1813); 
Thatcher  v.  Miller,  13  Mass.  270  (1816)  ;  Wood  v.  Newkirk,  15  Ohio  St.  295 
(1864) ;  Wells  V.  Smith,  49  W.  Va.  78,  38  S.  E.  547  (1901)  ;  Tighe  v.  Mary- 
land C.  Co.,  216  Mass.  459,  103  N.  E.  941  (1914)  ;  Murphy  v.  Milford,  210 
Fed.  135  (1914).  But  may  remand  for  correction.  Mcrriam  v.  Mcrriam, 
6  Cush.  (Mass.)  91  (1850)  ;  Stickle  v.  Haskins,  54  Mich.  130,  19  N.  W.  919 
(1884)  :  Wain  y.  Beaver,  i6iJ^a^l^6o.S,  29  Atl.  114  (1894)  ;  Fitssirmnons  w. 
Robb.  177,  Pa.  St.  645,  .'U  Atl.  233  (1896)  ;  Hobbs  v.  National  Rank  of  Com- 
merce of  Kansas  City,  93  Fed.  615  (1899)  ;  Withcrhee  v.  Taft,  47  App.  Div. 
627,  62  N.  Y.  S.  242  (1900).  Or  by  certiorari  require  the  return  of  a  com- 
plete transcript.  Colden  v.  Knickcrbackcr,  2  Cow.  (N.  Y.)  31  (1823); 
Kanoiise  v.  Martin,  2  How.  Pr.  (N.  Y.)  252  (1846)  ;  Apgar  v.  Hillcr,  24  N.  J. 
L.  808  (1854)  ;  Robinson  v.  Varncll,  16  Tex.  382  (1856)  ;  Szveeny  v.  Lommc, 
22  Wall.  (U.  S.)  208,  22  L.  ed.  727  (1874)  ;  Flagg  v.  Searle^  2I_L.  I.  (Pa.) 
loi  (1874);  Rohrbaugh  v.  Bennett,  30  W.  Va.  1857  3  S.  E.  593  T1887TT 
Mathews  v.  Booyc,  58  N.  J.  L.  593,  34  Atl.  754  (1896)  ;  Allen  v.  McLendnn, 
113  N.  Car.  319,  18  S.  E.  205  (1893)  ;  Wyatt  v.  Crowder,  112  Ga.  168,  2>7  S.  E. 
380  (1900)  ;  Spedden  v.  Baltimore  Refri-geraiing  &  Heating  Co.,  117  Md.  443, 
84  Atl.  150  (1912-). 


862  APPEAL   AND   EKROR 

joinder,  continuances  and  whatever  other  proceedings  have  been 
had ;  all  entered  verbatim  on  the  roll;  also  the  issue  or  demurrer  and 
joinder  therein."  3  Bl.  317. 

Either  party  can  require  the  clerk  of  tiie  court  to  extend  the 
record  without  abbreviation,  and  give  him  a  transcript  of  such  com- 
plete record. 

If  such  a  record  were  made  and  presented  by  transcript  in  this 
case,  it  may  appear  that  the  matters  specified  as  errors  in  the  orig- 
inal process  and  the  return  thereon,  were  completely  waived  and 
cured  by  tlie  defendant's  appearance  and  pleading  directly  in  bar  to 
tlie  declaration  w^ithout  interposing  any  plea  in  abatement  or  motion 
to  dismiss.  We  think,  therefore,  we  should  not  pronounce  judg- 
ment upon  the  record  until  the  complete  unabbreviated  record  is 
brought  before  us.°^ 

The  plaintiff  in  error  has,  however,  submitted  his  case  upon  the 
transcript  and  copies  produced  by  him.  These,  as  above  explained, 
do  not  necessarily  shovr  any  error;  hence  his  writ  of  error  should 
be  dismissed. 

Writ  dismissed.   Plaintiff  nonsuit. 

All  concur. 


^^Unless  otherwise  provided  by  rule  of  court  or  statute  the  case  must  be 
presented  to  the  appellate  court  on  a  transcript  of  the  full,  unabridged 
record.  Tyson  v.  Hylyard,  2  Ld.  Raym.  1 122  (1704)  ;  Curtis  v.  Petitpain,  59 
U.  S.  109,  15  L.  ed.  280  (1855)  ;  Miller  v.  Thomas,  78  Cal.  509,  21  Pac.  11 
(1889);  Kcisiu'ender  v.  James,  41  Kans.  463,  21  Pac.  573  (1889)  ;  Litchford 
v.  Day,  87  Va.  71,  12  S.  E.  107  (1890)  ;  Lazvson  v.  Mills,  150  Mo.  428,  51  S.  W. 
678  (1S99)  ;  Mctzger  v.  Woolridge,  183  111.  174,  55  N.  E.  694,  75  Am.  St.  100 
(1899).  Statutes  have  provided  for  abbreviating  the  record  under  various 
names  such  as  "abstract  of  the  record,"  "case  settled,"  "case  made,"  etc. 
N.  Y.  Code  Civ.  Pro.,  §§  997,  1339,  1353;  Bissel  v.  Hamlin,  20  N.  Y.  519 
(1859)  ;  Raihvav  Co.  v.  Stezvart,  95  U.  S.  279,  24  L.  ed.  431  (1877)  ;  Graham 
V.  Stezi-arf,  68  Cal.  374,  9  Pac.  555  (1886)  ;  Zv.ckcr  v.  Bhimcnthal,  58  N.  Y.  S. 
318  (1899);  Barton  v.  Tzi'ohy  Mercantile  Co.,  104  Wis.  420,  80  N.  W.  739 
(1899)  ;  Wierichs  v.  Innis,  32  Misc.  462,  66  N.  Y.  S.  553,  8  N.  Y.  Ann.  Cas. 
122  (1900)  ;  Atchison,  T.  &  S.  F.  R.  Co.  v.  Conlon,  77  Kans.  324,  94  Pac.  148 
(1908)  ;  Electric  Welding  Co.  v.  Prince,  200  IMass.  386,  86  N.  E.  947  (1909). 
But  while  the  details  of  the  specific  requirements  are  controlled  by  the  local 
statutes  and  rules,  it  is  a  general  principle  tliat  the  record,  transcript  or  case 
must  be  complete  in  itself,  containing  all  matters  necessary  for  an  intelligent 
review  by  the  appellate  court  of  the  errors  alleged.  Darrozv  v.  Langdon,  20 
Conn.  288  (1850);  Brindle  v.  Brindle,  50  Pa.  St.  387  (1865);  Glidden  v. 
Packard,  28  Cal.  649  (1865);  Ehrman  v.  Rothscliild,  23  Hun  (N.  Y.)  273 
(1880)  ;  U'erlan  v.  SchoUctt,  63  Tex.  227  (18S5)  ;  Raimond  v.  Terrebonne 
Parish,  132  U.  S.  192,  33  L.  ed.  309  (1889)  ;  Haynes  v.  Cape  May,  52  N.  J.  L. 
180,  19  Atl.  176  (1889)  ;  Perry's  Estate,  42  S.  Car.  183,  20  S.  E.  84  (1894)  ; 
Adams  v.  Bement,  96  Ky.  334,  29  S.  W.  22,  16  Ky.  L.  676  (1894)  ;  Cook  v. 
Challis,  =;q  Kans.  363,  40  Pac.  643  (1895)  ;  h'inrh  v.  Cn7}irnAii^-Ji^J27i  SL.S^'^j 
26  Atl.  368  (1893)  ;  IVondzi'ard  v.  Hrixt,  t8o  Pa.  St.  l6l^^^6Atl.  645  (1897)  I 
White  v.  White,  169  Mass.  52,  47  N.  E.  499  (1897)  ;  Inhabitants  of  Nezu  Bar- 
horough  v.  Brezver,  170  Mass.  162  (1898)  ;  McLaughlin  v.  Davis,  64  N.  J.  L. 
360,  45  Atl.  067  (1899)  ;  Corsiglia  v.  Bnrnham,  189  Alass.  347,  75  N.  E.  253 
(1905)  ;  National  Lumber  Co.  y.  Mchaffey,  ^,0  Pa  .Siippr.  Ct.  544  (1906)  ; 
Doust  v.  l^ocky  Mountain  bell  1  elephond  Co.,  14  Idaho  677,  95  Pac.  209 
(1908)  ;  Caldwell  v.  Klyce,  80  Wash.  469,  141  Pac.  1042  (1914). 

For  modem  English  practice  see  Rules  of  Supreme  Court,  Order  LVIII, 
rule  II. 


LAMY   V.    LAMY  863 

SECTION  5.     ASSIGNMENTS  OF  ERROR 

LAMY  V.  LAMY 

Supreme  Court  of  New  Mexico,  1887 

4  N.  Hex.  43"' 

Long,  C.  J. :  This  cause  is  here  by  writ  of  error  under  section 
2194  of  the  Compiled  Laws.  Praecipe  for  writ  was  filed  August  25, 
and  it  issued  September  30,  A..  D.  1885.  A  transcript  of  the  pro- 
ceedings in  the  court  below  was  filed  with  the  clerk  of  this  court, 
and  the  cause  docketed  December  23,  18S5.  The  Supreme  Court,  at 
its  last  term,  convened  on  the  fourth  day  of  January,  A.  D.  1886, 
and  on  the  second  day  of  that  term  the  defendant  in  error  appeared, 
and  on  the  same  day  leave  was  asked  by  the  plaintiff  for  time  in 
which  to  file  brief,  and  it  was  given.  On  the  eighth  day  of  January, 
within  the  time  so  extended,  plaintiff  filed  his  brief.  To  that  d.d.\e: 
tliere  was  no  assignment  of  error,  and  four  days  of  the  term  had 
expired.  The  printed  brief  is  in  the  usual  form.  Its  title  page  con- 
tains the  name  of  the  court  and  the  term  wherein  the  cause  is  pend- 
ing, and  the  words  "Brief  of  Plaintiff  in  Error,"  with  the  signa- 
ture of  the  solicitor  who  appeared  for  him.  The  brief  contains 
subdivisions  printed  under  prominent  headlines  as  follows :  "State- 
ment of  the  Cause,"  "Assignment  of  Errors,"  "Points  and  Authori- 
ties." Following  the  first  subdivision  is  a  narration  of.  the  proceed- 
ings in  the  court  below  as  shown  by  the  records.  Under  the  words 
"Assignment  of  Errors"  is  a  statement  that  the  court  below  erred 
in  six  particulars,  which  are  named,  and  then  follow  the  points  and 
authorities  relied  upon,  and  the  signature  of  the  plaintiff's  solicitor  as 
such. 

It  is  not  contended  by  plaintiff'  that  the  cause  was  not  returnable 
at  the  January  term,  A.  D.  1886,  but  he  claims  that  his  brief  is, 
in  legal  effect,  an  assignment  of  errors ;  and,  although  not  filed 
until  the  fourth  day  of  that  term,  the  court  should  not  for  that 
reason  disregard  it.  On  the  other  hand,  the  defendant  moves  to  dis- 
miss the  writ  for  the  alleged  reason  tliat  plaintiff  did  not  assign  error 
on  or  before  the  first  day  of  the  January  term,  A.  D.  1886;  and  the 
question  for  the  court  now  to  determine  is  whether  or  not  this  mo- 
tion shall  be  sustained. 

It  is  clear  that  error  was  not  assigned  "on  or  before  the  first 
day  of  the  term  at  which  the  cause  is  returnable."  There  is  no  claim 
or  pretense  of  assignment  within  that  time.  Unless  the  contents 
of  the  brief  can  be  regarded  as  an  assignment  of  error,  there  is  none 
at  this  time. 

Can  the  brief  be  treated  as  such  an  assignment  as  the  law  re- 
quires? Bouvier  defines  a  brief  to  be  "an  abridged  statement  of 
the  party's  case,"  "a  summary  of  the  points  or  questions  in  issue." 

""Part  of  the  opinion  is  omitted.  A  motion  to  reconsidGr  was  overruleo' 
Territory  v.  Ashenfelter,  4  N.  Mex.  93,  12  Pac.  879. 


8()4  Arrr.AT.  and  f.rror 

"This  statement  sluniUl  be  perspicuous  ami  concise."  In  general 
los^al  usajje.  a  brief  is  in  no  sense  a  pleatlinji^.  It  contains  a  state- 
ment of  the  facts  shown  by  the  record,  and  tlie  points,  authorities, 
and  arg^uments  rehed  upon  to  sustain  the  contention  presented  for 
consideration.    It  is  in  the  nature  of  an  argument. 

W'liat  is  an  assignment  of  error?  "In  practice,  the  statement 
of  the  case  of  the  i^laintiff,  setting  forth  the  errors  complained  of. 
It  corres])onds  with  the  declaration  in  ordinary  actions.*"*  All  the 
errors  of  which  the  plaintiff  complains  should  be  set  forth  and  as- 
signed in  distinct  terms,  so  that  the  defendants  may  plead  to  them." 
Bouv.  197.  "An  assignment  in  error  is  in  the  nature  of  a  declara- 
tion, and  is  either  of  errors  in  fact,  or  errors  of  law."  2  Tidd  Pr. 
1 168.  "To  an  assignment  of  errors  the  defendant  may  plead  or  de- 
mur." 2  Tidd  Pr.  1173.  "Issue  being  joined  in  error,  the  proceed- 
ings are  entered  of  record."  2  Tidd  Pr.  1175,  1176.  "In  the  house 
of  lords,  when  the  defendant  hath  joined  in  error,  the  cause  is  set 
down  to  be  heard  in  turn." 

The  author  of  Powell  on  Appellate  Proceedings,  after  discussing 
the  manner  in  which  cases  may  be  carried  into  the  appellate  court, 
proceeds :  "The  next  matter  in  the  course  of  procedure  is  the  plead- 
ings of  the  parties  preparatory  to  their  coming  to  a  hearing.  These 
pleadings  consist,  on  the  part  of  the  plaintiff,  of  his  assignment  of 
those  errors  of  which  he  complains,  and,  on  the  part  of  the  defend- 
ant, his  pleas  or  answers  thereto."  "Assignment  of  error  is  as  in- 
dispensable in  these  proceedings  as  a  declaration  and  cause  of  action 
in  the  original  cause."  Powell,  App.  Proc.  277.  To  the  errors  so 
assigned  the  defendant  must  plead  or  demur  within  the  time  allowed 
by  the  rules  of  the  court.  Powell,  App.  Proc.  280. 

In  Hinkle  v.  Shelley,  100  Ind.  89,  it  is  held:  "In  this  court  the 
assignment  of  error  is  the  complaint  of  the  appellants,  and,  like  a 
complaint  in  the  trial  courts,  it  must  be  good  as  to  all  who  join 
therein,  or  it  will  be  good  as  to  none."  See  also  Rohhins  v.  Magee, 
96  Ind.  176,  to  the  same  point. 

"An  assignment  of  error  is  indispensable.  It  is  a  pleading  upon 
which  an  issue  is  to  be  made  by  demurrer,  joinder  or  plea."  Wells  v. 
Martin,  i  Ohio  St.  388. 

Authorities  to  the  same  effect  could  be  multiplied.  It  is  appar- 
ent that  an  assignment  of  error  is  in  the  nature  of  a  pleading,  and, 
while  it  might  properly  be  copied  into  the  brief  as  a  part  of  the  state- 
ment of  the  cause,  it  should  be  made  in  some  more  formal  way.  It 
may  be  much  doubted  whether  it  is  good  or  ])ermissible  practice  to 
omit  a  formal  assignment,  relying  on  the  recitals  of  the  brief  to 
supply  the  omission.^^ 


*"Accord:  Williston  v.  Fisher,  28  III.  43  (1862)  ;  Kinnon  v.  Louisville  & 
N.  R.  Co.,  187  Ala.  480,  65  So.  397  (1914)  ;  Live  Stock  L  Assn.  v.  Edgar 
56  Ind.  App.  489,  105  N.  E.  641  (1914). 

•^The  brief  or  paper  book  is  no  part  of  tbe  record,  but  a  convenient  mode 
of  presenting  the  case  for  the  consideration  of  the  court.  Errors  assigned 
in  the  brief  only  will  not  be  considered.  Armstrong's  Appeal,  68  Pa.  St.  409 
(  1871)  IVitherspoonw.  Crawford  (Tex.  Civ.  App.;,  i53'S7"W.6j3  (1912).  And 
'  f-nerally  the  assignments  of  error  must  be  incorporated  in  the  record.    Gibhs 


LAMY   V.    LAMY  865 

It  is  not  necessary  to  decide  whether  the  plaintiff's  brief  con- 
stituted an  assignment  of  errors,  as  that  was  not  filed  until  the  fifth 
day  of  tlie  term.  It  is  apparent,  however,  from  the  authorities  cited, 
that  the  assignment  of  errors  is  in  the  nature  of  a  pleading.  It 
is  the  foundation  of  the  plaintiff's  cause  in  this  court,  and  without 
it  he  can  have  no  standing  here.  To  this  assignment  the  court  must 
look  for  the  questions  to  be  determined.  Upon  it  the  issue  is  made. 
In  this  cause  there  is  no  record  of  any  such  pleading.  There  is  no 
application  to  the  court,  showing  an  excuse  for  omitting  to  assign 
errors  at  an  earlier  day,  for  leave  to  now  assign  them. 

It  is,  however,  contended  by  plaintiff  that  the  recital  in  the 
brief  is  at  least  evidence  that  an  effort  was  made  in  good  faith  to 
comply  wdth  the  statute,  and  therefore  that  good  cause  is  shown  for 
a  failure  to  make  a  strict  compliance  therewith.  If  the  defendant's 
motion  were  to  dismiss  because  no  assignment  of  error  was  made 
on  the  fifth  day  of  the  term,  the  argument  might  have  some  force. 
It  is  not,  however,  perceived  how  an  effort  to  assign  errors  on  the 
fifth  day  of  the  term  can  constitute  any  excuse  for  failure  to  do  so 
on  the  first  day.  Ten  days  passed  between  the  date  when  the  tran- 
script was  filed  and  the  commencement  of  the  term,  and  no  reason 
whatever  is  given  for  failure,  within  this  period,  to  make  the  neces- 
sary assignment.  In  addition,  four  more  days  passed,  and  no  leave 
was  asked  for  time  within  which  to  assign  errors,  nor  was  any  cause 
shown  why  they  were  not  assigned  before,  nor  cause  given  for  de- 
lay. The  interests  of  the  bar  and  of  litigants  will  be  best  stibserved 
by  holding  a  reasonably  strict  rule ;  otherwise,  a  lax,  irregular  prac- 
tice will  prevail,  tending  to  confusion  and  delay.  The  requirements 
of  the  statutes  are  in  such  clear  terms  as  to  preclude  misapprehen- 
sion. The  authorities  define  beyond  doubt  the  character  and  office 
of  an  assignment  of  error.  Under  such  conditions,  the  failure  to 
comply  with  a  clear  and  obvious  requirement  can  not  constitute 
such  an  excuse  as  to  invoke  the  discretion  of  the  court  to  relax  the 
rule  of  the  statutes.  Discretion  can  not,  or  at  least  should  not,  be 
exercised  so  as  to  create  delay,  without  facts  upon  which  to  predi- 
cate the  excuse  of  discretion. 

The  motion  of  the  defendant  is  sustained,  the  writ  of  error  is 
dismissed,  and  the  costs  occasioned  thereby  taxed  against  the 
plaintiff.^- 

Brinker  and  Henderson,  JJ.,  concur. 


V.  Black-well,  40  111.  51  (1867)  ;  Deputy  v.  Hill,  85  Ind.  75  (1882)  ;  Cameron  v. 
Roemele,  59  Tex.  238  (1883)  ;  Moore  v.  Hammons,  iig  Ind.  510,  21  N.  E.  iiii 
(1889)  ;  Schmitz  v.  Hcgcr,  5  N.  Dak.  165,  64  N.  W.  943  (1895)  ;  Martin  v. 
Terry,  6  N.  Mex.  491,  30  Pac.  951  (1892).  In  some  jurisdictions  a  statement 
of  the  errors  in  the  brief  is  sufficient.  McRcavy  v.  Eshleman,  4  Wash.  757, 
31  Pac.  35  (1892)  ;  Haiigh  V.  Tacoma,  12  Wash.  386,  41  Pac.  173  (1895)  ; 
Donnell  M.  Co.  v.  Hart,  40  Mo.  App.  512  (1890)  ;  Davis  v.  Barada-Ghio  Real 
Estate  Co.,  163  Mo.  App.  328,  143  S.  W.  1108  (1911),  semble. 

"'The  general  rule  is  that  questions  not  presented  by  the  assignments  of 
error  will  not  be  considered.  Prescott  v.  Tarbcll,  i  Mass.  204  (1804)  ;  Pem- 
broke V.  Abiugton,  2  Mass.  142  (1806)  ;  Moody  v.  Vreeland,  7  Wend.  (N.  Y.) 
55  (1831)  ;  tucker  v.  Ellis,  i  Ark.  273  (1839)  ;  Adams  v.  Mtinson,  3  How. 
(Miss.)     -/J    (1838);    Martin    v.    Russell,    4    111.     (3    Scam.)     342    (1841)  ; 

55 — Civ.  Proc. 


866  APPEAL   AND   ERROR 

CAYUGA  BUILDING  &  LOAN  ASSN.  v.  MacMULLEN 

Superior  Court  of  Pennsylvania,  191 1 

46  Pa.  Super.  Ci.  94 

Rice,  P.  J. :  The  single  assig-nment  of  error  is  that  the  court 
erred  in  dismissing  the  appellant's  exceptions  to  the  auditor's  findings 
of  fact  and  conclusions  of  law.  Nineteen  exceptions  were  filed  by 
tlie  appellant,  some  to  findings  of  fact,  others  to  conclusions  of 
law,  and  others  to  the  refusal  of  certain  findings  and  conclusions 
requested  by  him.  It  is  contended  in  tlie  appellee's  paper  book  that 
the  assignment  should  be  disregarded  because  it  is  in  violation  of 
rule  xiv  of  this  court,  which  provides  as  follows:  "Each  error 
relied  on  must  be  assigned  particularly,  and  by  itself.  If  any  assign- 
ment embrace  more  than  one  point,  or  refer  to  more  than  one  bill 
of  exceptions,  or  raise  more  than  one  distinct  question,  it  shall  be 
considered  a  waiver  of  all  the  errors  so  alleged."  Notwithstanding 
this  objection  was  thus  brought  to  the  notice  of  the  appellant,  no 
motion  was  made  to  remove  it  by  amendment.  The  objection  is 
substantial  and  not  merely  technical.  The  rule  is  an  important  one 
and  has  been  enforced  in  numerous  instances  by  this  court,  and  a 
similar  rule  has  been  enforced  many  times  by  the  Supreme  Court.  A 


Wells  V.  Martin,  1  Ohio  St.  3S6  (1853)  ;  Hollingsworth  v.  State,  8  Ind.  257 
(1856)  ;  Sjnith  v.  Williams,  36  Miss.  545  (1858)  ;  Ives  v.  Finch,  28  Conn.  112 
(1859)  ;  Huiton  v.  Reed,  25  Cal.  478  (1864)  ;  Bnrnham  v.  Van  Gelder,  32  Mich. 
490  (1875)  ;  State  v.  Lewis,  39  N.  J.  L.  501  (1877)  ;  Weissman  v.  Russell,  10 
Ore  73  (1882);  Williams  V.  Riley,  88  Ind.  290  (1882);  Ditch  v.  Sennott, 
116  II'  288,  5  N.  E.  395  (1886)  ;  Wood  v.  Whitton,  66  Iowa  295,  19  N.  W.  907 
(18S5)  ;  Freeman  v.  Rhodes,  36  Minn.  297,  30  N.  W.  891  (1886)  ;  McNeill  v. 
Kyle,  86  Ala.  338,  5  So.  461  (1888)  ;  Lang  v.  Max,  50  111.  App.  465  (1893)  ; 
Speers  V.  Knarr,  4..Pn,.  .Super.  Ct.  80  (1897)  ',  Grimm  v.  Washburn,  100  Wis. 
229  79  N.  W.  984  (1S98)  ;  Watson  v.  Le  Grand  Rink  Co.,  177  HI.  203,  52  N.  E. 
317'  (1898);  Collins  V.  Carr,  in  Ga.  867,  36  S.  E.  959  (1900);  Cammon- 
r..^nnUvrhi-fn^J2  "P=^-  Simer.  Ct  zi20  (1907)  ;  Axel  v.  Kracmer,  75  N.  J.  L. 
558707^17367  (1908)  ;  Hoivard  v.  .Sii-'issvale  Bor.,  216  Pa.  368,  65  Atl.  814 
(1907)  ;  rnn^r_y_  Wpjr.  2T7  Pa.  %2i.  66  Atl.  ^^o  (1907)  I  Harper  Machinery  Co. 
V  Ryan  Vnniack  Co.,  85  Conn.  359,  82  Atl.  1027  (1912);  Wood  v.  Wilbert, 
226  tJ.  S.  384,  57  L.  ed.  264  (1912)  ;  Bcnz  v.  Central  R.  R.  of  N.  J.,  82  N.  J.  L. 
197,  82  Atl.  431  (1912)  ;  Prosser  v.  Mauley,  122  Minn.  448,  142  N.  W.  876 
(1913);  Burpee  v.  Burpee,  109  Maine  379,  84  Atl.  648  (1912);  Nelson  v. 
Timber  Co.,  66  Ore.  570,  133  Pac.  1167  (1913)  ;  Cass  v.  Duncan,  260  111.  228, 
103  X.  E.  280  (1913)  ;  Maliny.  James,  244  Pa.  336,  90_Atl.  714  (1914)-  The 
appellate  court  may,  nevertheless,  notice  plain  errors  apparent  on  the  face  of 
the  record,  although  not  assigned.  Castledine  v.  Mundy,  4  B.  &  Ad.  90  (1832)  ; 
Crandall  v.  State,  10  Conn.  339  (1834)  ;  Gittings  v.  Baker,  2  Ohio  St.  21 
(1853)  ;  Arthurs  v.  Smathers,  38  Pa.  St.  40_(i86o)  ;  Louisiana  v.  Bahse,  38 
La 'Ann. '542  (1886)  ;  Richardson  v.  Knox,  14  Te'x.  Civ.  App.  402,  37  S.  \V. 
189  (1896)  ;  Newell  v.  West,  149  Mass.  520,  21  N.  E.  954  (1889)  ;  Huntsman 
V.  Linville  River  Lumber  Co.,  122  N.  Car.  583,  28  S.  E.  838  (1898)  ;  United 
States  V.  Pena,  175  U.  S.  500,  44  L-  ed.  251  (1899)  ;  The  Myrtie  M.  Ross,  360 
Fed.  19  (1908)  ;  rnW^_v_^/^^«7 ,  ^99.  Pa  t^6.  70  Aa  10^^  (1908)  ;  White  v. 
United  Stares,  202"Tea7~5orTi9i3)-  CompsLveMcUdtHrick  v.  Slevm,  43  Ind. 
522  (1873)  ;  Hughes  v.  Decker,  38  Maine  153  (1854) ;  Lane  v.  Taylor,  40  Ind. 
495  (1872). 


WALKER   V.    WATERBURY  86/ 

careful  examination  of  the  auditor's  report  and  the  evidence  ad- 
duced before  him  leads  us  to  the   conchision  that  no   substantial 
wrong  to  the  appellant  will  result  if  we  enforce  it  in  the  present 
case,  as  we  are  dictinctly  asked  to  do  by  appellee's  counsel. 
Appeal  quashed.^^ 


WALKER  V.  WATERBURY 

Supreme  Court  of  Errors  of  Connecticut,  1908 

81   Conn.  13 

Action  against  the  city  of  Waterbury  and  the  Hellmann  Brew- 
ing Company  for  tlie  diversion  by  the  city  of  a  water-course,  and  by 
the  company  of  another  water-course,  into  a  city  sewer,  whereby  the 
plaintiff's  cellar  was  flooded,  brought  to  and  tried  by  the  Superior 
Court  in  New  Haven  County,  Case,  J.,  who  gave  judgment  for  the 
defendants.^* 

Baldwin,  C.  J. :  The  reasons  of  appeal  read  as  follows :  i.  The 
court  erred  in  rendering  judgment  for  both  defendants  upon  tlie 
pleadings  and  facts  found.  2.  The  court  erred  in  rendering  judg- 
ment for  defendant,  the  city  of  Waterbur}^,  upon  the  pleadings  and 
facts  found.   3.  The  court  erred  in  rendering  judgment  for  defend- 


*'Accord:  Reinier  v.^Stubcr.  20  Pa.  St.  ^=;8.  59  Am.  Dec.  744  (1853); 
Good  Intent  Co.  v.  Hartzell7^2  Pa.  St.  277  (1853)  ;  Chicago  R.  I.  R.  Co.  v. 
Moffit,  75  111.  524  (1^74)  ;  Union  Central  Life  Ins.  Co.  v.  Chowing,  86  Tex. 
654,  26  S.  W.  982,  24  L.  R.  A.  504  (1894)  ;  Saunders  v.  Montgomery,  143  Ind. 
185,  /|i  N.  E.  453  (1805)  ;  A'orzualk  v.  Ireland,  68  Conn.  I,  35  Atl.  804  (1896)  ; 
United  States  v.  Indian  Gove  Drainage  District,  85  Fed.  928  (1898)  ; 
Cliandler  v.  Pomeroy,  96  Fed.  156  (1899)  ;  Hammond  v.  Vctshurg,  56  Fla.  369, 
48  So.  419  (1908)  ;  Aycrs  v.  Hobbs,  41  Ind.  App.  576,  84  N.  E.  554  (1907)  ; 
Decker  v.  Mann,  80  Conn.  86,  66  Atl.  884  (1907)  ;  The  Myrtie  M.  Ross,  160 
Fed.  19  (1908)  ;  Haley  w.  American  A.  C.  Co..  224.  Pa.  316.  "jt,  Atl.  557  (1909)  ; 
Catlin  V.  Northern  Coal  ^r  Jyr>ii  Cn  ,  <>?g  Pa  262,  74  Atl.  56  (1909)  ;  Southern 
Hardzvare  Co.  v.  Standard  E.  Co.,  165  Ala.  582,  51  So.  789  (1910)  ;  McMillan  v. 
Warren,  59  Fla.  578,  52  So.  825  (loio)  ;  Williamson  v.  Pozvell  (Tex.  Civ.  App.), 
140  S.  W.  3S9  (1911)  ;  Miilvey  Mfg.  Co.  v.  McKinncy,  161  111.  App.  514  (1911)  ; 
Mcrritt  V.  Poli.  2^6  Pa.  i7o.  84  Atl.  (\?^^  (1912)  ;  West-Homestead  v.  Erbeck, 
239  Pa.  192,  86  Atl.  773  (1913).  Compare  Central  1  rust  Lo.~v.  "Continental 
I  rust  Co.  of  City  of  Nezv  York,  86  Fed.  517  (1898). 

At  common  law  errors  of  fact  and  law  can  not  be  assigned  together. 
Jeffry  v.  Wood,  I  Str.  463  (1720);  Fitch  v.  Lothrop,  2  Root  (Conn.)  524 
(1797);  Brents  v.  Barnett,  3  Bibb  (Ky.)  251  (1813)  ;  Freeborn  v.  Denman, 
7  N.  J.  L.  190  (1824);  Moody  v.  Vrceland,  7  Wend.  (N.  Y.)  55  (1831)  ; 
McMnrray  v.  Erie,  ^o  Pa.  St.  223  (1868).  But  this  is  permitted  by  statute  in 
Maine!  Starbird  v.  Eaton,  42  Maine  569  (1856)^  and  by  the  practice  of  the 
courts  in  Massachusetts.  Eliot  v.  McCormick,  141  Mass.  194,  6  N.  E.  375 
(1886)  ;  Rothschild  v.  Knight,  176  Mass.  48,  57  N.  E.  337  (1900). 

Errors  in  fact  could  not  be  assigned  in  the  Exchequer  Chamber  and 
House  of  Lords.  Archbold's  Practice,  350;  Castledine  v.  Mundy,  4  B.  &  Ad. 
90,  97  (1832).  And  this  nractice  has  been  followed  in  some  jurisdictions. 
Karnuff  v.  Kelch,  71  N.  J.  L.  558,  60  Atl.  364  (1904);  Watson  y.  Mercer. 
17  Serg.  &  R.  (Pa.)  343  (1828)  ;  McMurrav  v.  Erie.  <^(}  Pa~Rf-  ■^.■?2T^5) 
'       '"l-'art  ot  tlie  opinion  of  the  court  is  omitted. 


8oS  Arrr.Ai.  Axn  error 

ant,  the  Ilcllniaiiu  Brewing;  Coiu[)any,  upon  the  pleadnigs  and  facts 
found. 

How  the  court  erred  in  rendering'  its  judgment  is  not  pointed 
out.  At  most,  nothing  more  is  stated  than  that  the  judgment  is  not 
a  proper  conclusion  from  the  pleadings  and  facts  found.  If  not, 
why  not?  It  was  for  the  appellants  to  indicate  the  character  of  the 
error  in  such  a  way  as  to  give  to  the  appellees  and  to  this  court  rea- 
sonable notice  of  the  grounds  of  exception  which  it  was  intended  to 
present.  This  duty  exists  in  a  case  where  the  error  claimed  was 
first  disclosed  by  the  judgment,  as  well  as  when  it  arose  in  the  course 
of  the  trial.  It  does  not,  as  in  ^Itzcood  v.lVclton,  57  Conn.  514, 
521,  524,  18  Atl.  322,  necessarily  appear  on  the  face  of  the  record 
by  which  of  the  several  conclusions  of  law  and  fact  reached  by  the 
trial  court  as  the  basis  of  its  judgment,  the  plaintiffs  claim  to  have 
been  aggrieved.  The  first,  second  and  third  reasons  of  appeal  are 
therefore  insufficient.®^  General  Statutes,  section  802.  There  is  no 
error. 

In  this  opinion  the  other  judges  concurred. 


*^"To  say  in  omnibus  erratum  est,  is  not  pood,  because  of  the  uncertainty." 
Fitzherbert's  Natura  Brevium  20;  Y.  B.  6  Edw.  IV  6;  Roll.  Abr.  761. 

The  decisions  lay  down  the  broad  rule  that  assignments  of  error  must 
point  out  clearly  and  distinctly  the  error  committed  in  the  court  below,  but 
the  limits  of  the  rule  depend  largely  on  the  statutes  and  rules  of  court  in 
force  in  the  respective  jurisdictions.  Among  the  many  cases  see  Donnelly  v. 
State,  26  N.  J.  L.  463  (1857)  ;  Kimball  v.  Sloss,  7  Ind.  589  (1856),  where 
the  error  assigned  was  "that  the  judgment  is  for  Sloss,  when  by  law  it 
should  have  been  for  Kimball";  Harmon  v.  Chandler,  3  Iowa  150  (1856); 
Johnson  v.  Ballon,  25  Mich.  460  (1872)  ;  Landers  V.  Staten  Island  R.  Co.,  13 
Abb.  Pr.  (N.  S.)  338  (1872);  O'Reagan  v.  O'Sullivan,  14  Bush.  (Ky.)  184 
(1878);  Baxlis  V.  Stout,  49  Mich.  21'-,,  13  N.  W.  521  (1882);  Cheatham  v. 
Pearce,  89  tenn.  668,  IS  S.  W.  1080  (1S90)  ;  Van  Stone  v.  Stillu.'cll  &  B.  Mfg. 
Co.,  142  U.  S.  128,  35  L.  ed.  961  (1891)  ;  Driscoll  v.  Carlin,  50  N.  J.  L.  28, 
II  Atl.  482  (1887)  ;  National  Fertilizer  Co.  v.  Holland,  107  Ala.  412,  18  So. 
170,  54  Am.  St.  loi  (1894)  ;  Mahler  v.  Merchant's  Nat.  Bank,  65  Minn.  2>7, 
67  N.  W.  655  (1896)  ;  Jackson  Bridge  Co.  v.  Lancashire  Ins.  Co.,  122  Mich. 
433,  81  N.  W.  265  (1890)  ;  Berry  v.  Chicago,  192  111.  I54.  61  N.  E.  498  (1901)  ; 
O'Neil  V.  Nezi'uian,  132  Mich.  489,  93  N.  \V.  1064  (1903)  ;  State  v.  MacQueen, 
69  N.  J.  L.  476,  55  Atl.  45  (1903)  ;  Lutlopfy  v.  Heckman,  70  N.  J.  L.  272,  57 
Atl.  1046  (1903)  ;  Chandler  v.  Mutual  Life  &  Industrial  Assn.  of  Georgia, 
131  Ga.  82,  61  S.  E.  1036  (1908);  Cochran  v.  Bugg,  131  Ga.  588,  62  S.  E. 
1048  (1908);  Chicago  M.  &  St.  P.  Ry.  v.  Anderson,  168  Fed.  901  (1909); 
Stark  V.  Duhring,  140  Wis.  521,  122  N.  W.  1 131  (1909)  ;  Koutnik  V.  Cody,  148 
111.  App.  313  (1909)  ;  Williams  v.  Newton,  86  S.  Car.  248,  68  S.  E.  693  (iQio)  ; 
Reed  v.  Hearst's  Chicago  American,  162  111.  App.  287  (1911);  Donovan  v. 
Davis,  85  Conn.  394,  82'AtI.  1025  (1912)  ;  Little  v.  Fear  on,  49  Pa.  Super.  Ct. 
634  (1912)  ;  Wjlmrr  vjlrxsemer  fr  I.  R.  ro..  24I  i^a.  112^  Atl."3^I4  ClQlJ)  ; 
Prenatt  v.  ^Iessenger  P.  Co.,  241  Par267  88  Atl.  439Ti9i3)rS^>"/'-'''0"  v.  Cox, 
gi  S.  Car.  382,  79  S.'E.'ia?  (1913)  ;  Boeck  v.  Modern  l'yoo<Tmen,i62  Iowa  159, 
143  N.  \V.  999  (1913);  Lakeside  I.  Co.  v.  Buffington  (Tex.  Civ.  App.),  168 
S.  W.  21  (1914)  ;  Kinnon  V.  Louisville  &  N.  R.  Co.,  187  Ala.  480,  65  So.  397 
(1914)  ;  Porter  v.  American  Cigarbox  Lumber  Co.,  164  N.  Car.  396,  80  S.  E. 
443  (1914).  Compare  Sneer  v.  .Stutz,  93  Iowa  62,  61  N.  W.  397  (1894)  ;  Wolfe 
V.  Stack,  153  Mich.  445,  116  N.  \Y.  loio  (1908).  Assignments  of  error  that 
are  no  more  than  abstract  propositions  of  law  are  improper.  Davis  v.  Harper, 
14  App.  D.  C.  463  (1899). 

An  assignment  must  not  contradict  the  record.  Bacon's  Abridgment, 
Error  (k,3)  ;  Y.  B.  9  Edw.  IV  32b;  Cross  v.  Tyrer,  Cro.  Eliz.  665   (1598)  ; 


tidd's  practice  869 

2  TIDD'S  PRACTICE,  1173 

Ninth  Ed.  1828 

To  an  assignment  of  errors,  the  defendant  may  plead  or  demur. 
Pleas  in  error  are  common  or  special.  The  common  plea,  or  joinder, 
as  it  is  more  frequently  called,  is  in  nullo  est  erratum,  or  that  there 
is  no  error  in  the  record  or  proceedings ;  which  is  in  the  nature  of  a 
demurrer,  and  at  once  refers  the  matter  of  law  arising  therefrom,  to 
the  judgment  of  the  court. "^"^ 

If  the  plaintiff  in  error  assigns  an  error  in  fact,  and  the  defend- 
ant in  error  would  put  in  issue  the  truth  of  it,  he  ought  to  traverse 
or  deny  the  fact,  and  so  join  issue  thereupon,  and  not  say  in  nullo 
est  erratum ;  for  by  so  doing  he  would  acknowledge  the  fact  alleged 
to  be  true.*^^  But  when  an  error  in  fact  is  assigned,  if  the  defendant 
vv^ould  acknowledge  the  fact  to  be  as  alleged,  and  yet  insist  that  by 
law  it  is  not  error,  he  ought  to  rejoin  in  nullo  est  erratum.  Hence 
it  appears,  that  if  an  error  in  fact  be  well  assigned,  in  nullo  est 
erratum  is  a  confession  of  it;^^  for  the  defendant  ought  to  have 
joined  issue  thereon,  so  as  to  have  tried  it  by  the  country.  But  if 
an  error  in  fact  be  assigned  that  is  not  assignable,  or  be  ill  assigned, 
in  nullo  est  erratum  is  no  confession  of  it,  but  shall  be  taken  only 
for  a  demurrer. ^^ 

By  pleading  in  nullo  est  erratum,  the  defendant  in  error  admits 
the  record  to  be  perfect,  the  effect  of  his  plea  being  that  the  record 


Whistler  v.  Lee,  Cro.  Jac.  359  (1614)  ;  Molins  v.  Werby,  i  Lev.  76  (1662)  ; 
Lampton  v.  Collingwood,  i  Salk.  262  (1694)  ;  Helbut  v.  Held,  i  Str.  6S5 
(1726)  ;  Moody  v.  Vrceland,  9  Wend.  (N.  Y.)  125  (1832)  ;  Riley  v.  Wangh, 
62  Mass.  (8  Cush.)  220  (1851)  ;  King  v.  Robinson,  23  Maine  114,  54  Am.  Dec. 
614  (1851)  ■  Hau'k  v.  Jones  24  Pa.  St  I27_{i854)  ;  Claggett  V.  Simes,  31  N.  H. 
22  (1855)  ;  Collins  v.  Watkcr.'sS  ^-  H.  437  (1875)  ;  Gray  v.  Cook,  135  Alass. 
189  (1883)  ;  IValdec  v.  Archuleta,  3  N.  Mex.  195,  5  Pac.  327  (1885)  ;  Ciimnor 
V.  Sedgwick,  67  Conn.  66,  34  Atl.  763  (1895)  ;  Doylestown  Djstilling  Co.'s 
Application,  9  Pa.  Super.  Ct.  96  (189S)  ;  Quinn's  License,  11  Pa.  Super.  Ct. 
554  U099;..  '^ 

An  assignment  of  error  in  the  form  of  a  question,  whether  in  doing 
this  or  that  the  court  erred,  is  improper.  McCaskey  R.  Co.  v.  Keena,  8l 
Conn.  656,  71  Atl.  898  (1909). 

^"Adams  v.  Beem,  4  Blackf.  (Ind.)  128  (1833);  Goodridge  v.  Ross,  6 
Mete.  (Mass.)  487  (1843)  ;  Booth  v.  Commonwealth,  7  Mete.  (Mass.)  285 
(1843)  ;  Acker  v.  Ledyard,  i  Denio  (N.  Y.)  677  (1845)  ;  David  v.  Ransom, 
I  G.  Greene  (Iowa)  383  (1848);  Rundles  v.  Jones,  3  Ind.  35  (1851).  See 
also  Delaware,  L.  &  IV.  R.  Co.  v.  Joseph  English  Co.,  %2  N.  J.  L.  113,  81  Atl. 
436  (1911),  as  to  demurring. 

^'Haydon  v.  Mynn,  Cro.  Jac.  521  (1618)  ;  Riley  v.  Waugh,  62  Mass. 
(8  Cush.)  220  (1851)  ;  Benner  v.  Welt,  45  Maine  483  (1858)  ;  Kanawha  Dis- 
patch Co.  v.  Fish,  219  111.  236,  76  N.  E.  352  (1906). 

^^Grell  V.  Richards,  i  Lev.  294  (1670);  Okeover  v.  Overbury,  T.  Ra>Tn. 
231  (1673)  ;  Bliss  V.  Rice,  9  Johns.  (N.  Y.)  159  (1812)  ;  Moorj_v  McEwen, 
5  Serg.  &  R.  (Pa.)  373  (1819);  Goodzvin  v.  Sanders,  9  Yerg.  (Tenn.)  91 
"(1836)  ;  Rundles  v.  Jones,  3  Ind.  35   (1851). 

''Lovett  V.  Pell,  22  Wend.  (N.  Y.)  369  (1839)  ;  Claggett  v.  Simes,  31  N.  H. 
22  (1855)  ;  Louisville  R.  Co.  v.  Smoot,  135  Ind.  220,  33  N.  E.  905,  34  N.  E. 
1002  (1893)  ;  Karnuff  v.  Kelch,  71  N.  J.  L.  558,  60  Atl.  364  (1904)  ;  Perkins 
V.  Bangs,  206  Mass.  408,  92  N.  E.  623  (1910). 


byo  APrKAi,  A::n  r.uROR 

in  its  present  shape  is  without  cri-or ;  and  therefore  after  in  nullo 
est  erratum  pleaded,  neither  party  can  allege  diminution,  or  pray  a 
certiorari.'"  But  though  the  parties  are  bound  by  their  own  admis- 
sion, and  that  equally  so  as  to  every  part  of  the  record,  yet  no  ad- 
mission of  the  parties  can  or  ought  to  restrain  tlie  courts  from  look- 
ing into  the  record  before  th.cm.  Hence  it  is  a  general  rule,  that  at 
any  time  pending  a  writ  of  error,  wdiethcr  before  or  after  errors 
assigned,  or  even  after  in  nullo  est  erratum  pleaded,  the  court,  ex 
officio  may  award  a  certiorari,  and  they  may  do  this  to  supply  a  de- 
fect in  the  body  of  the  record,  as  well  as  in  the  out-branches.'^^ 

Special  pleas  to  an  assignment  of  errors  contain  matters  in  con- 
fession and  avoidance,  as  a  release  of  errors,^-  or  the  statute  of  lim- 
itations,"^ etc.,  to  which  the  plaintiff  in  error  may  reply'^^  or  demur, 
and  proceed  to  trial  or  argument.''''' 


'"Y.  B.  9  Edvv.  IV  32;  Robert  v.  Andrew's,  Cro.  Eliz.  82  (1587)  ;  GiUUcnd 
V.  Rapplcyca,  15  N.  J.  L.  138  (1835)  ;  Tomlinson  v.  Armour,  75  N.  J.  L.  748, 
70  Atl.  314  (1907)- 

"^Vincr's  Abridgment,  Error  (m)  ;  WincJiomb  V.  Goddard,  Cro.  Eliz.  836 
(1600")  ;  Meredith  v.  Dav'ics,  i  Salk.  270  (1711). 

"Bacon's  Abridgment,  Error  (1)  ;  Y.  B.  9  Hen.  VI  46;  Carle  ton  v. 
lilortagh,  2  Ld.  Raym.  1005  (1703)  ;  Davcnant  v.  Raftor,  2  Ld.  Raym.  1046 
(1704)  ;  Adams  v.  Becin,  4  Blackf.  (Ind.)  128  (1835)  ;  Newman  v.  Riser,  128 
Ind.  258,  26  N.  E.  1006  (1890)  ;  Compiler  v.  Broivning,  219  111.  429,  76  N.  E. 
678,  109  Am.  St.  346  (1906)  ;  Schaeffcr  v.  Ardery,  238  111.  557,  87  N.  E.  343 
(1909) ;  Cass  V.  Duncan,  260  111.  228,  103  N.  E.  280  (1913).  So  also,  matters 
arising  after  the  taking  of  the  appeal  may  be  specially  pleaded.  Nezvman  v. 
Riser,  128  Ind.  258,  26  N.  E.  1006  ( 1890)  ;  Lake  Erie  &  IV.  R.  Co.  v.  Huffman, 
177  Ind.  126,  97  N.  E.  434,  Ann.  Cas.  1914C,  I272n  (1912). 

'^BartJiolome-dJ  V.  Bel  field,  Cro.  Jac.  332  (1613)  ;  Street  v.  Hopkinson, 
2  Str.  I0S5  (1736)  ;  Jacobs  v.  Graham,  i  Blackf.  (Ind.)  392  (1825)  ;  Acker  v. 
Lcdyardli  Denio  (N.  Y.)  677  (1845)  ;  Duff  v.  Duff,  103  Ky.  348,  45  S.  W.  102, 
20  Ky.  L.  52  (1898)  ;  Farmer  v.  Allen,  85  Miss.  672,  38  So.  38  (1904)  ;  George 
V.  George,  250  111.  251,  95  N.  E.  167  (1911).  In  some  jurisdictions  the  bar 
of  the  statute  may  be  taken  advantage  of  by  motion  to  quash,  or  to  dismiss 
the  writ  or  appeal.  Brooks  v.  N orris,  11  How.  (U.  S.)  204,  13  L.  ed.  665 
(1850)  ;  Showers  v.  Showers,  27  Pa.  St.  485,  67  Am.  Dec.  487  (1856)  ;  Day  v. 
Huntingdon,  78  Ind.  2S0  (1881)  ;  Lane  v.  II 'heeler,  loi  N.  Y.  17,  3  N.  E.  796 
(1885).  The  Pa.  Act  of  May  IQ.  i8q7.JP-  L.  67,  §  4,  fixing  a  limitation  for 
taking  appeals^provides :  "Appeals  taken  after  tlie  time  herein  provided  for 
shall  be  quashed  on  motion."  jl/r/'of/^^rn  v.  McFadden,  211  Pa.  599,  61  Atl.  75 
(1905)  ;  Parrel  w.  Scranton  R.  Co.,  27  Pa.  Superset.  127"  (1905). 

'■'GaliisJTa  V.  Cobleigh,  13  IM.  Jhl.  79  (.1842)  ;  Tra/>/>  v.  Off,  194  111.  287,  62 
N.  E.  615  (1902). 

"At  common  law  where  a  scire  facias  ad  audiendum  errores  was  sued 
out  and  the  defendant  failed  to  appear  and  join  in  error  the  plaintiff  in 
error  could  move  to  reverse  judgment  on  entry  of  defendant's  default. 
Thatcher  V.  Stephenson,  i  Str.  144  (1718)  ;  Walmsley  v.  Roson,  2  Str.  1210 
(1744)  ;  Arch.  Pr.  (7th  ed.)  387.  And  failure  to  plead  has  led  to  a  reversal 
of  judgment  in  some  American  courts.  Op  pie  v.  Colegrove,  19  Johns.  (N.  Y.) 
124  (1821)  ;  Higgins  v.  Crosby,  40  III.  79  (1865),  semble;  Mtirdock  v.  Town- 
send,  I  Colo.  33  (1867),  and  see  Tufts  v.  Newton,  119  Mass.  476  (1876).  In 
other  courts  the  practice  is  to  proceed  ex  parte  to  examine  the  errors  assigned. 
March  v.  Howell,  I  Mo.  138  (1821)  ;  Mayson  v.  Lane,  6  How.  (Miss.)  11 
(1840);  Pa.  Supreme  Court  Rule  16.  In  Alabama  a  formal  joinder  is  held 
unnecessar>-  where  the  record  shows  a  joinder  in  the  submission  of  the  cause. 
Maddox  v.  Chilton  Warehouse  Co.,  171  Ala.  216,  55  So.  93  (iqii).  So  in 
Downs  v.  Chandler  (N.  Mex.),  85  Pac.  392  (1906),  it  is  held,  under  the 
statute,  that  unless  exception  is  taken  to  the  assignments  of  error  the  opposite 
party  is  deemed  to  have  joined  in  error. 


BELL   V.    GERMAIN  87I 

SECTION  6.   BRIEFS  AND  ARGUMENT 

BELL  V.  GERMAIN 

District  Court  of  Appeal  of  California,  1910 

12  Cal.  App.  375 

Taggart,  J. :  Action  to  quiet  title.  Decree  quieting  title  of  de- 
fendants and  awarding  them  costs.  Plaintiff  appeals  from  judgment 
and  order  denying  her  motion  for  new  trial. '^® 

It  is  apparent  that  counsel  for  appellant  has  been  somewhat  mis- 
led in  the  preparation  of  his  brief  by  the  repeated  requests  of  the 
Supreme  Court  and  this  court  for  brevity  and  succinctness  in  the 
presentation  of  cases.  While  "simplicity  of  statement"  in  the  brief 
of  counsel  has  met,  and  always  will  meet,  with  the  approval  of  these 
courts,  the  effort  in  this  direction  should  not  go  so  far  as  to  elim- 
inate or  exclude  all  specification  or  mention  of  the  errors  upon  which 
an  appellant  relies  for  a  reversal.  The  simplicity  of  presentation 
desired  is  that  which  avoids  prolixity,  verbosity  and  repetition; 
which  omits  theoretical  disquisitions  on  abstract  principles  of  law, 
needless  presentation  of  questions  of  fact  as  to  which  tlie  action  of 
the  trial  court  Is  final,  the  citation  of  innumerable  authorities  indica- 
tive of  an  examination  of  the  subject  which  has  never  passed  the 
digest  stage,  etc.,  etc.  A  brief  is  supposed  to  be  the  vehicle  of  coun- 
sel to  convey  to  the  court  the  essential  facts  of  his  client's  case,  a 
statement  of  the  questions  of  law  involved,  the  law  he  would  have 
applied,  and  the  application  he  desires  made  of  it  by  the  court.  When 
the  brief  is  presented  to  an  appellate  court,  it  should  point  out  to 
that  court  which  of  the  many  objections  and  exceptions  usually 
found  in  the  transcript  it  is  the  wish  of  appellant  to  have  the  court 
review.  It  must  be  assumed  for  this  purpose  that  the  knowledge  of 
the  court  does  not  include  the  facts  of  the  particular  case,  or  the 
special  errors  of  the  trial  court  which  appellant  relies  upon  to  over- 
turn the  judgment  or  order.  These  should  be  pointed  out  clearly, 
even  at  the  hazard  of  encroaching  upon  the  ideal  simplicity  of  state- 
ment which  the  appellate  courts  have  approved.  Voluminous  and 
unnecessarily  padded  briefs  are  discouraged  by  the  courts  in  order 
that  they  may  dispatch  business.  When  briefs  fail  altogether  to 
present  the  matters  mentioned,  the  courts  must  elect  between  acting 
as  counsel  for  the  appellant,  or  passing  upon  only  such  questions  as 
are  sufficiently  presented  for  consideration  by  the  brief,  and  in  ac- 
complishing the  purpose  mentioned,  to  wit,  the  dispatch  of  business, 
the  latter  course  has  generally  been  adopted.'^'' 

Judgment  and  order  affirmed. 


"Only  so  much  of  the  opinion  as  relates  to  the  brief  is  printed. 

"The  brief  must  support  the  party's  contention  by  reasoning  and  by 
authorities.  Brown  v.  Tolles,  7  Cal.  398 '(1857)  ;  Chicago  R.  I.  Co.  v  Moffitt, 
75  111.  524  (1874)  ;  Stockdale  v.  Maginn,  l3JLPaLSt^50Z^ig  Atl.  297  (1890)  ; 
Chicago  &  Ind.  R.  Co.  v.  HunleT,  128 Tnd.  213,  27  N.  K  477  (1890)  ;  Hatch 


87-  AIMTAI,    AND    ERROR 

]\rATTTTF.WS  APPEAL 
Supreme  Co_urtjqeJ-^-i:njjsy.lvajjia,  1883 

104  Pa.  Si.  444 

Appeal  from  a  decree  of  the  Court  of  Common  Pleas  No.  2  of 
Allogliony  County,  dismissing  exceptions  to  a  master's  report  in 
equity."^ 

When  the  case  was  called  for  argument  upon  October  29,  1883, 
the  appellees'  counsel  directed  the  attention  of  the  court  to  the  fol- 
lowing language  in  the  appellants'  paper  book  used  in  reference  to 
the  master's  report : 

"Such  a  course  of  reasoning  is  contrary  to  common  sense.  Its 
fallacy  is  too  plain  to  provoke  criticism.  It  is  kin  to  the  utterings 
of  a  'crank'.  .  .  .  But,  the  master  bridged  it  over  by  saying  that 
tliere  was  so  little  of  the  balance  of  purchase  money  left  that  the 
game  would  not  be  worth  the  candle.  And  therefore,  excused  the 
company  from  fault.  Plere,  again,  we  have  a  ruling  which  more 
closely  resembles  the  utterings  of  a  'crank'  than  it  does  the  reason- 
ing of  a  chancellor." 

The  court  took  the  matter  under  consideration,  and  upon  the 
opening  of  court  upon  the  day  following,  Mercur,  C.  J.,  stated  their 
opinion  substantially  as  follows : 


V.  Hanson,  46  Mo.  App.  323  (1891)  ;  Gavin  v.  Gavin,  92  Cal.  292,  28  Pac.  567 
(1891)  ;  Ashley  v.  Martin,  50  Ala.  537  (1874)  ;  Paine  v.  Webster,  64  Vt.  105, 
23  Atl.  615  (1891);  DuBois  V.  Perkins,  23  Ore.  144,  31  Pac.  201  (1892); 
Mason  v.  Partrick,  100  Mich.  577,  59  N.  W.  239  (1894)  ;  Hough  V.  Tacoma, 
12  Wash.  386,  41  Pac.  173  (1895)  ;  Patterson  v.  Patterson,  3  Kans.  App.  342, 
45  Pac.  129  (1896)  ;  Hoover  v.  li'cesner,  147  Ind.  510,  45  N.  E.  650,  46  N.  E. 
905  (1896)  ;  Porter  v.  Parslozv,  39  Fla.  50,  21  So.  574  (1897)  ;  Kerr  v.  Smiley, 
77  111.  App.  88  (1898);  Bauer  v.  School  Dist.,  78  Mo.  App.  442  (1898); 
Missoula  Mercantile  Co.  V.  O'Donncll,  24  Mont.  63,  60  Pac.  594,  (1900); 
Western  Tube  Co.  v.  Pederson,  128  111.  App.  637  (1906)  ;  Barth  v.  Borden's 
Condensed  Milk  Co.,  104  N.  Y.  S.  8S2  (1907)  ;  Gray  v.  Walker,  157  Cal.  381, 
108  Pac.  278  (1910)  ;  Seaboard  Air  Line  v.  Nims,  61  Fla.  420,  54  So.  779 
(1911)  ;  Clark  v.  Kraig,  21  Colo.  App.  196,  120  Pac.  1044  (1912)  ;  Title  Guar- 
anty Co.  V.  Slinker,  35  Okla.  128,  128  Pac.  696  (1912)  ;  Wellington  V.  Reynolds 
177  Ind.  49,  97  N.  E.  155  (1912).  Counsel  in  citing  precedents  should  make  first 
choice  of  those  of  the  court  where  the  case  is  on  appeal.  LhxgauJU^RaltimQXC 
f.  n  ff  Cn  Wzf^V:,  St  ?t^,  28  Atl.  182,  1S6,  39  Am.  St.  672  (1893)  ;  BUzsard 
V.  Brown,  152  Wis.  160,  139  N.  W.  737  (1913)  ;  Francis  v.  First  Nat.  Bank  of 
Eufaula,  40  Okla.  267,  138  Pac.  140  ( 1914) .  In  Wilson  v.  National  Fowler  Bank, 
47  Ind.  App.  689,  95  N.  E.  269  (1911),  it  was  held  that  the  appellants  were  ex- 
cused from  giving  authorities  by  a  statement  that  they  were  unable  to  find  any 
directly  in  point.  So,  a  rule  requiring  briefs  to  contain  authorities  is  not  vio- 
lated merely  because  the  authorities  cited  are  inapplicable.  Fishback  v.  Braniel, 
6  Wyo.  293,  44  Pac.  840  ( 1896) .  The  form  and  contents  of  the  brief  or  argument 
are,  almost  universally,  regulated  cither  by  statutes  or  the  rules  of  court.  For 
example  see  Rules  of  Supreme  Court  of  United  States,  Rule  XXI.  By  the 
rules  of  practice  in  many  jurisdictions  errors  raised  for  the  first  time  in  a 
reply  brief  v.-ill  not  be  considered.  Kendrick  v.  Eggleston,  56  Iowa  128, 
8  N.  W.  786,  41  Am.  Rep.  90  (1881)  ;  Vestal  v.  Norris,  n  Wash.  451,  39  Pac. 
960  (1895);  Malott  V.  State,  158  Ind.  678,  64  N.  E.  458  (1902);  Hawke  v. 
Biimgardner,  103  Va.  91,  48  S.  E.  554  (1904)  ;  Mesa  De  Mayo  Land  Co.  v. 


LAMPSON    z:    II  OB  ART  873 

"Our  attention  has  been  directed  to  some  objectionable  and  im- 
proper language  in  the  appellants'  paper  book.  Objectionable  words, 
hastily  spoken  in  the  warmth  of  oral  argument,  may  often  be 
excused.  In  printed  arguments  there  is  no  excuse  for  language 
such  as  we  find  in  this  book.  The  motives  of  the  master  are  im- 
pugned and  he  himself  is  spoken  of  contemptuously.  Especially  is 
this  unjustifiable,  where,  as  here,  the  master's  report  was  confinned 
by  the  court.  The  master  is  a  part  of  the  court.  To  say  that  his 
course  of  reasoning  is  contrary  to  comm.on  sense  and  kin  to  the 
utterings  of  a  crank,  is  not  criticism  on  his  reasoning  nor  relevant 
to  the  questions  at  issue.  A  majority  of  this  court  has  determined 
that  this  paper  book  be  suppressed." 

Counsel  for  appellant  desired  to  be  heard. 

Mercur,  C.  J. :  We  have  read  the  langviage  and  decided  on  its 
impropriety.  We  can  not  hear  argument  as  to  the  wisdom  of  our 
decision,  but  if  you  wish  to  make  any  apology  we  will  hear  you. 

Counsel  for  appellant  then  stated  that  the  argument  was  writ- 
ten in  haste,  and  was  not  intended  to  reflect  personally  upon  the 
master,  between  whom  and  the  counsel  friendly  relations  existed; 
and  that  the  objectionable  language  would  be  expunged. 

This  was  done,  and  the  case  was  then,  by  the  consent  of  appel- 
lees' counsel,  heard  by  the  court. '^^ 


LAMPSON  V.  ESTATE  OF  ADAM  HOBART,  JR. 

Supreme  Court  of  Vermont,  1856 

27  11.  784 

In  this  case,  heard  at  tlie  March  term  of  the  Supreme  Court  for 
the  county  of  Orange,  A.  D.  1856,  the  plaintiff  had  two  distinct 
claims  which  he  was  prosecuting  against  the  estate  of  defendant. 
In  the  county  court  one  was  decided  in  his  favor,  and  the  other  in 


Hoyt,  24  Colo.  App.  279,  133  Pac.  471  (1913)  ;  Simmons  v.  Affoltcr,  254  Mo. 
163,  162  S.  W.  168  (1914)  ;  Wankcgan  v.  Wetzel,  261  111.  498,  104  N.  E.  184 
(1914);  Cribbs  v.  Stiver,  181  Mich.  82,  147  N.  W.  587  (1914).  Compare 
Pratt  V.  Trustees  of  Baptist  Soc.  of  Elgin,  93  111.  475,  34  Am.  Rep.  187 
(1879)  ;  In  re  Adams,  165  Miss.  497,  43  N.  E.  682  (1896). 

"Only  so  much  of  the  case  as  relates  to  the  paper  book  is  printed. 

"Abuse  of  court,  counsel  or  parties,  or  statements  as  to  conduct  and 
motives  not  supported  by  the  record  are  improper  and  will  subject  the  offend- 
ing part}^  to  the  discipline  of  the  appellate  court.  San  Diego  Water  Co.  v. 
San  Diego,  117  Cal.  556,  49  Pac.  582  (1897);  Confrey  v.  Stark,  73  111.  187 
(1874)  ;  Cassidy  v.  Palo  Alto.  58  Iowa  125,  12  N.  W.  231  (18S2)  ;  Scroggins 
V.  Brown,  14  III.  App.  338  (1883)  ;  Paine  v.  Frost,  67  Iowa  282,  25  N.  W.  243 
(1885)  ;  Sax  V.  Drake,  69  Iowa  760,  28  N.  W.  423  (1886)  ;  Eureka  Steam 
Heating  Co.  v.  Sloteman,  69  Wis.  398,  34  N.  W.  387  (1887)  ;  Green  v.  Elbert, 
137  U.  S.  615,  34  L.  ed.  7Q2  (1891)  ;  Flannagan  v.  Elton,  34  Nebr.  355,  51  N.  W. 
967  (1892)  ;  Diamond  T.  Co.  v.  Faulkner,  17  Colo.  9.  28  Pac.  472  (1891)  ; 
Tomlinson  v.  Territory,  7  N.  AT  ex.  195,  33  Pac.  950  C1893)  ;  Taggart  v.  Bun- 
dick  (Kans.),  43  Pac.  243  (1896)  ;  People  v.  Parks,  26  Colo.  322,  57  Pac.  692 
(1899)  ;  State  v.  Kennedy,  60  Nebr.  300,  S>2)  N.  W.  87  (1900)  ;  Scott  v.  Brown 
(Kans.),  63  Pac.  451  (1901). 


874  APPEAL   AND   ERROR 

favor  of  the  cslntc.  Both  parties  excepted  to  the  decision,  and  the 
exceptions  on  both  sides  were  ]>rosecuied  before  this  court.  A  ques- 
tion was  made,  in  regard  to  which  party  sliould  go  forward  in  the 
arginnent. 

Bv  The  Court:  We  think,  in  the  state  in  which  this  case  is 
presented,  the  plaintifl"  is  entitled  to  open  and  close  the  argument. 
So  far  as  the  exceptions  are  concerned,  the  parties  are  equally  en- 
titled to  open  and  close. ^'^  We  must  then  fall  back  upon  the  general 
ground,  tliat  the  plaintiff  assumes  the  initiative  in  the  proceedings.^^ 


POWERS  V.  STURTEVANT 

Supreme  Judicial  Court  of  IMassaciiusetts,  1909 

200  Mass.  519 

KxowLTOX,  C.  J.:  This  is  an  appeal  by  the  defendant  from  an 
order  of  the  superior  court  that  judgm.ent  be  entered  for  the  plaintiff. 
The  appeal  is  founded  upon  the  fact  that  an  application  for  a  re- 
hearing, on  account  of  a  supposed  error  in  law  in  the  decision  of 
the  case  by  the  full  court,  had  been  sent  to  the  chief  jusLice,_and  the 
receipt  of  it  had  been  acknowledged,  with  a  statement  that  it  would 
be  considered  by  the  justices  at  their  next  meeting  for  consultation. 
The  application  was  sent  in  July,  and  the  next  meeting  of  the  jus- 
tices v/as  to  be  on  the  first  Tuesday  of  September. 

The  defendant  seemingly  misapprehends  the  standing  of  a  case 
after  a  final  decision  of  it  by  the  full  court  upon  questions  of  law. 
On  tliis  subject  Chief  Justice  Gray  said,  in  tlie  opinion  in  Winchester 
V.  Winchester,  121  Mass.  127,  129,  "The  practice  of  that  court 
(the  English  Court  of  Chancery)^-  affords  no  rule  to  govern  acourt 
of  last  appeal,  whose  judgments  have  the  strongest  presumption  in 
their  favor,  and  can  not  be  freely  reconsidered  without  unreasonably 
protracting  litigation  and  disregarding  the  claims  of  other  suitors  to 
the  attention  of  the  court."  He  supports  his  statements  as  to  the 
practice  in  England  and  in  the  Supreme  Court  of  the  United  States 
by  numerous  citations.*^  A  similar  practice  prevails  generally  in  the 

*^The  appellant  has  the  right  to  begin  and  conclude  the  argument.  Decr- 
ing  V.  Adams,  34  Maine  41  (1852)  ;  Arch.  Pr.  (7th  ed.),  p.  375;  Tidd's  Pr. 
(9th  ed.)   1177.  ^  ,   _ 

"Accord:  Sellezv's  Appeal,  36  Conn.  1S6  (1869)  ;  Shand  v.  Central  Nat. 
Bank  (S.  Car.),  11  S.  E.  389  (1890).  But  see  Peters  v.  Farnsworth,  15  Vt.  786 
(1843)  ;  McFarland  v.  Stone,  16  Vt.  145  (1844). 

Where  both  parties  bring  error  the  appeals  should  be  heard  at  the  same 
time.  In  re  Saicr's  Estate,  158  Alich.  170,  122  N.  W.  563  (1909)  ;  Hawkes  v. 
Warren,  133  App.  Div.  863,  117  N.  Y.  S.  1097  (1909)- 

""See  Fox  v.  Mackreth,  2  Cox's  Ch.  158  (1789),  but  the  practice  is  other- 
wise under  the  Judicature  Act  of  1873.  In  re  St.  Nasaire  Co.,  12  Ch.  Div.  88 
(1879)  ;  Briqht  V.  Scllar,  L.  R.  O904)  i  K.  B.  6. 

"Per  Gray,  C.  J.:  "After  £nal  judgment  in  the  House  of  Lords  or  m 
the  Judicial  Committee  of  the  Privy  Council,  no  rehearing  is  allowed,  unless 
ior  the  purpose  of  correcting  mistakes  in  the  form  of  the  decree.   Broughton 


POWERS   V.    STURTEVANT  875 


courts  of  last  resort  in  the  states  of  this  country,  although  there  are 
two  or  three,  and  possibly  more,  in  which  applications  for  a  rehear- 
ing of  questions  of  law  are  entertained  and  arguments  heard  upon 
them.  The  application  in  Winchester  v.  Winchester,  ubi  supra,  was 
on  the  ground  that  a  decree  had  been  entered  erroneously  as  by  con- 
sent of  the  parties,  when  in  fact  there  v/as  no  consent.  The  court  re- 
ceived the  application  without  hearing  the  argument  upon  it,  and 
announced  a  decision  refusing  a  rehearing.  In  cases  of  applications 
for  a  rehearing  on  the  ground  of  a  supposed  error  of  the  full  court,  it 
has  been  the  practice  for  many  years,  not  to  treat  them  as  having  any 
standing  as  a  part  of  the  legal  procedure  in  the  case.  They  are  not 
recognized  by  our  statutes.  They  can  not  be  made  as  a  matter  of 
right,  and  they  are  not  entered  upon  the  records  of  the  court  unless 
the  justices,  in  their  discretion,  think  they  ought  to  be. 

Of  course  there  is  a  possibility  of  error  in  a  decision  by  the 
most  learned  and  painstaking  court  in  the  world.  The  justices  of 
the  Supreme  Court  of  the  United  States,  and  of  other  distingiiished 


V.  Delves,  I  Ridff.  P.  C.  513,  514;  Stezvart  V.  Agneiv,  i  Shaw  App.  Cas.  413; 
Tommcy  v.  White,  3  H.  L.  Cas.  49,  4  H.  L.  Cas.  313;  Rajundcrnara'in  v.  Bljai 
Gov'ind  Sing,  I  Moore's  P.  C.  117;  The  Singapore,  L.  R.  i  P.  C.  378,  388. 
In  Stewart  V.  Agnezv,  Lord  Eldon  quoted  from  an  opinion  delivered  in  the 
Irish  House  of  Lords  in  1787,  while  that  house  was  an  independent  and 
supreme  judicature,  the  following  quaint  but  forcible  statement :  'If  causes 
were  to  be  reheard,  there  would  be  no  end  of  decisions.  This  house  would 
then  be  a  house  of  plusieiirs  resorts  and  not  of  dernier  resort — a  house  of 
many  applications,  and  not  of  final  judgment;  and  the  celebrated  Latin 
epigram  upon  the  tediousness  and  uncertainty  of  the  Aulic  Council  at  Spires 
might  then  be  wrote  over  the  front  of  this  house,  Lites  ibi  spirant,  sed 
minquam  expircnt.'  In  the  Supreme  Court  of  the  United  States,  no  rehear- 
ing of  a  case  once  decided  is  granted,  nor  even  an  argument  permitted  upon 
the  question  whether  a  rehearing  should  be  had,  unless  the  court,  upon  inspec- 
tion of  the  petition  for  a  rehearing,  sees  fit  so  to  order.  Washington  Bridge 
V.  Stcivart,  3  How.  (U.  S.)  413,  11  L.  ed.  658;  Brown  v.  Aspden,  14  How. 
(U.  S.)  25,  14  L.  ed.  311;  United  States  v.  Knight,  1  Black  (U.  S.)  488, 
17  L.  ed.  76;  Pithlic  Schools  v.  Walker,  9  Wall.  (U.  S.)  603;  Ambler  v. 
Whipple,  23  Wall.  (U.  S.)  278,  23  L.  ed.  127."  Accord:  Johns  v.  Johns, 
20  Md.  58  (1862);  Wilson  v.  Williams,  106  Md.  657,  68  Atl.  297  (1907). 
See  also,  Derby  v.  Gallup,  5  Minn.  (Gil.  85)  119  (i860);  Fosdick  v.  Hemp- 
stead, 126  N.  Y.  651,  27  N.  E.  382  (1891)  ;  Land  v.  Wickham,  i  Paige  Ch. 
(N.  Y.)  256  (1828)  ;  Russell  v.  Dyer,  43  N.  H.  396  (1861)  ;  Mount  v.  Mitchell, 
32  N.  Y.  702  (1865);  Woodbury  v.  Dorman,  15  Minn.  (Gil.)  341  (1870); 
Marine  Nat.  Bank  v.  City  Bank,  59  N.  Y.  67,  17  Am.  Rep.  305  (1874)  ;  Butler 
V.  Walker,  80  111.  34S  (1875)  ;  Gregory  v.  Pike,  67  Fed.  837  (1895)  ;  People  v. 
District  Court,  26  Colo.  386,  58  Pac.  604,  46  L.  R.  A.  850  (1899)  ;  Newton  v. 
Woodley,  55  S.  Car.  132,  2,2  S.  E.  531,  33  S.  E.  i  (1898)  ;  In  re  Lefevre's_Es- 
tate.  im  Pa.  St.  22=^.  aa  Atl.  272  (1899)  ;  Weathers  v.  Borders,  124  N.  Car.  610, 
32  S.  K.  881  (1899)  ;  Hodgin  v.  People's  Nat.  Bank,  125  N.  Car.  503,  34  S.  E. 
709,  712  (1899)  ;  Suwannee  R.  Co.  v.  West  Coast  R.  Co.,  50  Fla.  612,  39  So. 
538  (1905);  Van  Dyke  v.  Cole,  81  Vt.  379,  70  Atl.  ii03'(i9o8);  Welch  v. 
Highwood,  150  111.  App.  397  (1909)  ;  Rosenstcrn  &  Co.  v.  United  States, 
171  Fed.  71  (1909)  ;  Cunningham  v:  Blanchard,  85  Vt.  494,  83  Atl.  469  (1912)  ; 
Flores  v.  Stone,  21  Cal.  105,  131  Pac.  348,  351,  352  (1913)  ;  Ex  parte  Banco 
De  Portugal,  14  Ch.  Div.  i,  42  L.  T.  210  (1880);  Preston  Banking  Co.  v. 
Allsup,  L.  R.  I  Ch.  Div.  141  (1895);  Gamble  v.  Hackett,  35  Nev.  319,  133 
^Pac.  936  (1912)  ;  Chapman  &c.  Lumber  Co.  v.  St.  Francis  Levee  Dist.,  234 
U.  S.  667,  58  L.  ed.  1526  (1914). 


S>y6  APri:AL  and  i:ruor 

triliunals.  arc  often  nearly  c\cnl3-  divided  in  opinion  npon  a  clirficult 
(lucslion  of  law.  Hut  when  a  decision  is  made,  after  a  court's  best 
ctl'orts  to  reach  a  correct  conclusion,  it  ouj^ht  not  to  be  open  to  re- 
vision merely  because  it  seems  to  the  defeated  party  to  be  wrong, 
(^n  the  other  hand,  if  by  any  accident,  oversight  or  inadvertence  a 
Avrong  conclusion  should  be  reached  in  any  case,  the  judges  who 
made  tlie  decision  presumably  would  be  more  desirous  than  any  one 
else  to  correct  the  error.  Accordingly,  in  such  a  case  they  would 
welcome  a  suggestion  in  the  interest  of  justice,  from  anybody,  at 
any  time  while  they  have  the  power  to  revise  the  decision.  The 
practice  of  the  court  in  reference  to  such  suggestions  from  a  party 
is  stated  in  IJ'all  v.  Old  Colony  Trust  Co.,  187  Mass.  275,  278,  as 
follows :  "Such  an  application  has  no  standing  under  our  laws  as  a 
recognized  part  of  our  procedure,  but  is  received  only  as  friendly  in- 
formation to  the  justices  of  an  oversight  or  manifest  error,  which 
in  the  opinion  of  tlie  justices  should  call  for  correction  or  re-argu- 
ment. 2\  rgument  is  not  heard  upon  such  an  application,  nor  should 
the  application  itself  contain  any  argument,  but  it  should  suggest  the 
error  relied  on."  If  such  a  suggestion  indicates  an  error,  the  court, 
of  its  own  motion,  will  do  anything  in  its  power  to  accomplish  jus- 
lice  and  protect  the  rights  of  the  parties.  But  happily  there  is  sel- 
dom occasion  to  do  anything  of  this  kind,  and  it  would  be  likely  to 
ivork  injustice  rather  than  justice,  to  permit  a  party,  by  presenting 
iuch  an  application,  to  postpone  as  of  right  the  entry  of  final  judg- 
ment, after  a  case  has  been  through  all  the  earlier  stages  of  litiga- 
tion, and  has  been  finally  decided  with  due  deliberation  by  the  court 
of  last  resort.  If  the  justices,  after  receiving  such  an  application, 
do  not  recall  the  rescript,  or  otherwise  suggest  a  postponement  of 
action  by  the  lower  court,  the  action  of  that  court  should  be  governed 
by  the  rule  stated  in  Shannon  v.  Shannon,  10  Allen  (Alass.)  249,  in 
these  words :  "The  application  to  tlie  court  holden  by  a  single  judge, 
to  postpone  entering  a  judgment,  for  the  purpose  of  affording  the 
]>arty  an  opportunity  for  a  re-argument  upon  a  case  already  decided 
by  the  full  court,  was  a  matter  within  the  discretion  of  the  judge, 
and  his  ruling  refusing  such  application  does  not  furnish  any  ground 
for  a  bill  of  exceptions."  On  the  face  of  the  record  the  case  was 
ripe  for  judgment,  and  there  was  no  error  of  law  in  making  the 
order.  ' 

Judgment  affirmed. 


STORM    Z'.    UNITED    STATES  8/7 

SECTION  7.    REVIEW  BY  THE  COURT 

STORM  V.  UNITED  STATES 

Supreme  Court  of  the  United  States,  1876 

94  U.  S.  76 

Error  to  the  Circuit  Court  of  the  United  States  for  the  District 
of  California.  Action  on  a  bond  given  by  Storm  and  Shroder,  con- 
tractors, and  their  sureties,  to  the  United  States,  in  the  sum  of 
$12,000,  conditioned  to  perform  tlie  covenants  of  an  agreement 
to  furnish  oats,  hay,  etc.,  made  with  the  assistant  quartermaster 
of  the  army.  There  was  a  verdict  and  judgment  for  the  plaintiff  for 
$2,615.40  and  the  defendants  brought  error. ^* 

Clifford,  J. :  Errors  of  the  circuit  court  resting  in  parol  can 
not  be  reexamined  in  this  court  by  writ  of  error.  Instead  of  that, 
the  writ  of  error  addresses  itself  to  the  record;  and  the  rule  is,  that, 
whenever  the  error  is  apparent  in  the  record,  whether  it  be  made  to 
appear  by  bill  of  exceptions,  an  agreed  statement  of  facts,  or  by 
demurrer,  the  error  is  open  to  reexamination  and  correction. 

Whatever  error  of  the  court  is  apparent  in  the  record,  whether 
it  be  in  the  foundation,  proceedings,  judgment,  or  execution  of  the 
suit,  may  be  reexamined  and  corrected;  but  neither  the  rulings  of 
the  court  in  admitting  or  excluding  evidence,  nor  the  instructions 
given  by  the  court  to  the  jury,  are  a  part  of  the  record,  unless  made 
so  by  a  proper  bill  of  exceptions.  Suydam  v.  JJ'illianison,  20  How. 
(U.  S.)  433.    :    •    .     . 

The  action  is  an  action  of  debt  founded  on  the  bond  given  by 
the  defendants  to  secure  the  faithful  performance  of  covenants 
contained  in  their  previously  described  written  agreement.  Refer- 
ence has  already  been  made  to  all  the  exceptions  taken  by  the  de- 
fendants to  the  rulings  of  the  court  during  the  trial  before  the  jury; 
but  it  is  also  objected  in  argument  here  that  the  bond  described  in 
the  complaint  was  not  produced  at  the  trial,  and  that  no  copy  of  it 
was  ever  filed  in  the  case.  Such  an  objection,  if  it  had  been  made  in 
the  court  below,  might  have  been  available  for  the  defendants,  un- 
less the  plaintiffs  had  overcome  it  by  producing  the  instrument,  or 
by  showing  its  loss  and  due  search  for  it  without  success,  and  had 
offered  secondary  proof  of  its  contents.  Parol  proof  of  the  contents 
of  a  lost  instrument  of  the  kind  is  admissible,  provided  it  appear 
that  proper  search  has  been  made  for  it  without  success. 

Had  the  defendants  intended  to  insist  that  the  bond  should  be 
given  in  evidence,  they  should  have  made  that  intention  known  at  the 
trial;  and,  if  not  given  in  evidence,  they  might  have  requested  the 
court  to  direct  a  verdict  in  their  favor,  and,  in  case  their  request 
had  been  refused,  they  would  have  had  the  right  to  except  to  the 
ruling  of  the  court  in  refusing  their  request  for  instruction.  Nothing 
of  the  kind  was  done ;  and,  for  aught  that  appears  in  the  record,  it 


'^The  facts,  as  briefly  indicated,  are  from  tlie  opinion  of  the  court;  only 
so  much  of  which  as  relates  to  exceptions  is  printed. 


8^8  APPEAL    AND    ERROR 

jiiav  be  that:  the  bond  was  s;ivcn  in  c\iJcncc,  or,  if  not,  that  the  dc- 
fendants  waived  the  right  to  require  its  production. 

Errors  apparent  in  the  record,  though  not  presented  by  a  bill  of 
exceptions,  may  be  reexamined  by  writ  of  error  in  an  appellate  tri- 
bunal ;  but  alleged  errors,  not  presented  by  a  bill  of  exceptions,  nor 
ajiparent  on  the  face  of  the  record,  are  not  the  proper  subjects  of 
reexamination  by  writ  of  error  in  this  court. 

Parties  dissatisfied  with  the  ruling  of  a  subordinate  court,  and 
intending  to  seek  a  revision  of  the  same  in  the  appellate  court,  must 
take  care  to  raise  the  questions  to  be  reexamined,  and  must  see  to 
it  that  the  questions  are  made  to  appear  in  the  record ;  for  nothing 
is  error  in  law  except  what  is  apparent  on  the  face  of  the  record  by 
bill  of  exceptions,  or  an  agreed  statement  of  facts,  or  in  some  one 
of  the  methods  known  to  the  practice  of  courts  of  error  for  the  ac- 
complishment of  that  object.  Suydam  v.  IVilliamson,  20  How.  (U. 
S.)  433;  Garland  v.  Davis,  4  How.  (U.  S.)  131;  Steph.  on  Plead. 
121 ;  SlactDii  V.  Pomcroy,  6  Cr.  (U.  S.)  221 ;  Strother  v.  Hutchinson, 
4  Bing.  N.  C.  83.^= 

Affirmed. 


"Accord:  I'an  Garden  v.  Jackson  ex  dcm.  Bogardus,  5  Johns.  (N.  Y.) 
440,  467  (1809)  ;  Frier  v.  Jackson,  8  Johns.  (N.  Y.)  495  (1811)  ;  Traiibe  v. 
Coleman,  i  A.  K.  Mar.  (Ky.)  233  (1818)  ;  Coburn  v.  Murray,  2  Maine  336 
(1S23)  ;  CoUey  v.  Merrill,  6  Maine  50  (1829)  ;  I^ozvcll  V.  Sedgwick,  5  Whart. 
(Pa.)  336  (1839);  Keefer  v.  MattingJy,  i  Gill.  (Md.)  182  (1843);  Ward  v. 
Ward,  22  N.  J.  L.  699  (1850)  ;  Gordon  v.  McLeod,  20  Ala.  242  (1852)  ;  Hen- 
dricks County  Seminary  v.  Matlock,  9  Ind.  114  (1857);  Miller  v.  Hcrshcv. 
59  Pa.  St.  tA  (1868);  Train  v.  Gridlcy,  36  Ind.  241  (1871)  ;  Russell  v. 
Dcnnison,  45  Cal.  337  (1873)  ;  Tenipleton  v.  Krancr,  24  Ohio  St.  554  (1874)  ; 
Ncely  V.  Wright,  72  111.  292  (1874);  Cogan  V.  Cook,  22  Minn.  137  (1875); 
Standard  Oil  Co.  v.  Amazon  Gas  Co.,  79  N.  Y.  506  (18S0)  ;  Standish  v.  Old 
Colony  R.  Co.,  129  Mass.  158  (1S80)  ;  Martin  V.  Fonlkc,  114  111.  206,  29  N.  E. 
683  (1S85)  ;  Tasker  v.  Sheldon,  m  Pa.  St.  107.  7  Atl.  762  (1887)  ;  Ditryea  v. 
Vosbnrgh,  i2i'^7Yrs77 2^  N.  E.  308  (1890)  ;  Wicks  v.  Thompson,  129  N.  Y. 
634,  29  N.  E.  301  (1891)  ;  Pavne  v.  Diciis,  88  Iowa  423,  55  N.  W.  483  (1893)  ; 
Finrh  V  Cnnrnde.  i=,A  Pa  St.  -^26,  26  Atl.  368  (1893)  ;  Potts  V.  Evans,  58  N.  J. 
£7384,  34  Atl.  4  (1895)  ;  Meaderv.  Cornell,  58  N.  J.  L.  375,  33  Atl.  960  (1895)  ; 
Jung  V.  Keuffel,  144  N.  Y.  381,  39  N.  E.  340  (1S95)  ;  Wilson  v.  V/ilson,  93 
Va.  546,  25  S.  E.  596  (1896)  ;  La  Grange  Bank  v.  Cotter,  loi  Ga.  134.  28  S.  E. 
644  (1897);  A''.  Y.  Life  Ins.  Co.  v.  Macoviber,  169  ]\Iass.  580,  48  N.  E.  776 
(1897)  ;  Phillips  V.  Shack  ford,  21  R.  I.  422,  44  Atl.  306  (1899)  ;  Post  v.  Hart- 
ford S.  Ry.,  72  Conn.  362,  44  Atl.  547  (1899)  ;  Marshall  v.  John  Grosse  Cloth- 
ing Co.,  184  111.  421,  56  N.  E.  807,  75  Am.  St.  181  (1900)  ;  Netherlands  S.  S. 
Co.  V.  Diamond,  128  Fed.  570  (1904);  McDowell  v.  Kent,  153  N.  Car.  555, 
69  S.  E.  626  (1910)  ;  Kunkel  v.  Chicago  Consolidated  Tr.  Co.,  156  111.  App. 
393  (1910)  ;  fry_v_  Kfiter.  A^  Pa.  .Super.  Ct.  ■^^8  (iQii)  ;  Donovan  v.  Davis, 
85  Conn.  394rS2  Atl.  1025  (1912)";  Skeele  Coal  Co.  v.  Arnold,  200  Fed.  393 
(1912)  ;  Cressey  v.  Cressey,  213  Mass.  191,  99  N.  E.  972  (1912)  ;  Mower  v. 
Beard,  212,  Mass.  198,  99  N.  E.  971  (1912)  ;  Given  v.  Johnson,  213  Mass.  251, 
100  N.  E.  369  (1913)  ;  Bens  v.  Central  R.  Co.,  82  N.  J.  L..  197,  82  Atl.  431 
(1912);  People  V.  Board  of  Review,  263  111.  326,  105  N.  E.  128  (1914); 
Britt  V.  East  Side  H.  Co.,  25  Cal.  231,  143  Pac.  244  (1914)  ;  Payne  v.  State, 
10  Ala.  App.  85,  65  So.  262  (1914)  ;  Norton  v.  Pacific  P.  &  L.  Co.,  79  Wash. 
625,  140  Pac.  905  (1914)  ;  Alwart  Bros.  Coal  Co.  v.  Royal  Colliery  Co.,  211 
Fed.  313  (1914);  Tyler  v.  Woerner,  158  Ky.  710,  166  S.  W.  178  (1914)- 
An  exception  is  as  necessary  when  the  question  comes  up  on  case-made  as  on 
bill  of  exceptions  and  writ  of  error.  Turner  v.  Grand  Rapids,  20  Mich.  390 
(1870). 


NALLE   V.    OYSTER  879 

NALLE  V.  OYSTER 

Supreme  Court  of  the  United  States,  1913 

230  C7.  S.  165 

Writ  of  error  to  review  a  judgment  of  the  Court  of  Appeals  of 
the  District  of  Columbia  affirming  a  judgment  of  the  Supreme  Court 
of  the  district  in  favor  of  the  defendant  in  an  action  for  libel.  The 
first  count  of  the  declaration  averred  that  the  defendants,  members 
of  tlie  board  of  education,  had  published  a  false  and  defamatory 
libel  concerning  the  plaintiff,  a  teacher.  To  the  first  count  the  de- 
fendants demurred  and  the  demurrer  was  sustained.  The  court  of 
appeals  affirmed  judgment  for  the  defendants,  ignoring  the  first 
count  because  no  exception  was  taken  by  plaintiff  to  the  ruling  of 
the  court  sustaining  the  demurrer.®^ 

Pitney,  J. :  Respecting  the  necessity  for  an  exception  to  the 
court's  ruling  in  sustaining  the  demurrer  to  the  first  count,  counsel 
for  defendants  in  error  have  not  attempted  to  uphold  the  position 
taken  by  the  court  of  appeals.  The  court  cited  no  statute,  rule  or 
other  authority  for  its  position,  and  we  have  been  unable  to  find 
any. 

The  practice  of  bills  of  exceptions  is  statutory.  By  the  ancient 
common  law,  a  writ  of  error  lay  only  for  an  error  in  law  apparent 
upon  the  judgment  roll — what  is  now  called  the  "strict  record"- — or 
for  an  error  in  fact,  such  as  the  death  of  a  party  before  judgment. 
(See  Green  v.  Watkins,  6  Wheat.  (U.  S.)  260-263.)  For  an  errone- 
ous decision  that  did  not  appear  upon  the  record  there  was  no  redress 
by  writ  of  error.  To  relieve  this,  the  Stat.  Westm.  II,  13  Edw.  I, 
ch.  31  (i  Eng.  Stat,  at  L.  99;  Bac.  Abr.,  title  "Bill  of  Exceptions"), 
v/as  enacted  more  than  six  hundred  years  ago,  providing  that  one 
who  alleged  an  exception  should  write  it  out  and  require  the 
justices  to  put  their  seals  to  it,  and  that  if  upon  review  "the  excep- 
tion be  not  found  in  the  roll,  and  the  plaintiff  show  the  exception 
written,  with  the  seal  of  the  justice  put  to,  the  justice  shall  be  com- 
manded that  he  appear,  etc.,  and  if  he  can  not  deny  his  seal  they 
shall  proceed  to  judgment  according  to  the  exception,"  etc.  Under 
this  act,  and  state  statutes  modeled  after  it,  it  has  always  been  held 
the  error  appearing  upon  the  face  of  the  record  may  be  assigned 
as  groimd  for  reversal,  although  no  exception  be  taken.^^   And,  on 


*°Tlie  statement  of  facts  is  abridged  from  the  opinion  of  the  court  and 
only  so  much  of  the  case  given  as  relates  to  writs  of  error.  On  the  merits  of 
the  question  raised  by  the  defendant's  demurrer  to  the  first  count  it  was  held 
that  the  court  erred  in  sustaining  the  demurrer  and  judgment  was  reversed. 

"Citing  Slacurn  v.  Pomery,  6  Cranch.  (U.  S.)  221,  3  L.  ed.  204  (1810)  ; 
Mocker's  Heirs  v.  Thomas,  7  Wheat.  (U.  S.)  530,  5  L.  ed.  515  (1822)  ; 
Woodward  v.  Brown,  13  Pet.  (U.  S.)  i,  10  L.  ed.  31  (1839)  ;  Bennett  v. 
Butterworth,  li  How.  (U.  S.)  669,  13  L.  ed.  859  (1850)  ;  Siiydam  v.  William- 
son, 20  How.  (U.  S.)  427,  15  L.  ed.  978  (1857)  ;  Nciv  Orleans  Insurance  Co. 
V.  Piacjgio,  16  Wall.  (U.  S.)  378,  2i_  L.  ed.  358  (1872)  ;  Bait.  &  Potomac  R. 
Co.  V.  Trustees  of  Sixth  Presbyterian  Church,  91  U.  S.  127,  23  L.  ed.  260 


S8o  Arrr.AL  and  i-.kror 

the  other  hand,  tlic  funclitMi  of  an  cxccplion  is  not  confined  to  rul- 
ings made  ujion  the  trial  of  the  action.  As  pointed  out  by  Lord 
Coke  (2  Inst.  427)  :  "This  (i.  c.,  an  exception  taken  under  the  Stat. 
W'cstni.  11)  extendeth  not  only  to  all  pleas  dilatory  and  peremptory, 
etc.,  and  (as  hath  been  said)  to  prayers  to  be  received,  oyer  of  any 
record  or  deed,  and  the  like;  but  also  to  all  challcnj^es  of  any  jurors, 
and  any  material  evidence  given  to  any  jury,  which  by  the  court  is 
overruled."  And  see  Defiance  Fruit  Co.  v.  Fox,  76  N.  J.  L.  482,  489. 
Except  as  modi'aed  by  statute,  the  practice  of  the  courts  of  the 
District  of  Columbia  is  modeled  upon  that  which  obtained  in  the 
courts  of  Maryland  at  the  time  of  the  cession.  Act  of  February  27, 
1801,  section  i,  2  Stat.  103,  chapter  15.  By  act  of  INIarch  2,  1889,  25 
Stat.  872,  chapter  392,  Congress  provided  for  the  making  and  publish- 
ing of  a  compilation  of  the  laws  then  in  force  in  the  district,  to  be 
made  by  commissioners  appointed  by  the  Supreme  Court  of  the  dis- 
trict. The  result  was  the  Abert  &  Lovejoy  Compilation,  and  in  it  (p. 
442,  section  5)  the  Stat.  Westm.  II  (13  Edw.  I,  chapter  31,  section  i) 
is  included.  Lender  the  settled  practice  in  Maryland  (as  elsewhere) 
under  that  statute,  a  bill  of  exceptions  is  unnecessary  and  inappro- 
priate for  bringing  under  review  a  ruling  of  the  court  upon  a  de- 
murrer to  the  pleadings,  since  the  pleadings  form  a  part  of  the  record 
and  show  upon  their  face  the  facts  upon  which  the  question  of  law  is 
raised.^^ 

(1875).  Accord:  Hamlin  v.  Reynolds,  22  111.  207  (1859)  Coffman  v.  Wilson, 
2  Mete.  (Kv.)  542  (18^9);  Mix  v.  Nettlcton,  29  111.  245  (1862);  Wiggins 
~Fcrry  Co.  V.' People,  loi  111.  446  (1882)  ;  Barnes  v.  Scott,  29  Fla.  285,  n  So.  48 
(1892)  ;  Nylan  V.  Renhard,  10  Colo.  App.  46,  49  Pac.  266  (1897)  ;  Garfield  Co. 
V.  Leonard,  26  Colo.  145,  57  Pac.  693  (1899)  ;  Murray  v.  Sontherland,  125  N. 
Car  17^,  34  S.  E.  270  (1899) ;  Dow  v.  Dcissner,  105  Wis.  385,  80  N.  W.  940, 
81  N.  W.  671  (1900)  ;  Merker  v.  Belleville  Distillery  Co.,  122  111.  App.  326 
(1905)  ;  Hanson  v.  Ncal,  21s  Mo.  256,  114  S.  W.  1073  (1908)  ;  Hartford  Fire 
Ins.  Co.  V.  Hollis,  58  Fla.  268,  50  So.  985  (1909)  ;  Plattcter  v.  Paulson-Elhng- 
son  Lumber  Co.,  149  Wis.  186,  135  N.  W.  535  (1012).  Contra:  Hews  w.  Stone- 
hraker  132  Iowa  608,  109  N.  W.  1092  (1906)  ;  Guthrie  v.  Fisher,  2  Idaho  102, 
6  Pac.  Ill  (1885)  ;  Cowan  v.  Huffman,  130  Ind.  600,  28  N.  E.  619  (1892)  ; 
Petersborough  Bank  v.  Des  Moines  Sav.  Bank,  no  Iowa  519,  81  N.  W.  786 
( 1900)  ;  Gleason  v.  McGinnis,  30  Ind.  App.  4,  65  N.  E.  191  ( 1902)  ;  so  also 
where  judgment  for  want  of  a  sufficient  affidavit  of  defense  is  refused. 
1ju^^2dlh-  ^  '^  ^  '^'"'  '^-  ^"^^''<^^"'^-  92  Pa.  St.  364  (1879)  ;  Sj_cnrity_S_^Co. 
yr-^^[^f^;r;Z, ^  T?;?  P^  .sT"^?;r"74'7u[rArTTgQ51T~Ang~see  Norton  v.  Lilley, 
210  Mass.  214,  96  N.  E.  351  (191 1 ).  Generally,  an  error  apparent  on  the  face 
of  the  record  may  be  reviewed  by  the  appellate  court  although  no  exception 
was  taken  thereto.  Rathbone  v.  Rathbone,  4  Pick.  (Mass.)  89  (1826)  ;  H offer 
V.  Wight  man,  5  Watts  (Pa.)  205  (1836);  Sand  ford  v.  Granger,  12  Barb. 
(N.  Y.)  392  (1852)  ;  Mills  v.  Thursbv,  12  How.  Pr.  (N.  Y.)  385,  2  Abb.  Pr. 
432  (1856)  ;  In  reFranksiQwnJluziiiiks^^  (1856)  ;  Terri- 

tory V.  VirgtmalV~Co.,  2  Mont.  96  (1874)  ;  Wiggins  Ferry  Co.  v.  People, 
1 01  111.  446  (1882)  ;  Morgan  v.  Botsford,  82  Mich.  153,  46  N.  W.  230  (1890)  ; 
Cullop  V.  Leonard,  97  Va.  256,  33  S.  E.  611  (1899)  ;  Griffith  v.  Richmond,  126 
X  Car  377,  35  S.  E.  620  (1900)  ;  In  re  Middtetown  Road,  15  Pa.  ^uper^  Ct. 
167  (1900);  Grissom  v.  Beidlemalh~35  Ukia.  343,  129  Pac."'^3  (I912I  ; 
Fisher  v.  Leader  Pub.  Co.,  22a^Pa,_2gq,M^At\.  776  (1913)  ;  Hynds  v.  Hynds, 
2^3  Mo.  20,  161  S.  W7gi2  Ti9i3)-  .,  ,,  „  -, ,       o 

""Blake  V.  Pitcher,  46  Md.  4.=^3  (1877)  ;  Wilson  v.  Merryman,  48  Md.  328 
(1877)  ;  Lee  v.  Rutlcdge,  51  Md.  311  (1878)  ;  Davis  v.  Carroll,  71  Md.  508, 
18  Atl.  965  (1889). 


SIBLEY   V.    LEEK  88 1 

By  the  "Act  to  establish  a  code  of  law  for  the  District  of  Colum- 
bia," approved  March  3,  1901,  31  Stat.  1189,  ch.  854,  Congress  en- 
acted that  the  common  law,  and  all  British  statutes  in  force  in  Mary- 
land on  the  twenty-seventh  day  of  February,  eighteen  hundred  and 
one,  should  remain  in  force,  except  so  far  as  inconsistent  with  or 
replaced  by,  some  provision  of  the  code.  We  find  nothing  in  the  code 
or  in  the  rules  of  practice  established  under  it,  to  require  an  excep- 
tion in  order  that  an  error  apparent  upon  the  record  may  be  re- 
viewed. 


SIBLEY  v.  LEEK 

Supreme  Court  of  Arkansas,  1885 

45  Arh.  346 

Appeal  from  Pulaski  Circuit  Court. 

Smith,  J.:  The  cause  of  action  was  the  killing  of  live  stock  by 
the  train  of  a  railroad  operated  by  a  receiver.  The  action  was  begun 
before  a  justice  of  the  peace,  and  damages  were  laid  at  S130.  The 
question  of  jurisdiction  has  not  been  raised,  but  can  not  be  over- 
looked. As  the  damages  claimed  exceeded  $100,  and  arose  out  of  an 
injury  to  personal  property,  the  justice  had  no  jurisdiction  over 
the  subject  matter  of  the  controversy.  Constitution  of  1874,  article 
7,  section  40;  Little  Rock,  &c.,  R.  Co.  v.  Manees,  44  Ark.  loo.^^^ 

The_  judgment  of  the  Pulaski  Circuit  Court  is  vacated  and  the 
cause  dismissed. 


*'aThat  the  court  below  was  without  jurisdiction  of  the  subject  matter 
of  the  action  or  proceeding  may  be  first  raised  on  appeal  or  the  appellate 
court  may  on  its  own  motion  notice  such  want  of  jurisdiction.  Mansfield 
Cold.  &  L.  M.  R.  Co.  V.  Swan,  iii  U.  S.  379,  28  L.  ed.  462  (1883)  ;  Morris  v. 
Gilmer,  i2g  U.  S.  315,  32  L.  ed.  690  (1889)  ;  Wyaif  v.  Judge,  7  Port.  (Ala.)  37 
(1838)  ;  Gifford  v.  Thorn,  7  N.  J.  Eq.  90  (1848)  ;  Green  v.  Creighton,  18  Miss. 
(10  Sm.  &  M.)  159,  48  Am-.  Dec.  742  (1848)  ;  Gilland  v.  Sellers,  2  Ohio  St.  223 
(1853)  ;  Wildman  v.  Rider,  23  Conn.  172  (1854)  ;  Steamboat  Bncll  v.  Long, 
18  Ohio  St.  521  (1867);  Riley  V.  Lowell,  117  Mass.  76  (1875);  Graham  v. 
Ringo,  67  Mo.  324  (1S78)  ;  Groves  v.  Richmond,  53  Iowa  570,  5  N.  W.  763 
(1880)  ;  Schiff  v.  Solomon,  57  Md.  572  (1882)  ;  Fiester  v.  Shephard,  92  N.  Y. 
251  (1883);  Fowler  v  Eddy,  110  Pa  St.  117,  I  Atl.  789  (1885);  Smazv  v. 
Cohen,  95  N.  Car.  85  liHiib)  )  FlanVWamTfactiiring  Co.  v.  Racev,  69  Wis.  246, 
34  N.  W.  85  (1887)  ;  Buffalo  V.  Pocahontas,  85  Va.  222,  7  S.  E.  238  (1888). 
Objection  to  the  jurisdiction  of  the  person  must  be  made  below.  Bradstreet 
V.  Thomas,  12  Pet.  (U.  S.)  59,  9  L.  ed.  999  (1838)  ;  Rhode  Island  v.  Massa- 
chusetts, 12  Pet.  (U.  S.)  657,  9  L.  ed.  1233  (1838)  ;  Davis  v.  McEnaney,  150 
Mass.  451,  23  N.  E.  221  (1890)  ;  Perkins  v.  Hayward,  132  Md.  95,  31  N.  E. 
670  (1892)  ;  Wells  v.  Patton,  50  Kans.  732,  33  Pac.  15  (1893)  ;  In  re  Thomp- 
son, loi  Cal.  349,  35  Pac.  991,  36  Pac.  98  (1894)  ;  North  Hudson  Co.  Ry.  v. 
Flannagan,  57  N.  J.  L.  696,  32  Atl.  216  (1895)  ;  Adams  v.  Crown  Coal  Co., 
198  111.  445,  65  N.  E.  97  (1902);  Singleary  v.  Boerner-M orris  Candy  Co., 
129  Ky.  556,  112  S.  W.  637  (1908)  ;  McCullough  v.  Railway  Mail  Assn..  22; 
Pa.  118,  73  Atl.  1007  (1909)  ;  Hill  v.  Walker,  167  Fed.  241  (1909)  T"^ 

56 — Civ.  Prog. 


8^J  APPEAL   AND   ERROR 

CHISM  V.  SMITH 

Supreme  Court  of  New  York,  Appellate  Division,  1910 
13S  App.  Div.  (N.  Y.)  715 

The  plaintiffs  were  owners  of  land  bordering  Lake  George,  in- 
cluding avenues  and  streets,  one  of  which  known  as  White  avenue 
ran  to  the  lake  shore.  The  defendant  built  a  boat  house  and  dock 
for  his  private  use  beyond  low-water  mark  directly  across  what 
would  have  been  White  avenue,  had  it  extended  into  the  water,  and 
also  in  front  of  block  13.  The  plaintiffs  brought  an  action  of  eject- 
ment, on  the  trial  of  which  judgment  was  given  ejecting  the  defend- 
ant from  tliat  part  of  his  boat  house  and  pier  in  the  lake  adjacent  to 
block  13,  but  refusing  judgment  so  far  as  the  same  was  adjacent  to 
White  avenue.    Both  plaintiff  and  defendant  appealed.®" 

Houghton,  J. :  We  are  of  the  opinion  that  the  complaint  should 
have  been  dismissed  on  the  ground  tliat  an  action  of  ejectment  is 
not  the  proper  remedy.  While  the  owners  of  uplands  have  the  right 
of  access  to  the  water  and  the  right  to  build  such  docks  and  piers 
from  such  lands  into  the  water  as  will  not  interfere  witli  naviga- 
ion,  this  right  is  only  an  appurtenance  or  easement  incident  to  the 
ov/nership  of  the  uplands.  If  a  private  person  builds  any  structure 
which  interferes  witli  this  littoral  right  of  the  owner  of  the  upland 
he  can  by- appropriate  action  cause  its  removal.  Not,  however,  by 
ejectment,  for  the  right  to  eject  depends  upon  superior  title  to  the 
land  itself.  Such  rights  incident  to  the  ownership  of  the  shore  are 
incorporeal  hereditaments.  Ejectment  does  not  lie  for  an  incor- 
poreal hereditament  but  only  for  a  corporeal  hereditament  of  which 
a  sheriff*  can  deliver  possession.  Rozvan  v.  Kelsey,  18  Barb.  (N.  Y.) 
484;  Moore  v.  Brown,  139  N.  Y.  127;  Butler  v.  Frontier  Telephone 
Co.,  186  N.  Y.  486.  It  is  apparent  that  the  sheriff  could  not  put  the 
plaintiffs  in  possession  of  lands  not  belonging  to  them  but  belonging 
to  the  people  of  the  state,  whatever  the  character  of  the  defendant's 
occupation  might  be. 

Notwithstanding  the  claim  of  the  plaintiffs  on  tlie  trial  and  upon 
the  argument  on  appeal  that  the  action  is  purely  one  of  ejectment 
and  that  it  is  maintainable  as  such,  it  is  suggested  that  the  action 
may  be  treated,  in  view  of  the  answer  of  defendant,  as  an  equitable 
action  for  the  removal  of  structures  interfering  with  plaintiff's  right 
in  tlie  waters  of  the  lake.  The  defendant  plead  several  special  de- 
fenses, all,  however,  tending  to  defeat  the  plaintiffs'  title.  All  the 
evidence  introduced  upon  the  trial  was  pertinent  to  an  action  of 
ejectment.  At  the  close  of  the  plaintiffs'  case  the  defendant  moved 
for  dismissal  of  the  complaint  on  the  ground  that  the  plaintiffs  had 
shown  no  title  to  the  property  in  question,  and  in  his  requests  to  the 
court  to  find  he  specifically  asked  the  court  to  rule  that  the  action 


**The  statement  of  facts  is  from  the  opinion  of  the  court,  part  of  which 
is  omitted. 


CHISM    V.    SMITH  883 

was  not  maintainable  and  that  an  incorporeal  hereditament  could  not 
be  recovered  in  an  action  of  ejectment.  The  learned  counsel  for 
the  plaintiffs  in  his  brief  says  that  the  gist  of  the  defendant's  objec- 
tion to  recovery  by  plaintiffs  v^as  that  the  dock  (as  well  as  the  boat- 
house)  was  not  proved  to  be  on  land  belonging  to  plaintiffs.  There 
was  not,  therefore,  either  on  the  trial  or  tlie  argument  on  appeal  any 
abandonment  by  plaintiffs  of  the  position  that  ejectment  would  lie, 
or  surrender  by  the  defendant  of  his  attitude  that  ejectment  was  not 
the  proper  remedy,  and  it  would  be  doing  violence  to  the  pleadings 
and  the  course  of  the  trial  to  treat  the  present  action  as  one  in  equity 
when  all  parties  have  consistently  maintained  that  it  was  one  at 
law.»° 

Judgment  reversed  and  new  trial  granted. 

Kellogg,  J.,  and  Smith,  P.  J.,  dissent. 

""The  appellate  court  will  determine  a  cause  on  the  theory  on  which  it 
was  tried  in  the  court  below.  Stapenhorst  v.  Wolff,  65  N.  Y.  596  (1875)  ; 
Larison  v.  Pohlmus,  39  N.  J.  Eq.  303  (1884)  ;  Walls  v.  Campbell,  125  Pa.  St. 
346,  17  Atl.  422  (18S9)  ;  Biirbank  v.  Bigclow,  154  U.  S.  558,  19  L.  ed.  51 
(1893)  ;  Pillars  V.  McConnell,  141  Ind.  670,  40  N.  E.  689  (1895)  ;  Galligan  v. 
Old  Colony  St.  R.  Co.,  182  Mass.  211,  65  N.  E.  48  (1902)  ;  Lesser  Cotton  Co. 
V.  St.  Louis  R.  Co.,  114  Fed.  133  (1902)  ;  Indemnity  Co.  v.  Thompson,  83  Ark. 
575,  104  S.  W.  200,  10  L.  R.  A.  (N.  S.)  io64n  (1907);  Madison  v.  Octavia 
Oil  Co.,  154  Cal.  768,  99  Pac.  176  (1908)  ;  Conk  ling  v.  Standard  Oil  Co., 
138  Iowa  596,  116  N.  W.  822  (1908)  ;  Planters  P.  Co.  v.  Webb,  156  Ala.  551, 
46  So.  977  (1908)  ;  Edgewater  &  Ft.  L.  R.  Co.  v.  Valvolene  Oil  Co.,  76  N.  J. 
L.  789,  72  Atl.  85  (1908)  ;  Hunter  v.  Allen,  127  App.  Div.  572,  in  N.  Y.  S.  820 
(1908)  ;  Dolinski  v.  First  Nat.  Bank  of  Piftsbttrg  (Tex.  Civ.  App.),  122 
S.  W.  276  (1909);  Gelford  v.  Hatford,  85  Conn.  689,  84  Atl.  85  (1912)  ; 
American  Sales  B.  Co.  v.  Pope,  7  Ala.  App.  304,  61  So.  45  (1913)  ;  American 
Surety  Co.  of  N.  Y.  v.  Spice,  119  Md.  i,  85  Atl.  1031  (1913)  ;  Richardson  y. 
Flozver  248  Pa.  35,  93  Atl.  777  (1915)  ;  Schuls  v.  New  York  S.  &  W.  R.  Co. 
UN.  J  J,  94  Atl.  579  (igiD- 

So,  generally,  an  appellant  will  not  be  permitted  to  take  advantage  of 
errors  for  which  he  himself  was  responsible.  Clcmson  v.  President  & 
Directors  of  State  Bank,  2  111.  (i  Scam.)  45  (1832)  ;  Miidget  v.  Kent,  18 
Maine  349  (1841)  ;  Willinms  v.  Cnrr^  i_  Rawle  (PaJ  420  (1829)  ;  Shropshire 
V.  McClain,  6  Ark.  438  (1846)  ;  Robitison  v.  While,  42  Maine  209  (1856) 
Denny  v.  Moore,  13  Ind.  418  (1859)  ;  Nezvton  v.  Allis,  16  Wis.  197  (1862) 
West  V.  Lynn,  no  Mass.  514  (1872)  ;  Fish  v.  Bangs,  113  Mass.  123  (1873) 
Wilson  V.  Blake,  53  Vt.  305  {iSSo)  ; ^Benson  y.  Maxwell.  loq  Pa.  Sj.  274 
(1884)  ;  Marx  v.  Heidenheimer,  63  Tex.  304  (1885)  ;  McGi7/m  v.  Bennett. 
132  U.  S.  445,  33  L.  ed.  422  (1889)  ;  Harris  v.  Lloyd,  11  Mont.  390,  28  Pac. 
736,  28  Am.  St.  475  (1891)  ;  Williams  v.  Lillcy,  67  Conn.  50,  34  Atl.  765,  37 
L.  R.  A.  150  (1895)  ;  Warren  v.  Sheldon,  173  111.  340,  50  N.  E.  1065  (1898)  ; 
People  v.  Offerman,  84  111.  App.  132  (1899)  ;  Poehler  v.  Reese,  78  Minn.  71,  80 
N.  W.  847  (1899)  ;  Lewis  v.  Tapnian,  90  Md.  294,  45  Atl.  459,  47  L.  R.  A.  385 
(1900);  Pantall_v  Rochester  Coal  Co.,  204  Pa.  158,  53  Atl.  751  (1902); 
Eppens  V.  LittTeJotm,  104  IN.  Y.  187,  5«  JNI.  E.  195,  2  L.  K.  A.  8"ii  (iQOo)  ; 
Zimmerman  v.  Harding,  227  U.  S.  489,  57  L.  ed.  608  (1913)  ;  Davidson  Emit 
Co.  V.  Produce  Distributors  Co.,  74  Wash.  551,  134  Pac.  510  (1913)  ;  Chicago 
&  E.  R.  Co.  v.  Ohio  City  Lumber  Co.,  214  Fed.  751  (1914)  ;  Himter  v.  W.  M. 
Roylance  Co.,  45  Utah  135,  143  Pac.  140  (1914). 


SS4  APPEAL   AXD   ERROR 

GLINES  r.  CROSS 
Court  of  Queen's  Bench  for  AIanitoba,  1899 

IJ  Manitoba  442 

Plaintiff  sued  to  recover  a  commission  upon  a  sale  of  land, 
claimed  to  have  been  effected  by  tliem  for  the  defendant.  Judjjmcnt 
was  at  lirst  given  for  the  plaintiffs  for  $375,  the  full  amount  claimed, 
but  upon  application  under  section  308  of  the  County  Courts  Act, 
this  amount  was  reduced  by  one-half.  Plaintiffs  appealed  upon  the 
grounds  that  the  clause  did  not  give  power  to  make  tlie  reduction 
and  that  plaintiffs  were  entitled  to  the  full  amount.'-^^ 

L.  Cleans  for  plaintiffs. 

C.  P.  Wilson  for  defendant.  Defendant  submits  that  it  was  not 
shown  that  the  plaintiff's  were  the  real  moving  cause  of  the  sale  and 
that  in  strictness  they  should  not  recover  anything.  Whit  comb  v. 
Bacon,  170  Mass.  479,  49  N.  E.  742;  Glasscock  v.  Vanfleet,  100 
Tenn.  603,  46  S.  W.  449.  Upon  this  appeal  the  court  can  set  aside 
the  judgment  entirely.  Rockzvood  Election  Case,  2  Manitoba  129. 
In  any  event  the  judgment  appealed  from  can  not  be  disturbed. 

KiLLA^r,  J. :  It  is  claimed  by  the  defendant  that  the  plaintiff's 
were  not  entitled  to  any  compensation,  and  he  asks  the  court  to  set 
aside  entirely  the  judgment  for  the  plaintiff,  although  he  has  not 
appealed.  I  do  not  think  tliat  this  course  is  now  open.  The  County 
Courts  Act,  as  amended  by  59  Vic,  chapter  3,  section  2  (M.  1896), 
gives  to  any  party  dissatisfied  with  a  judgment  of  a  county  court  an 
opportunity  to  obtain  relief  by  an  appeal.  It  does  not  appear  to 
contemplate  his  obtaining  it  without  taking  upon  himself  the  burden 
of  a  direct  appeal.^-  By  section  319  the  appeal  is  to  be  brought  into 


"Only  so  much  of  the  case  as  relates  to  the  appeal  is  printed. 

^*A  defendant  in  error  or  appellee  can  not  have  affirmative  relief  as  to 
matters  upon  Vvhich  he  has  not  appealed  or  brought  error.  Canter  v.  Ameri- 
can Ins.  Co.  of  New  York,  3  Pet.  (U.  S.)  307,  7  L-  ed.  688  (1830)  ;  Glassncr 
v  Wheatoii,  2  E.  D.  Smith  (N.  Y.)  352  (1854);  Bush  v.  Schooner  Aionso, 
2  Cliff.  (U.  S.)  ^48  (1866)  ;  The  Maria  Martin,  12  Wall.  (U.  S.)  31,  20  L.  ed. 
251  (1870)  ;  Bnndy  v.  Youmans,  44  Mich.  376,  6  N.  W.  851  (1880)  ;  Hoff  v. 
Hoff,  48  Mich.  281,  12  N.  W.  160  (1S82)  ;  May  v.  Gates,  137  Mass.  389  (1884)  ; 
Texas  &  N.  O.  R.  Co.  v.  Skinner,  4  Tex.  Civ.  App.  661,  23  S.  W.  1001  (1893)  ; 
United  States  v.  Blackfcather,  135  U.  S.  180,  39  L.  ed.  114  (1894)  ;  I^ane  v. 
Parsons,  108  Iowa  241  (1809)  ;  Bolles  v.  Outing  Co.,  175  U.  S.  262,  44  L.  ed. 
156  (1899)  ;  Southern  Pine  Lumber  Co.  v.  Ward,  208  U.  S.  126,  52  L.  ed.  420 
(1907)  ;  Masters  v.  IVavne  Automobile  Co.,  198  Mass.  25,  84  N.  E.  103  (1908)  ; 
McElroy  v.  McCarvill'e  (R.  I.),  71  All.  646  (1909);  Herpel  v.  Hcrpel,  162 
Mich.  606,  127  N.  W.  763  (1910)  ;  Vanhoose  v.  Wheeler,  141  Ky.  746,  133  S.  W. 
779  (1911)  ;  Smith  v.  Diamond  Ice  Co.,  65  Wash.  576,  118  Pac.  646  (1911)  ; 
Portuguese  Fraternity  v.  Liberty  Trust  Co.,  21 S  Mass.  27,  102  N.  E.  96  (1913)- 
So,  in  the  absence  of  a  statute  authorizing  a  different  practice,  an  appellee  or 
defendant  in  error  who  takes  no  appeal  or  writ  of  error,  is  not  entitled  to 
have  the  appellate  court  consider,  review  or  decide  rulings  against  him  below. 
Texas  Co.  v.  Central  Fuel  Oil  Co.,  194  Fed.  I  (1912)  ;  Chittenden  v.  Brevrtcr, 
69  U.  S.  (2  Wall.)  191,  17  L.  ed.  839  (1864)  ;  The  Stephen  Morgan,  94  U.  S. 


199,  24  L.  ed.  266  (1876)  ;  Scotten  v.  Sutter,  37  Mich,  526  (1877)  ;  T^'^^o  & 
inn  Arbor  R.  Co.  v.  Johnson,  49  Mich.  148,  13  K.  W.  49^  (18S2)  ;  Holdsom- 


599, 
A 


GLINES   v.    CROSS  885 

this  court  by  praecipe,  which,  under  section  320,  is  to  set  out  the 
nature  of  the  apphcation  and  the  grounds  therefor.  No  provision  is 
made  for  any  notice  by  a  respondent  of  his  objections  to  the  judg- 
ment. Subject  to  the  powers  of  amendment,  the  questions  to  be  con- 
sidered and  the  rehef  to  be  given  on  the  appeal  are  such  as  are 
raised  or  sought  by  the  praecipe,  or  as  may  be  incident  thereto.  The 
opinion  cited  from  the  Rockwood  Election  Case,  2  Manitoba  129, 
while  entitled  to  the  highest  respect,  Vv^as  that  of  only  one  member  of 
the  court  upon  a  point  not  considered  by  the  other  members,  and  it 
referred  to  an  entirely  different  statute. 

On  the  other  hand,  I  think  that  the  objection  to  a  reconsideration 
of  his  judgment  by  the  judge  of  the  county  court  entirely  fails.  Sec- 
tion 308  authorizes  a  reversal  or  a  variation  of  the  judgment,  and 
the  reduction  in  amount  was  certainly  a  variation. 

Bain,  J. :  The  defendant  has  not  appealed  against  the  judgment, 
so  we  have  not  to  consider  if  it  was  proper  that  the  plaintiffs  should 
recover  for  their  services ;  but,  assuming  that  it  v/as,  I  think  the 
amount  allowed  by  the  county  court  judge  was  quite  sufficient  com- 
pensation. 

Dubuc,  J.,  concurred. 

Appeal  dismissed  with  costs. ^^ 


heck  V.  Fancher,  112  Ala.  469,  20  So.  519  (1895)  ;  Cox  v.  Stokes,  150  N.  Y. 
491,  51  N.  E.  316  (1S98)  ;  South  San  Bernardino  &c.  Co.  V.  San  Bernardino 
Nat.  Bank,  127  Cal.  245,  59  Pac.  699  ( 18Q9)  ;  Hinklev  V.  Reed,  182  111.  440,  55  N. 
E.  32,7  (1899)  ;  Rose  v.  Hale,  185  111.  378,  56  N.  E.  1073,  76  Am.  St.  40  (1900)  ; 
Moy  v.  Moy,  iii  Iowa  161,  S2  N.  W.  481  (1900)  ;  Carter  v.  Brewing  Co.,  in 
Iowa  457,  82  N.  W.  930  (1900)  ;  Miller  v.  Michigan  C.  R.  Co.,  123  Mich.  374, 
82  N.  W.  58  (1900)  ;  National  Mutual  Building  Assn.  v.  Burch,  124  Mich.  57 
(1900);  Westminster  College  v.  Piersol,  161  Mo.  270,  61  S.  W.  811  (1900); 
Field  V.  Barber  Asphalt  Pav.  Co.,  194  U.  S.  618,  48  L.  ed.  1142  (1904); 
Haas  V.  Malto-Grapo  Co.,  148  Mich.  3^8,  in  N.  W.  1059  (1907);  Turner  v. 
Mills  (Okla.),  97  Pac.  558  (1908);  b'Ncill  v.  Wolcott  Co.,  174  Fed.  527 
(1909);  Tilton  V.  Gates  Land  Co.,  140  Wis.  197,  121  N.  W.  331  (1909); 
Slmll  V.  Missouri  Pac.  R.  Co.,  221  Mo.  140,  119  S.  W.  1086  (1909)  ;  Hatfield  v. 
Cline,  143  K^^  565,  137  S.  W.  212  (1911)  ;  Wells  v.  Knight,  32  R.  I.  432,  80 
Atl.  16  (1911)  ;  Leschen  v.  Patterson,  130  La.  557,  58  So.  336  (1912)  ;  Hibernia 
Bank  V.  Whitney,  130  La.  817,  58  So.  583  (1912)  ;  Swager  V.  Smith,  194  Fed. 
762  ( 1 9 1 2 )  ;  Campbell  v.  Brandvzvine  Co..  ^2  Pa.  Super.  Tt  V^  < 1 91 3 )  ; 
Johnson  v.  Foust,  158  Iowa  195,  139  N.  W.  451  (1013)  ;  Carroll  To^omrs.  V. 
We.stminster,  123  Md.  198,  91  Atl.  412  (1914);  Slote  v.  Constantine  H.  Co., 
182  Mich.  260,  148  N.  Vv^.  666  (1914). 

"^Cross  assicrnments  of  error  are  frequently  permitted  by  statutes  or  rules ; 
see  Childers  v.  Loudin,  51  W.  Va.  559,  42  S.  E.  637  (1902)  ;  Bryant  v.  Ander- 
son, 5  Ga.  App.  517,  63  S.  E.  638  (1908)  ;  Jones  v.  Lampe,  85  Kans.  401,  116 
Pac.  619  (1911)  ;  Kuh  V.  O'Reilly,  261  111.  437,  104  N.  E.  5,  51  L.  R.  A.  (N.  S.) 
420  (1914);  Wheeler  v.  Thomas,  116  Va.  2=;9,  81  So.  51  (1914)  ;  Shartim  v. 
MtL^kogee,  43  Okla.  22,  141  Pac.  22  (1914)  ;  Hunter  v.  JV.  R.  Roylance  Co.,  45 
Utah  135,  143  Pac.  140  (1914).  And  in  some  jurisdictions  an  appeal  in  equity 
may  open  the  whole  case  for  consideration  de  novo.  Neubert  v.  Massman, 
37  Fla.  91,  19  So.  625  (1896)  ;  West  v.  West,  90  Iowa  41,  57  N.  W.  639  (1894). 
In  proceedings  for  an  accounting:  compare  Szi'ceney  v.  Neely,  53  Mich.  421, 
19  N.  W.  127  (1884)  ;  Moors  v.  Jf'ashburn,  i=;9  Mass.  172,  34  N.  E.  182  (1893)  ;' 
Gray  v.  Chase,  184  Mass.  444,  68  N.  E.  676  (1903),  with  Cox  v.  Schermerhorn, 
18  Hun  (N.  Y.)  16  (1879)  ;  Fo.'!ter  v.  Ambler,  24  Fla.  519.  5  So.  263  (1888). 
For  England  see  Riiles  of  the  Supreme  Court,  Order  LVIII,  rule  6;  Harris 
v.  Aaron,  36  L.  T.  (N.  S.)  43  (.1877)  ;  The  Beeswing,  L.  R.  10  Probate  Div. 
j8  (1884)  ;  Jones  v.  Stott,  L.  R.  (1910)   i  K.  B.  893. 


?S6  APPEAL   AXD   EKROR 

IN  RE  ]\IcXULTY'S  ESTATE 

Supreme  Court  of  Tennsylvania,  191 1 

230  Pa.  3S7 

Appeal  by  S.  E.  Kingslcy  froiu  a  decree  of  the  Orphans'  Court 
of  Allegheny  County  dismissing  exceptions  to  adjudication  in  re 
first  account  of  the  Colonial  Trust  Company  of  Pittsburg,  adminis- 
trator d.  b.  n.  c.  t.  a.  of  estate  of  P.  J.  McNulty,  deceased.  C.  M. 
Johnston  and  S.  E.  Kingsley  each  presented  claims  to  the  auditing 
judge  for  commissions  or  compensation  for  selling  certain  real  and 
personal  property.  The  claims  were  allowed  by  the  orphans*  court, 
but  Kingsley,  being  dissatisfied  with  the  amount  awarded  him,  ap- 
pealed, alleging  as  error  the  action  of  the  court  in  awarding  com- 
pensation to  Johnson  and  not  allowing  his  claim  in  full.  Neither 
the  estate  nor  any  other  creditor  appealed  from  the  decree  allowing 
Johnston's  claim.  It  appeared  that  if  Kingsley  was  entitled  to  addi- 
tional compensation  there  were  funds  in  tlie  hands  of  the  account- 
ant amply  sufficient  to  pay  the  claim. °* 

J\!estrezat,  J. :  Before  a  party  has  the  right  to  appeal,  he  must 
be  aggrieved  by  the  decree  that  it  entered.  If  he  is  not  aggrieved,  he 
is  not  affected  or  injured  and,  hence,  has  no  standing  to  complain. 
Under  the  circumstances  of  this  case,  it  is  apparent,  we  think> 
that  Kingsley  was  not  aggrieved  or  injured  by  the  decree  allowing 
compensation  to  Johnston.  His  right  to  compensation  does  not 
depend  upon  Johnston's  claim  against  the  estate  for  services  in  the 
sale  of  the  property.  If  he  rendered  services  to  the  estate  in  making 
the  sale  and  satisfied  the  court  that  he  was  entitled  to  compensa- 
tion therefor,  a  decree  should  have  been  entered  for  him,  regard- 
less of  any  claim  which  Johnston  may  have  against  the  estate  for 
similar  services.  It  by  no  means  follovv'S  that  if  Johnston  is  entitled 
to  compensation  for  assisting  in  the  sale  of  the  property,  that  Kings- 
ley  did  not  also  aid  in  making  the  sale  and  was  entitled  to  com- 
pensation for  services  rendered  the  estate.  The  claims  of  Johnston 
and  Kingsley  were  separate  and  distinct  and  whether  either  or  both 
should  be  allowed  depended  upon  the  ability  of  each  party  to  sup- 
port his  claim  by  proper  testimony.  Kingsley  is  not  injured  by  the 
allowance  of  Johnston's  claim.  As  already  observed,  there  are  funds 
undistriluited  in  the  hands  of  the  accountant  ample  to  meet  any 
claim  which  the  court  may  award  as  compensation  to  Kingsley.  He 
therefore,  has  no  standing  to  attack  Johnston's  claim  or  appeal  from 
the  decree  which  allows  it.  So  far  as  this  appeal  alleges  error  in 
awarding  Johnston's  claim  it  is  quashed."'' 


"The  statement  of  facts  is  abridged  frorrt  the  court's  opinion,  part  of 
which  is  omitted. 

"^Honc  V.  VanSchaich,  7  Paige  (N.  Y.)  221  (1838),  per  Walworth,  Ch. : 
"It  is  well  settled  that  no  person  is  authorized  to  appeal  from  a  decree  unless 
he  is  aggrieved  by  it;  and  that  a  party  v/ho  is  aggrieved  by  one  part  of  a 
decree  only,  can  not  by  appeal  call  in  question  another  part  of  the  decree  in 


IX    RE    m'xULTY's    estate  £87 

The  administrator  has  filed  a  paper  book  In  which  the  claims  of 
Johnston  and  Kingsley  are  attacked  and  in  which  we  are  asked  to 
reject  both  claims.  Unfortunately  for  the  administrator,  it  has  no 
standing  in  this  court  to  attack  either  claim.  Until  the  contrary 
appeared  in  its  paper  book,  it  seems  to  have  been  satisfied  with  the 
amount  awarded  each  of  the  two  claimants.  It  has  not  taken  an  ap- 
peal and,  therefore,  it  can  not  contest  the  claims  here.  The  only  ap- 
pellant and  party  who  can  be  heard  in  this  court  is  Kingsley,  who 
has  appealed  from  the  decree  of  the  court  below  in  refusing  to  allow 
him  sufficient  compensation  for  his  services  in  selling  the  Bijou  prop- 
erty. It  must  be  conceded  that  the  argument  of  the  administrator 
against  Johnston's  claim  is  not  without  force,  but  as  it  has  not  taken 
the  proper  legal  step  to  contest  the  claim  by  appealing  from  the  de- 
cree, we  are  not  in  a  position  to  either  hear  or  heed  the  argument. 
Whether,  therefore,  Johnston  is  entitled  to  any  commission  or  com- 
pensation for  services  rendered  in  selling  the  Bijou  property  we  are 
not  called  upon  to  determine  and,  therefore,  do  not  decide.  The  ad- 
ministrator occupies  the  same  position  in  regard  to  Kingsley's  claim. 
By  its  failure  to  appeal,  it  admits  that  it  is  satisfied  with  the  decree.°° 

Decree  affirmed. 


which  he  is  not  interested."  Accord:  Green  v.  Blachzvcll,  32  N.  J.  Eq.  768 
(18S0)  ;  People  v.  Reis,  76  Cal.  260,  18  Pac.  309  (1888)  ;  Stribling  v.  Splint 
Coal  Co.,  31  W.  Va.  82,  5  S.  E.  321  (1888)  ;  Hayes  v.  Klosky,  104  Ala.  418, 
16  So.  533  (1803);  Kcnnard  v.  Curran,  141  111.  App.  621  (1908).  So,  also, 
party  on  appeal  can  not  urge  alleged  errors  which  concern  some  other  per- 
son or  party  not  complaining  thereof.  WJiiting  v.  Cochran,  9  Mass.  532 
(1813)  ;  Shirley  V.  Liicnhurgh,  II  Mass.  379  (1814)  ;  Morgan  v.  Crahb,  3 
Port.  (Ala.)  470  (1836);  Arrington  v.  Cheatham,  2  Rob.  (Va.)  492  (1843); 
Cash's  Appeal,  i  Pa.  St  166  (1843)  ;  Walker  v.  Jones,  23  Ala.  448  (1853)  ; 
Craves  V.  hdzvards,  32  Miss.  305  (1856)  ;  Clerk  v.  Barnett,  24  Ark.  30  (1862)  ; 
Kirby  V.  Corning,  54  V/is.  599,  12  N.  W.  69  (1882)  ;  Lamb  v.  The  Council 
Bluffs  Ins.  Co.,  70  Iowa  238,  30  N.  W.  497  (1886)  ;  Coatcs  v.  Wilkes,  94  N. 
Car.  174  (1886)  ;  Randolph  v.  Chisholm,  29  111.  App.  172  (1888)  ;  Criglcr  V. 
Conner,  12  Ky.  L.  502,  14  S.  W.  640  (1890)  ;  Mor eland  V.  Houghton,  94  Mich. 
548,  54  N.  W.  285  (1S93)  ;  Kniger  v.  Braender,  3  Misc.  275,  2:^  N.  Y.  S.  324, 
51  N.  Y.  St.  9c6  (1803)  ;  Grand  G.  A.  O.  D.  v.  Garibaldi  Grove  No.  71  of  U.  A. 
O.  of  Druids,  105  Cal.  219,  38  Pac.  947  (1894)  \ ,  C  onshgJiocjicnT .  Co.  v.  Iron 
C.  Co  T(S7  P^  St.  589,  31  Atl.  934  (1895)  ;  Connor  Y.  ScHildt,  i5  PaTguper. 
Ct.  88  (1901)  ;  Clark  v.  Shazven,  190  111.  47,  6o"JN.  E.  lib  (1901)  ;  Lanum  v. 
Patterson,  151  111.  App.  36  (1909)  ;  Lanyon  v.  Lanquist,  157  111.  App.  316 
(1910)  ;  Gray  V.  Hayhurst,  1S7  111.  App.  4S8  (1910)  ;  Alexander  v.  Vaughan, 
106  Ark.  438,  153  S.  W.  594  (1913)  ;  Chicago  B.  &  Q.  R.  Co.  v.  Gilsdorff,  258 
111.  212,  loi  N.  E.  546  (1913). 

"^Parties  who  are  not  before  the  appellate  court  by  appeal  or  writ  o£ 
error  have  no  standing  to  allege  error.  Morse  v.  Smith,  83  111.  396  ( 1876)  ; 
Anderson  v.  Silliman,  92  Tex.  560,  50  S.  W.  576  (1899)  ;  Fitchie  v.  Brown, 
211  U.  S.  321,  53  L.  ed.  202  (1908)  ;  Lee  v.  Powell,  122  La.  639,  48  So.  134 
(1909)  ;  Lehman  Co.  v.  Lcmoine,  129  La.  382,  56  So.  324  (1911)  ;  Akers  v. 
Lord,  67  Wash.  179,  121  Pac.  51  (1912)  ;  Sears  v.  Hull,  147  Ky.  745,  145  S.  W. 
760  (1912)  ;  Brown  v.  Bay  City  Bank  &  Trust  Co.  (Tex.),  161  S.  W.  23 
(1913). 


3S8  APPEAL   A XI)    l-.UROR 

LINSON  z'.  SrAULDING 

Supreme  Court  of  Oklahoma,  1909. 

22  Okla.  254 

Dunn,  J. :  Tlils  case  presents  an  appeal  from  the  judgment  of 
the  District  Court  of  Kingfisher  County.  There  is  but  one  point  re- 
Hed  on  by  counsel  for  plaintiff  in  error  to  secure  a  reversal,  which 
is,  that  a  motion  for  a  new  trial  was  overruled  by  the  trial  court  pro 
forma.  No  contention  or  claim  is  made  that  in  fact  tlic  judgment 
was  wrong  on  the  merits. 

A  case  from  the  Supreme  Court  of  the  Territory  of  Oklahoma. 
Board  of  Comwissioncrs  of  JJ^asJiifa  County  v.  Hubble,  8  Okla.  169, 
declared  the  familiar  rule  that :  "Error  is  never  presumed  by  the 
Supreme  Court ;  it  must  always  be  shown  affirmatively  by  the  record, 
or  it  will  be  presumed  that  no  judicial  error  was  committed  by  tlie 
trial  court,  and  the  judgment  must  be  sustained." 

In  the  light  of  this,  it  will  be  seen  that  we  must  in  the  absence 
of  a  showing  of  error  in  the  case,  conclude  that  the  judgment  of  the 
lov.-er  court  was  correct  in  all  particulars,  that  both  parties  had  a  fair 
trial,  that  the  court  duly  and  fully  considered  their  different  claims, 
and  for  its  conclusion  rendered  a  judgment  in  strict  accordance  with 
the  law  giving  proper  relief  to  the  proper  party.  This  being  true, 
conceding  the  question  to  be  properly  raised,  the  ends  of  justice  in 
our  judgment  would  not  be  attained  by  remanding  such  a  case  for 
another  trial  for  the  reason  here  urged. 

The  cases  of  Lewis  v.  Hall,  11  Okla.  684,  and  Pinson  v.  Pren- 
tise,  8  Okla.  143,  appear  to  be  in  point  on  the  question.  In  the  case 
of  Lewis  V.  Hall,  11  Okla.  684,  Justice  Pancoast  in  the  consideration 
thereof,  said:  "If  the  judgment  was  correct,  no  good  purpose  could 
be  served  by  reversing  the  case,  but,  on  the  contrary,  great  injury 
would  be  done  to  the  defendant  in  error.  The  plaintiff  in  error 
having  failed  to  bring  the  case  here  in  such  form  as  to  enable  this 
court  to  examine  the  entire  record,  and  determine  whether  or  not 
there  was,  in  fact,  error  in  the  judgment  of  the  cotirt  below,  and  the 
presumption  being  in  favor  of  the  correctness  of  the  judgment  of 
the  trial  court,  this  case  must  be  affirmed."  In  the  case  of  Pinson  v. 
Prcntise,  8  Okla.  143,  Mr.  Justice  Hainer  said :  "The  only  question 
that  should  be  considered  by  this  court  is,  did  the  trial  court  render 
a  proper  judgment  in  the  case?  And,  if  the  court  rendered  a  proper 
judgment,  what  sound  reason  can  be  given  that  the  overruling  of  a 
motion  for  a  new  trial,  even  pro  forma,  is  prejudicial  to  the  sub- 
stantial rights  of  the  plaintiffs?  We  can  not  assent  to  establish  a 
rule  of  practice  in  this  territory  which  would  require  this  court  to 
reverse  a  case  upon  such  a  frivolous  ground,  regardless  of  the  mer- 
its of  the  case,  and  the  justness  of  the  decision  of  the  trial  court." 

The  judgment  of  the  trial  court  is  accordingly  affirmed.®'' 

All  the  justices  concur. 


*'  "The  burden  is  always  upon  the  party  who  avers  error  to  make  the 
same  appear  affirmatively — nothinj^  is  to  be  presumed  ap;ainst  a  judgment. 
The  error,  if  any  is  charged,  must  be  definitely  shown."    Per  Duncan,  J.,  in 


LINSON    V.    SPAULDING  889 


Kieslikoivski  V.  Bostroni,  179  111.  App.  y^  (1913).  Accord:  Carroll  v.  Peake, 
I  Pet.  (U.  S.)  18,  7  L.  ed.  34  (1828);  Gram's  Appeal,  4  Watts  (Pa.)  43 
(1835);  Bagnell  v.  Brodcrick,  13  Pet.  (U.  S.)  436,  lo  L.  ed.  235  (1839); 
Graham  v.  Dixon,  4  111.  115  (1841)  ;  Conoway  v.  Weaver,  x  Ind.  (Smith)  263 
(1848)  ;  Proctor  v.  Hart,  5  Fla.  465  (1854)  ;  Hendrie  v.  Rippey,  9  Iowa  351 
(1859)  ;  C"ra;n  v.  Cram,  2,3  Vt.  15  (i860)  ;  Mead  v.  i?tiwn,  32  N.  Y.  275  (1865)  ; 
Wise  V.  Ringer,  42  Ala.  488  (1868)  ;  Sorq  v.  First  German  Evangelical  St. 
Paul's  Cnnarrgation.  63  Pa.  St.  156  '( l^^gY^'Pcahody  V.  McAvoy,  23  Mich. 
526  (1871)  ;  Dritt  v.  Dodds^^S^nd.  63  (1871)  ;  Van  Patten  v.  Wilcox,  32  Wis. 
340  (1873)  ;  Loiveree  v.  Nezvark,  38  N.  J.  L.  151  (1875)  ;  Danvers  v.  Durkin, 
14  Ore.  37,  12  Pac.  60  (1886)  ;  Moidthrop  v.  School  Dist.,  59  Vt.  381,  9  Atl. 
608  (1887);  Campbell  v.  Walls,  yj  Cal.  250,  19  Pac.  427  (1888)  ;  Vinyard  v. 
Barnes,  124  111.  346,  16  N.  E.  254  (1888)  ;  Taylor  v.  Birely,  130  Ind.  484,  30 
N.  E.  696  (1S91)  ;  Donovan  v.  McCarty,  155  Mass.  543,  30  N.  E.  221  (1892)  ; 
Berry  v.  Berry,  84  Maine  541,  24  Atl.  957  (1892)  ;  In  re  Bates,  105  Cal.  646, 
38  Pac.  041  (1895)  ;  McCrimmen  v.  Parish,  116  N.  Car.  614,  21  S.  E.  407 
(1895)  ;  Coonan  v.  Loewenthal,  I2g  Cal.  197,  61  Pac.  940  (1900)  ;  Hobbs  v. 
Warman,  63  Nebr.  703,  89  N.  W.  255  (1902)  ;  Tandy  v.  St.  Louis  Transit  Co., 
178  Mo.  240,  yj  S.  W.  994  (1903)  ;  Staniels  v.  Whitcher,  ^2)  N.  H.  152,  59  Atl. 
934  (1905)  ;  Waggaiaan  v.  Earle,  25  App.  D.  C.  582  (1905)  ;  Clements  v.  State, 
51  Fla.  6,  40  So.  432  (1906)  ;  Merrill  v.  Milliken,  loi  Maine  50,  63  Atl.  299 
(1905);  Southern  R.  Co.  v.  Lester,  151  Fed.  573  (1907);  Bantz  v.  Adams, 
131  Wis.  152,  III  N.  W.  69  (1907)  ;  Ropes  v.  Stezvart,  54  Fla.  185,  45  So.  31 
(1907)  ;  Boat-wright  v.  Crosby,  S^  S.  Car.  190,  65  S.  E.  174  (1909)  ;  Dailey  v. 
Aspen  Democratic  Pub.  Co.,  46  Colo.  145,  103  Pac.  303  (1909)  ;  San  Domingo 
Gold  Co.  V.  Grand  Pacific  Co.,  10  Cal.  App.  415,  102  Pac.  548  (1009)  ;  Pierce 
V.  Pierce,  52  Wash.  679,  loi  Pac.  358  (1909)  ;  Manchester  v.  Duggan,  75  N.  H. 
33,  70  Atl.  1075  (1908)  ;  Whitcomb  v.  Whit  comb,  205  Mass.  310,  91  N.  E.  210 
(1910)  ;  Johnson  v.  Michaiix,  no  Va.  595,  66  S.  E.  823  (1910)  ;  McKinnon  v. 
Lewis,  60  Fla.  125,  53  So.  940  (1910)  ;  Scott  v.  Newell,  69  W.  Va.  118,  70  S. 
E.  1092  (1911);  1  aylor  v.  Jackson,  92  S.  Car.  113,  75  S.  E.  275  (1912)  ; 
Williamson  v.  Richardson,  205  Fed.  245  (1913)  ;  Interstate  Ry.  Co.  v.  Mis- 
souri River  &  C.  R.,  251  Mo.  707,  158  S.  W.  349  (1913)  ;  Chicago  &  E.  R.  Co. 
V.  Diniiis,  180  Ind.  596,  103  N.  E.  652  (1913)  ;  Iowa  S.  S.  Bank  v.  Henry 
22  Wyo.  189,  136  Pac.  863  (1913)  ;  Haggctt  v.  Jones,  in  Maine  348,  89  Atl.  140 
(1913)  ;  1  eter  v.  Franklin  Fire  Ins.  Co.,  74  W.  Va.  344,  82  S.  E.  40  (1914)  ; 
Ringling  v.  Smith  R.  D.  Co.,  48  Mont.  467,  '^8  Pac.  1098  (1914)  ;  Costa  v. 
Raza,  2T,  Cal.  App.  754,  139  Pac.  899  ( 1914)  ;  Hochler  v.  Short,  40  Okla.  681, 
140  Pac.  146  (1914). 

Error  must  be  prejudicial.  Harmless  error  does  not  justify  a  reversal. 
Gammon  v.  Jones,  4  T.  R.  509  (1792)  ;  O'Donnell  v.  Connecticut  Fire  Ins.  Co., 
73  Mich.  I,  41  N.  W.  95  (1888)  ;  Marshall  v.  Hancock,  80  Cal.  82,  22  Pac.  61 
(1889)  ;  Whiteside  V.  Brawley,  152  Mass.  133,  24  N.  E.  1088  (1890)  ;  Hannum 
V.  Hill,  52  W.  Va.  166,  43  S.  E.  223  (1902)  ;  Shidfr;  v.  .^eibel^  cno  Pa.  27.  57  Atl. 
II20  (1904) ;  Vandcrslice  V.  Donner.  26  Pa.  Super.  Ct.  31Q  (1904)  ;  Ostegaard 
V.  Greek  Catholic  Congregation,  75  N.  J.  L.  736,  68  Atl.  86  (1907)  ;  Bowman  v. 
Saigling  (Tex.  Civ.  App.),  in  S.  W.  1082  (1908)  ;  Farmers'  &  Merchants' 
Bank  of  Springfield  V.  Zook,^  133  Mo.  App.  603,  113  S.  W.  678  (1908)  ; 
St.  Louis  L.  M.  R.  Co.  v.  Williams,  92  Ark.  534,  123  S.  W.  403  (1909)  ;  Rock 
Creek  S.  Co.  v.  Boyd,  in  Md.  189,  73  Atl.  662  (1909);  Peoples  R.  Co.  v. 
Baldwin,  7  Del.  383,  72  Atl.  979  (1909)  ;  Southern  Home  Ins.  Co.  v.  Putnal, 
57  Fla.  199,  49  So.  922  (1909)  ;  Rullman  v.  Ridlman,  81  Kans.  521,  106  Pac.  52 
(1910);  Southern  Pac.  R.  Co.  V.  Da  Costa,  190  Fed.  689  (1911)  ;  Gcer  v. 
Chapin,  163  111.  App.  654  (1911)  ;  St.  Louis  L.  M.  R.  Co.  v.  Marlin,  2,3  Okla. 
510,  128  Pac.  108  (1912)  ;  Greer  v.  Downing,  176  111.  App.  355  (1912)  ; 
Davidson  Fruit  Co.  v.  Produce  Distributors  Co.,  74  V/ash.  551,  134  Pac.  510 
(1913)  ;  Perry  v.  VanMatre,  176  Mo.  App.  100,  161  S.  W.  643  (1913)  ;  Rich- 
ardson v.  Bohney,  26  Idaho  35,  140  Pac.  1106  (1914)  ;  Carter  v.  Seaboard  Air 
Line  R.  Co.,  165  N.  Car.  244,  81  S.  E.  321  (1914).  In  Neville  v.  Frary,  88 
Conn.  50,  89  Atl.  882  (1914),  the  error  complained  of  was  the  inclusion  of 
an  item  of  $6  in  a  judgment  for  nearly  $1,000.  The  court  refused  to  interfere 
on  tl'.e  ground  that  the  item  was  too  insignificant  to  claim  their  attention. 
Accord:  Perin  v.  Cathcart,  115  Iowa  553,  89  N.  W.  12  (1902)  (22  cents); 
Missouri  K.  &  T.  R.  Co.  v.  Kirkpatrick  (Tex.  Civ.  App.),  165  S.  W.  500  (1914). 


890  ArrF.AL   AX»    KKROR 

BINDBEUTAL  v.    ST.    RY.   CO. 

Court  of  Appeals  of  INIissouri,  Kansas  City,   1891 

43  Mo.  App.  463*^ 

Smith,  P.  J. :  riaintiff  brought  this  action  for  alleged  personal 
injuries,  claiming  that,  while  driving  on  the  defendant's  track  a 
cable  car  collided  with  his  wagon  throwing  him  therefrom  and  in- 
juring him.  The  petition  was  in  two  counts,  the  first  claiming  that 
the  act  of  defendant  was  wilful,  while  the  second  count  was  founded 
upon  negligence.  All  the  evidence  has  not  been  preserved  in  full, 
Intt  the  bill  of  exceptions  shows  what  its  tendency  was.  The  verdict 
of  the  jury  was  silent  as  to  the  first  count,  but  found  for  the  plain- 
tiff on  the  second  count  and  assessed  his  damages  at  $1,000.  The 
defendant  has  appealed  from  the  judgment. 

The  questions  presented  by  the  record  before  us  arise  out  of  the 
action  of  the  trial  court  in  the  giving  and  refusing  of  instructions.  A 
preliminary  matter  however  has  been  presented,  which  we  will  dis- 
pose of  before  proceeding  to  examine  the  instructions. 

It  has  been  argued  by  the  counsel  for  the  defendant  that,  when 
the  record  of  a  cause  disclosed  an  erroneous  ruling  of  the  trial  court 
that  then  the  presumption  arises  that  such  error  was  prejudicial  to 
the  rights  of  the  party  against  whom  committed  and  that  such  pre- 
sumption continues  unless  the  record  shov/s  beyond  a  doubt  that  it 
was  not  prejudicial;  or,  to  state  the  contention  in  a  different  way, 
that  when  the  revisory  court  discovers  in  the  record  that  an  error 
has  been  committed  that  this  per  se  enjoins  upon  it  the  duty  to  re- 
verse the  judgment,  unless  it  further  appears  that  such  error  did  not 
operate  prejudicially.  The  rule,  thus  stated  in  defendant's  conten- 
tion, seems  quite  reasonable  and  unless  in  some  way  it  is  affected  by 
the  statute  we  should  be  inclined  to  approve  it.  The  statute  just  re- 
ferred .to.  Revised  Statutes,  section  2303,  provides  that  the  appellate 
courts  of  this  state  shall  not  reverse  the  judgment  of  any  court  un- 
less it  shall  believe  that  error  was  committed  by  such  court  against 
the  appellant,  or  plaintiff  in  error,  materially  affecting  the  result. 
Under  this  mandatory  prohibition  the  appellate  courts  can  not  re- 
verse a  judgment  in  any  case  unless  it  is  believed,  not  only  that  error 
was  committed,  but  that  it  matei-ially  affected  the  merits  of  the  ac- 
tion ;  unless  these  two  essential  conditions  are  believed  to  coexist 
there  can  be  no  reversal.  The  existence  of  nonprejudicial  error  in 
a  case  affords  no  ground  for  disturbing  the  judgment.  There  must 
be  inseparably  connected  with  it  the  element  of  prejudice,  else  the 
case  fails  within  the  terms  of  the  statutory  prohibition.  Errors  dis- 
covered go  for  naught  unless  coupled  with  prejudice.  Errors  are, 
therefore,  of  two  kinds,  reversible  and  irreversible,  or  prejudicial 


"The  arguments  of  counsel  and  part  of  the  opinion  of  the  court  are 
omitted.  The  court,  finding  that  some  of  the  instructions  to  the  jury  were 
erroneous  and  that  the  plaintiff  (the  appellee)  had  not  shown  that  in  the 
record  which  repelled  the  presumption  of  prejudice,  reversed  the  judgment. 


BINDEEUTAL   Z'.    ST.    RY.    CO.  89I 

and  nonprejudicial.  Reversible  v/hen  accompanied  by  Its  twin  sis- 
ter, prejudice,  and  irreversible  when  foiind  existing  alone.  Error 
and  prejudice  go  hand  in  hand,  until  the  latter,  which  is  tlie  creature 
of  presumption,  is  met  and  neutralized  by  something  in  the  record. 
It  follows,  therefore,  that  the  interference  of  the  appellate  court 
with  the  judgment  of  the  lower  court  can  be  successfully  invoked  by 
showing  an  error  in  the  record ;  for  when  the  error  is  shown  the  law 
supplies  and  attaches  the  consequence  of  prejudice.  The  judgment 
in  such  case  would  be  necessarily  reversed,  unless  the  defendant 
shows  from  the  record  that  which  clearly  rebuts  the  presum.ption  of 
prejudice. 

We  can  not  discover  that  the  statute  is  repugnant  to,  or  en- 
croaches on,  this  rule  of  presumption;  on  the  contrary,  we  are  in- 
clined to  think  that  it  supplements  the  rule  with  a  practical  defini- 
tion of  what  shall  constitute  prejudicial  error.  As  we  understand 
it,  when  error  intervenes,  the  prejudice  presumed  is  of  the  kind  men- 
tioned in  the  statute,  that  is,  it  must  affect  materially  the  merits.  In 
all  the  cases  cited  by  the  plaintiff,  it  will  be  observed  that  the  judg- 
ment was  not  reversed  on  account  of  the  error  complained  of,  but 
because  of  something  contained  in  the  record  by  which  it  was  made 
to  appear  that  the  complainant  was  not  substantially  injured  or 
harmed.  They  decide  nothing  at  variance  with  what  is  here  held. 
The  adjudged  cases  abound  in  the  use  of  such  terms  as  "reversible 
error,"  "harmful  error"  and  "prejudicial  error,"  and  the  like,  but  we 
think  that  the  meaning  of  them  all  is  that,  when  error  intervenes,  it 
is  presumed  to  be  reversible,  harmful  and  prejudicial,  and  authorizes 
a  reversal,  unless  the  party  claiming  the  benefit  of  the  judgment  can 
show  that  in  the  record  which  rebuts  the  presumption. 

The  St.  Louis  court  of  appeals  has  thrice  decided  that  error  is 
presumed  to  be  prejudicial.  To  justify  an  appellate  court  to  affirm 
a  judgment,  when  error  has  intervened  in  the  trial,  the  burden  is 
upon  the  party  claiming  the  benefit  of  the  judgment  to  satisfy  the 
appellate  court  that  the  error  is  not  prejudicial.  Suttie  v.  Aloe,  39 
Mo.  App.  38 ;  Clark  v.  Fairley,  30  Mo.  App.  335 ;  Walton  v.  Rail- 
road, 40  ]\Io.  App.  5z^.  And  we  can  see  no  valid  reason  why  the 
rule  just  stated  Is  not  correct,  nor  why  it  should  not  be  followed.®^ 


•'In  Deery  v.  Cray,  72  U.  S.  795,  18  L.  ed.  653  (1866),  it  is  said  by 
Miller,  J.:  "We  concede  that  it  is  a  sound  principle  that  no  judgment  should 
be  reversed  in  a  court  of  error  when  the  error  complained  of  works  no  in- 
jury to  the  party  against  whom  the  ruling  was  made.  But  whenever  the  appli- 
cation of  this  rule  is  sought,  it  must  appear  so  clear  as  to  be  beyond  doubt 
that  the  error  did  not  and  could  not  have  prejudiced  the  party's  rights."  In 
accord,  many  cases  hold  that  prejudice  will  be  presumed  when  error  is  shown 
or  admitted.  Smith  v.  Shoemaker,  84  U.  S.  630,  21  L.  ed.  717  (1873)  ;  Way- 
land  V.  Ware,  109  Mass.  248  (1872)  ;  Moores  v.  Citizens'  Nat.  Bank,  104  U.  S. 
625,  26  L.  ed.  870  (1881)  ;  Jones  v.  Bangs,  40  Ohio  St.  139,  48  Am.  Rep.  664 
(1883)  ;  Gilmer  et  al.  v.  Highley,  no  U.  S.  47,  28  L.  ed.  62  (1884)  ;  Vickshurg 
&  M.  R.  Co.  V.  O'Brien,  119  U.  S.  99,  30  L.  ed.  299  (1886)  ;  Cleary  v.  City  R. 
Co.,  7(i  Cal.  240,  18  Pac.  269  (1888)  ;  Honk  v.  Allen,  126  Ind.  568,  25  N.  E.  897, 
II  L.  R.  A.  706  (1890)  ;  DiiBois  v.  Perkins,  21  Ore.  189,  27  Pac.  1044  (1891)  ; 
Simmons  v.  Spratt,  26  Fla.  449,  8  So.  123,  9  L.  R.  A.  343  (1890)  ;  Mcxia  v. 


Sqj  appkal  and  error 


OIkrr,  14S  U.  S.  664.  37  T-  ^^-  f>0-  (i^oj)  ;  Sfllomon  v.  City  Compress;  Co., 
bo  Miss.  310,  10  So.  44(1.  12  So.  330  (i8qi)  ;  Pccic  v.  Ilcnrich.  167  U.  S.  624, 
42  L.  ed.  302  (1807)  ;  Bell  v.  Samuels,  60  N.  J.  L.  370.  37  Atl.  613  (1807)  ; 
Latigstofi  v.  Southern  R.  Co..  147  Mo.  4.=^7,  -^8  S.  W.  835  (1808);  Parrin  v. 
.UoH/awa  Ci-H/.  i?.  Co.,  22  Mont.  290,  56  Tac.  3x5  (1890);  Gulf  R.  Co.  v. 
Johtison,  91  Tex.  560,  44  S.  W.  1067  (1898)  ;  Smuggler  Union  Mining  Co.  v. 
Proderiek.  2^  Colo.  16,  =^3  Pac.  169,  71  Am.  St.  106  (1898)  ;  Longhran  v.  Des 
Moines.  io7"lowa  639,  78  N.  W.  675  (1809)  ;  Collett  v.  Northern  Pacific  R. 
Co..  23  Wash.  600.  63  Pac.  225  (1000)  ;  Callazi'ay  &  Truitt  v.  Gay,  143  Ala. 
524,  39  So.  277  (1004)  ;  Inman  Bros.  v.  Dudley  &  Daniels  Lumber  Co.,  146 
Fed.  449  (1906')  ;  Armour  &  Co.  v.  Russell,  144  Fed.  614  (1906)  ;  National 
Biscuit  Co.  V.  Nolan,  138  Fed.  6  (1905)  ;  Wheeling  Mold  Co.  v.  Steel  Co.,  62 
W  Va  289  57  S.  F.  826  (1907)  ;  United  States  v.  Ute  Coal  Co.,  158  Fed.  20 
(1007^  ;  Mever  v.  Chicago  M.  R.  Co.,  22  S.  Dak.  377,  II7  N.  W.  1037  (1008)  ; 
Mutual  Reserve  Life  Ins.  Co.  v.  Heidel,  161  Fed.  535  (1908);  Archhold  v. 
.loline,  114  N.  Y.  S.  169  (1909);  Norfolk  Tr.  Co.  v.  Miller,  174  Fed.  607 
(1909);  Crazvford  v.  United  States,  212  U.  S.  183,  53  L-  ed.  465  (1909); 
Olopp  V.  Rapid  Tr.  Co..  69  Misc.  595.  126  N.  Y.  S.  184  (loio)  ;  Morgan  v. 
Bankers  Trust  Co.,  63  Wash.  476,  115  Pac.  1047  (i9ii)  ;  McBride  V.  Huckins, 
76  N.  H.  206,  81  Atl.  528  (1911)  ;  Butchers  Slaughtering  Assn.  v.  Bo.<;ton,  214 
Mass.  254,  loi  N  E.  426  (1913)  ;  Comvay  v.  Coursey,  no  Ark.  557,  161  S.  W. 
1030  (1913)  ;  Linler  v.  Wiles,  70  Ore.  350,  141  Pac.  871  (1914)-  The  principle 
is  sometimes  stated  in  this  manner:  "Where  it  is  shown  on  appeal  that  the 
trial  conrt  erred  in  some  rnlinp:  or  decision,  the  error  will  be  presumed  to  be 
harmful,  and  the  burden  is  not  upon  the  party  aggrieved  to  show  that  it  is 
harmful,  iDut  on  the  opposite  partv  to  show  bv  the  record  that  the  error  was 
harmless."  Vandalia  Coal  Co.  v.  Yemm,  175  Ind.  524,  92  N.  E.  49,  94  N.  E. 
881  (1910)  ;  Greene  v.  Jl'hite,  37  N.  Y.  405  (1867)  ;  Lack  v.  Weber,  61  Misc. 
ex.  Y.)  91  (1908)  ;  Crane  Co.  v.  Hogan,  228  111.  338,  81  N.  E.  1032  (1907)  ; 
Mcleny  v.  Library  Bureau,  148  111.  App.  437  (1909)  I  Casey  v.  Prudential  Ins. 
Co.  of  America,  162  111.  App.  581  (1911)  ;  Davis  v.  Cox,  178  Ind.  486,  99  N.  E. 
803  (1912)  ;  Neely  v.  Louisville  Tr.  Co.,  53  Ind.  App.  659,  102  N.  E.  455 
(1913). 

Where  the  case  is  tried  by  the  court  without  a  jury  it  will  not  be  pre- 
sumed, on  appeal,  that  improper  evidence  objected  to  at  the  time  misled  the 
court.  It  will  be  assumed  that  the  immaterial  or  improper  evidence  was  dis- 
regarded in  arriving  at  a  decision.  Merchants'  Despatch  Co.  V.  Joesting. 
89  111.  152  (1878)  ;  Mailers  v.  Crane  Co.,  92  111.  App.  514  ( ^Qoo)  ;_Ll£ZiLeJlyn 
v_£cni§el.  21  ^  Pa.  2^,.  6a  Atl.  388  (1906)  ;  Boening  V.  A^.  American  Union, 
i55~TrrApp.  528  (1910)  ;  Sharp  v.  Trustee  of  Schools,  261  111.  44.  103  N.  E. 
562  (1913)  ;  Diggs  v.  Heiuon,  181  Mo.  App.  34,  163  S.  W.  565  (1914)  ;  Fairbank 
V.  Fairbank,  92  Kans.  45,  139  Pac.  ion  (1914)-  See  Colonial  Securities 
Trust  Co.  V.  Ma.'!sey,  L.  R.  (1896)  I  Q.  B.  38.  The  principle  has  been  applied 
to  auditors,  Breneman's  Estate.  65  Pa.  St.  298  (1870),  and  to  a  master  m 
equity,  Long  V.  Athol,  196  Alass.  497,  82  N.  E.  665,  17  L.  R.  A.  (N.  S.)  96 
C1907).  But  contra  where  it  appears  that  the  decision  was  influenced  by  the 
objectionable  evidence.  Weihert  v.  Hanan,  202  N.  Y.  328,  95  N.  E.  688  (1911)  ; 
Harding  v.  Conlon,  159  App.  Div.  441.  I44  N-  Y.  S.  663  (1913)  ;  Swan  v. 
Price  (Tex.  Civ.  App.),  162  S.  W.  994  (iQM)  ;  Elston  v.  McGlanflin,  79  Wash. 
355,  140  Pac.  396  (1914). 


PRESS    PUB.    CO.    V.    MONTEITH  893 

PRESS  PUB.  Co.  V.  I^IONTEITH 

United  States  Circuit  Court  of  Appeals,  Second  Circuit,  1910 

180  Fed.  356 

In  error  to  the  Circuit  Court  of  the  United  States  for  the  South- 
ern District  of  New  York. 

Action  by  Laura  W.  Monteith  against  the  Press  Publishing  Com- 
pany for  hbel.  Judgment  for  plaintiff  for  $15,000,  and  defendant 
brings  error.^ 

CoxE,  J, :  The  defendant  realizing,  apparently,  that  even  upon 
its  own  presentation  no  very  serious  error  has  been  committed,  in- 
vokes the  archaic  rule  that  if  error  be  discovered,  no  matter  how 
trivial,  prejudice  must  be  presumed.  The  more  rational  and  enlight- 
ened view"  is  that  in  order  to  justify  a  reversal  the  court  must  be 
able  to  conclude  that  the  error  is  so  substantial  as  to  affect  injuri- 
ously the  appellant's  rights. 

Prejudice  must  be  perceived,  not  presumed  or  imagined.  The 
writer,  speaking  only  for  himself,  is  in  hearty  accord  with  the  mod- 
ern tendency. 

The  object  of  all  litigation  should  be  to  arrive  at  a  just  result 
by  the  most  direct,  speedy  and  inexpensive  proceedings.  If  such  a 
result  can  be  reached  by  absolutely  inerrant  methods  so  much  the 
better,  but  while  the  administration  of  justice  is  in  the  hands  of 
merely  finite  beings,  such  perfection  can  hardly  be  expected.  I  ven- 
ture to  think  that  no  long  continued,  hotly  contested  trial  can  be  con- 
ducted to  a  conclusion  without  mistakes  being  committed.  Few 
minds  are  so  constituted  that  they  can  grasp  at  the  outset  all  the 
ramifications  of  a  complicated  controversy  and,  before  the  judge  can 
get  the  perspective  of  the  trial,  some  mistakes  may  occur,  but  these 
should  be  disregarded  if  it  can  be  seen  that  the  case  was  correctly 
decided  and  that,  even  if  they  had  not  been  made,  the  same  result 
would  have  been  reached.  Justice  can  be  attained  without  infaUi- 
bility. 

One  of  the  English  rules  provides: 

"A  new  trial  shall  not  be  granted  on  the  ground  of  the  misdi- 
rection of  the  jury  or  of  the  improper  admission  or  rejection  of  evi- 
dence, unless  in  the  opinion  of  the  court  to  which  the  application  is 
made,  some  substantial  wrong  or  miscarriage  of  justice  has  been 
thereby  occasioned  on  the  trial."^ 


*A  part  only  of  the  opinion  is  printed. 

^Rules  of  the  Supreme  Court,  Order  39,  rule  6.  In  Floyd  v.  Gibson,  100 
L.  T.  (N.  S.)  761  (1909),  the  court  misdirected  the  jury  by  leaving  it  open  to 
them  to  treat  the  plaintiff's  injury  as  permanent  when  there  was  no  evidence 
of  any  permanent  injury,  but  the  plaintiff  had  admittedly  been  seriously 
injured  and  the  damages  were  moderate.  Held,  The  damages  being  reason- 
able in  respect  to  the  injuries  actually  suffered,  no  "substantial  wrong  or  mis- 
carriage" was  occasioned  by  the  misdirection  within  the  rule,  and  a  new 
trial  should  be  refused.  Compare  Bray  v.  Ford,  L.  R.  (1896)  A.  C.  44,  65 
Q.  B.  213,  7z  L-  T.  6c9,  and  see  Tait  v.  Beggs,  2  R.  I.  525  (1905)  ;  O'Reilly  v. 
McCall  (iQio),  2  1.  R.  42. 


894  APPEAL   AND   ERROR 

Were  such  a  rule  in  force  here,  even  assuming  tliat  defendant's 
contentions  are  correct,  tlie  court  would  be  unable  to  say  that  sub- 
stantial wrong  has  been  done  the  defendant.  In  several  instances 
the  alleged  error  was  subsequently  corrected  and  the  excluded  evi- 
dence supplied. 

The  granting  of  a  new  trial  is  often  a  denial  of  justice,  wit- 
nesses die  or  remove  beyond  the  jurisdiction  of  the  court  and  the 
resources  of  the  litigants  become  exhausted. 

Believing  as  we  do  that  the  libel  here  was  without  justification 
or  excuse  and  that  the  verdict  was  not  excessive,  we  should  hesitate 
long  before  requiring  the  plaintiff  to  begin  anew  the  weary  pilgrim- 
age through  the  courts. 

The  judgment  is  affirmed  with  costs.^ 


SYPHERD  V.  MYERS 

Court  of  Errors  and  Appeals  of  New  Jersey,  191  i 

80  A^.  /.  L.  321 

By  this  writ  of  error  Herman  M.  Sypherd,  trustee  in  bankruptcy 
of  Channell  Brothers,  seeks  to  reverse  a  judgment  of  the  Supreme 
Court  entered  upon  a  verdict  directed  in  his  favor  for  six  cents 
damages  against  Charles  R.  Myers,  whom  plaintiff  in  error  had 
sued  for  the  breach  of  an  option  given  to  his  bankrupts. 

]\Iyers  had  leased  the  Piedmont  Hotel  to  Channell  Brothers  for 
one  year.  The  lease  gave  to  the  lessees  an  option  to  purchase  the 
property  for  $57,000,  if  the  lessor  should  obtain  title  during  the 
term.  The  term  expired  without  the  fulfillment  of  this  condition  and 
was  renewed  for  one  year  from  June  i,  1900,  at  a  higher  rental,  with 
a  purchase  price  of  $62,000  under  a  similar  option.  During  this  term 

'In  accord  with  the  principal  case  it  is  frequently  said  that  unless  it  can 
be  seen  that  prejudice  has  resulted  from  error  of  the  trial  court,  prejudice 
will  not  be  presumed.  Allegheny  v.  Nelson.  2^  Pa.  St.  332  (1855)  ;  Hooker  v. 
Johnson,  10  Fla.  198  (fB5o7;  Ftilmer  v.  Fulmer,  22  Iowa  230  (1867)  ;  Warner 
V.  Jones,  140  Mass.  216,  5  N.  E.  645  (1885);  Worcester  Coal  Co.  v.  Utley, 
167  !\Iass.  558,  46  N.  E.  114  (1897)  ;  Toole  v.  Bearce,  91  Maine  200,  39  Atl. 
558  (1898)  ;  Wood  v.  Finson,  91  Maine  280,  39  Atl.  1007  (1898),  where  it  is 
said:  "It  must  be  shown  affirmatively  that  the  excepting  party  has  been 
ajTcrrieved";  Koplan  v.  Gas  Light  Co.,  177  Mass.  15,  58  N.  E.  183  (1900); 
Wills  V.  Hardcastle,  IQ  Pa.  Super.  Cl  525  (1902);  Covimonwealth y^Phila. 
H.  &P.  J^  Co.,  23^^.  Super.  Ct.  235  (1903)  ;  Cox  v.  iyilson.~2'^  Pa.  Super. 
C17^63S^ (1904)  ;  Neal  v.  Kcttlall,  100  Ivfaine  574,' 62  Atl.  706  (1905)  ;  National 
Valley  Bank  v.  IIou.<!ton,  66  W.  Va.  336,  66  S.  E.  465  (1909)  ;  Berger  v.  Abel 
&  Bach,  141  Wis.  321,  124  N.  W.  410  (1910)  ;  Roach  v.  Skelton,  86  Kans.  63, 
119  Pac.  315  (1911)  ;  Smith  v.  lola  Portland  Cement  Co.,  86  Kans.  287,  120 
Pac.  349  (1912);  Totten  v.  Barlow,  165  Cal.  378,  132  Pac.  749  (1913); 
Leonard  v.  Hartzlcr,  90  Kans.  386,  133  Pac.  570  (1913)  j  Hoogendorn  v. 
Daniel,  202  Fed.  431  (1913)  ;  Wclls-Fargo  &  Co.  v.  Benjamin  (Tex.  Civ. 
App.),  165  S.  W.  120  (1914).  See  also  Garland  v.  State  of  Washington, 
232  U.  S.  642,  58  L.  ed.  772  (1914),  overruling  Grain  v.  United  States,  162 
U.  S.  625,  40  L.  ed.  1097  (1896). 


SYPHERD   V.    MYERS  895 

the  lessees  defaulted  wholly  in  the  payment  of  their  rent  and  about 
August  25,  1900,  notified  Myers  that  they  could  not  pay  him  any 
money  at  all  and  would  have  to  get  out.  They  went  out  of  possession 
and  M3-ers  went  in.  On  September  8th  Myers  obtained  title  and  on 
September  12th  tendered  it  to  Channell  Brothers,  who,  without  dis- 
closing the  bankruptcy  proceeding,  informed  Myers  that  they  w^ere 
not  in  a  condition  to  comply  with  tlieir  agreement ;  whereupon  Myers, 
on  September  15th,  sold  the  property  to  one  Bechtel.  On  October 
15,  1900,  the  plaintiff  in  error  was  appointed  the  trustee  in  bank- 
ruptcy of  Channell  Brothers,  and  on  January  3,  1902,  he  began  this 
suit  for  damages  for  the  loss  of  the  bargain  resulting  from  Myers' 
breach  of  the  option  contained  in  the  lease.  To  this  action  Myers 
pleaded  specially  that  before  he  acquired  the  title  in  question  the 
lessees  had  abandoned  their  option  to  purchase,  and  had  surrendered 
their  term  to  tlie  defendant,  who  accepted  such  surrender. 

On  the  trial  the  defendant  sustained  his  pleas  and  at  the  close 
of  the  testimony  the  court,  of  its  own  motion,  directed  a  verdict  for 
six  cents  damages,  to  which  the  defendant  excepted  upon  the  ground 
that  he  was  entitled  to  a  verdict.  The  plaintiff  also  excepted  and 
took  this  writ  of  error.* 

Garrison,  J. :  If  the  trial  judge  was  right  In  directing  a  verdict 
for  the  plaintiff  in  error  he  was  VvTong  in  limiting  the  recovery  to 
nominal  damages,  for,  if  tlie  defendant  was  liable  to  the  plaintiff  at 
all,  there  was  testimony  that  should  have  gone  to  the  jury  in  support 
of  a  more  substantial  measure  of  damage. 

This  error  does  not,  however,  entitle  the  plaintiff  to  have  the 
judgment  for  nominal  damages  reversed  if  it  conclusively  appears 
that  he  v/as  not  entitled  to  a  judgment  for  any  sum.^ 

We  think  that  this  does  conclusively  appear  in  tAvo  different  as- 
pects of  the  case. 

First,  because  Channell  Brothers,  prior  to  their  being  adjudged 
bankrupts,  abandoned  their  option  from  inability  to  comply  with  its 
terms  and  so  notified  Myers,  who,  in  good  faith,  acted  upon  it.  The 
facts  in  respect  to  this  are  uncontroverted. 


'Part  o£  the  opinion  of  the  court  is  omitted. 

''Judgment  will  not  be  reversed  in  favor  of  an  appellant  who  is  not 
entitled  to  succeed  in  any  event.  Co-dcen  v.  Eartherly  Hardn:are  Co.,  95  Ala. 
324,  II  So.  195  (1891)  ;  Ice  V.  Ball,  102  Ind.  42,  i  N.  E.  66  (1884)  ;  McCreery 
v.  Wells,  94  Cal.  485,  29  Pac.  877  (1892);  Honi  v.  Schwinn  &  Co.,  150  111. 
App.  559  (1909)  ;  First  Nat.  Bank  of  Antigo  v.  Larsen,  146  Wis.  653,  132 
N.  W.  610  (1911)  :  Ritter  v.  Pittsburg  R.  Co.,  230  Pa.  249.  ffl  Atl.  549  (1911)  ; 
Webber  v.  Old  Colony  S.  R.  Co.,  210  Mass.  432,  97  N.  E.  74  (1912)  ;  Peterson 
v.  Purinfon,  90  Nebr.  837,  134  N.  W.  942  (1912)  ;  Atzvood  v.  Atzvood,  86  Conn. 
579,  86  Atl.  29  (1913)  ;  Wilson  v.  Draper,  9  Ala.  App.  585,  63  So.  779  (1913). 
So,  the  fact  that  plamtiff  recovers  on  a  mistaken  view  of  the  character  of  the 
agreement  upon  which  the  suit  is  based  is  not  ground  for  reversal,  where  he  is 
entitled  to  recover  for  other  reasons.  American  Structural  Steel  Co.  v.  Rush, 
107  N.  Y.  S.  3  (1907). 

In  Butterhof  v.  Bnttcrhof,  84  N.  J.  L.  285,  86  Atl.  394  (1912),  it  is  said, 
per  Garrison,  J. :  "To  review  seriatim  the  inconsequential  errors  that  the  trial 
judge  may  have  made  in  what  he  said  to  the  jury,  while  at  the  same  time 
ignoring  the  fundamental  error  he  made  in  not  directing  a  verdict  for  the 
defendant,  would  be  at  once  sheer  waste  of  time  and  a  flagrant  unobservance 
of  the  legislative  precept." 


S96  APPEAL   AND   F.RROR 

The  second  point  is  that  the  title  to  the  property  was  not  ob- 
tained by  Myers  dining  the  eiMiiinnance  of  the  lease,  wliioh  was  tlie 
condition  on  which  the  right  of  purchase  by  Channel!  Brothers  de- 
I>ended.  The  giving  up  of  possession  by  Channell  Brothers  and  its 
acceptance  by  Myers,  which  was  specially  pleaded  by  the  latter,  was 
conclusively  established  at  the  trial  by  testimony  of  acts  that  by  op- 
eration of  law  constituted  a  surrender. 

The  circumstance  that  these  views  should  have  led  at  the  trial 
to  a  direction  of  a  verdict  for  the  defendant  rather  than  for  the 
plaintilt  does  not  militate  against  their  consideration  now  upon  the 
question,  not  of  what  judgment  the  defendant  should  have  had,  but 
of  what  injury  is  done  to  the  plaintiff  by  the  judgment  that  he  is 
seeking  to  reverse.  The  defendant  can  not  have  the  judgment  that 
he  should  have  had ;  that  is  his  loss.  He  was  foreclosed  from  mov- 
ing for  it  by  the  action  of  the  trial  court ;  that  may  have  been  his  mis- 
fortune, but  he  has  taken  no  writ  of  error.  The  plaintiff,  who  has 
taken  a  writ  of  error,  shows  thereby  a  judgment  which,  as  far  as  it 
is  in  his  favor,  was  erroneous,  and,  as  far  as  he  complains  of  it,  does 
him  no  injury.  His  writ  of  error  avers  that  error  has  intervened  to 
his  damage ;  this  he  has  not  shown  and  hence  has  not  shown  himself 
entitled  to  have  the  erroneous  judgment  reversed. 

Plaintiff  in  error  can  not  complain  because  he  is  required  to 
make  out  in  this  court  the  case  upon  which  he  has  invoked  its  rem- 
edial jurisdiction  and  he  is  not,  in  any  legal  sense,  aggrieved  if  tliis 
court  decides  adversely  to  him  the  questions  that  his  case  presents, 
providing  they  be  purely  legal  questions  fairly  raised  at  the  trial 
and  upon  which  he  has  had  full  opportunity  to  be  heard.  The  ques- 
tion whether  or  not  a  given  act  constitutes  a  surrender  in  law  is  a 
purely  legal  one  and  where,  as  in  the  present  case,  the  act  on  which 
the  law  operates  is  conclusively  established  beyond  any  controversy 
or  jury  question,  the  legal  question  thus  presented  may  be  decided 
by  the  appellate  court,  provided  it  was  one  of  the  issues  raised  at  the 
trial,  and  one  of  the  matters  argued  or  presented  for  argument  in 
the  appellate  court.  The  present  case  complies  with  each  of  these 
conditions.  The  abandonment  of  the  option  and  the  surrender  of 
the  lease  were  specially  pleaded  by  the  defendant,  who  fully  sup- 
ported them  by  proof  at  the  trial  where  the  parties  had  an  equal  op- 
portunity to  litigate  them.  Both  matters  have  been  argued  by  coun- 
sel for  defendant  in  his  brief  in  this  court  and  if  the  plaintiff's  coun- 
sel has  not  done  so  it  was  because  he  did  not  choose  to  avail  himself 
of  the  right  of  reply  afforded  by  our  rules ;  on  tlie  oral  argument 
reference  was  pointedly  made  to  these  questions  and  the  attention 
of  counsel  directed  to  them.  The  questions  thus  presented  and  de- 
cided negative  the  averment  of  the  writ  of  error  that  the  plaintiff  is 
damnified  by  the  judgment  he  seeks  to  reverse;  upon  this  writ  of 
error,  therefore,  the  judgment  of  the  vSupreme  Court  must  be  af- 
firmed.° 


'In  Gillespie  v.  Ferguson,  78  N.  J.  L.  470,  74  Atl.  460  (1900),  the  plaintiff, 
a  discharged  employe  was  injured  before  leavinpf  tlie  defendant's  premises. 
A  nonsuit  was  entered  below  on  the  pround  that  no  duty  was  owinj?  to  the 
plaintiff.   On  error  judgment  was  affirmed  on  the  ground  that  plaintiff  on  his 


I  Kent's  commentaries  476  897 

I  Kent's  Commentaries  476 

A  solemn  decision  upon  a  point  of  law,  arising  in  any  given  case, 
becomes  an  authority  in  a  like  case,  because  it  is  the  highest  evi- 
dence which  we  can  have  of  the  law  applicable  to  the  subject,  and 
the  judges  are  bound  to  follow  that  decision  so  long  as  it  stands  un- 
reversed, unless  it  can  be  shown  that  the  law  was  misunderstood  or 
misapplied  in  that  particular  case.  If  a  decision  has  been  made  upon 
solemn  argument  and  mature  deliberation,  the  presumption  is  in 
favor  of  its  correctness;  and  the  community  have  a  right  to  regard 
it  as  a  just  declaration  or  exposition  of  the  law,  and  to  regulate  their 
actions  and  contracts  by  it.  It  would  therefore  be  extremely  incon- 
venient to  the  public,  if  precedents  were  not  duly  regarded  and  im- 
plicitly followed.    It  is  by  the  notoriety  and  stability  of  such  rules 

own  showing  had  been  guilty  of  contributory  negligence.  Trenchard,  J.,  said: 
"A  judgment  entered  upon  a  nonsuit  directed  by  the  trial  judge  and  brought 
up  for  review  will  be  affirmed  if  correct  on  any  legal  ground,  although  the 
reason  advanced  by  the  court  below  is  erroneous.  2  Enc.  P.  &  Pr.  372;  3 
Cyc.  221.  The  rule  announced  to  the  contrary  in  IVolfarth  V.  Sternberg, 
70  N.  J.  L.  198,  56  Atl.  173,  does  not  meet  the  approval  of  this  court." 

So,  generally,   "a  right  decision  will  not  be  reversed  merely  because  a 
wrong  reason  has  been  assigned  therefor."  Taylor  v.  Thomas,  129  N.  Y.  App. 
Div.  53   (1908);  Benson  v.  Bazvdcn,  149  Mich.  584,  113  N.  W.  20  (1907); 
Newell  V.  Wood,  i  Munf.   (Va.)   555   (1810)  ;  Easlev  v.  Craddock,  4  Rand. 
(Va.)  423  (1826)  ;  Prescott  v.  Hobbs,  30  Maine  345   (1849)  ;  Silsby  v.  Foote, 
14  How.  (U.  S.)  218,  14  L.  ed.  394  (1852)  ;  EUicott  v.  Turner  Peterson,  4  Md. 
476  (1853)  ;  Stiles  v.  Lightfoot,  26  Ala.  443  (1855)  ;  Thomas  v.  Mann,  28  Pa. 
St.   520   (1857);  Ireland  v.  Berryman,  3   Bush    (Ky.)    356    (1867);   Seyburn 
V.  Deyris,  25  La.  Ann.  483    (1873)  ;  Jamison  v.  Perry,  38  Iowa  14   (1873); 
Wieland  v.  Shillock,  23  Minn.  227  (1876) ;  Marvin  v.  Universal  Life  Ins.  Co., 
85  N.  Y.  278,  39  Am.  Rep.  657   (1881)  ;  Susguchanna  MittF.  Ins.   Co_,  v, 
Cackenbach,  im  Pa.  St.  dQ2.  9  Atl.  90  (1SS6)  ;  Christy  v.  Stafford,  123  III.  463, 
14  N.  E.  680   (1888);  Atzvood  V.  Partree,  56  Conn.  80,  14  Atl.  85    (1888); 
Whitehead  v.  Patterson,  88  Ga.  748,  16  S.  E.  66  (1891)  ;  Howes  v.  District, 
2  App.  Cas.  D.  C.  188  (1894)  ;  York  Mfg.  Co.  v.  Bessemer  Ice  Mfg.  &c.  Co., 
Ill  Ala.  332,  20  So.  13  (1895)  ;  Estate  of  Grossman,  175  111.  425,  51  N.  E.  750, 
67  Am.  St.  219  (1898)  ;  Blanchard  v.  Wilbur,  153  Ind.  387,  55  N.  E.  99  (1899)  ; 
Brew  V.  Hastings,  ^rrfS  Pa    155,  55  Atl.  922  (1903)  ;  McNicholas  V.  Tinsler,  127 
111.  App.  381  (1906)  ;  Qorgan  v.  George  F.  Lee  Coal  Co.,  218  Pa.  386,  67  Atl. 
655  (1907)  ;  Cleqq  v.  Senhnnrd  .'sUTl  Ca'^tlndTo..  T.4Va7SmffeT,  Ct.  63  0907)  ; 
Fordyce  L.  Co.  v.  Wallace,  85  Ark.  I,  107  S.  W.  160  (1907)  ;  Vasserv.  Lib~erty, 
50  Tex.  Civ.  App.  iii,  no  S.  W.  119  (1908)  ;  Woodward's  Appeal,  81  Conn. 
152,  70  Atl.  453  (1908)  ;  Depue  v.  Miller,  65  W.  Va.  120,  64  S.  E.  740  (1909) ; 
Miirrell  v.  Peterson,  57  Fla.  480,  49  So.  31  (1909)  ;Vogel  v.  Minn.  Canal  Co.,  47 
Colo.  534,  107  Pac.  1108  (1910)  ;  Joslyn  v.  Cadillac  Automobile  Co.,  177  Fed.  863 
(1910)  ;  Tucker  v.  Gillespy,  169  Ala.  491,  53  So.  909  (1910)  ;  Londonderry  v. 
Fryor,  84  Vt.  294,  79  Atl.  46  (1911)  ;  McKee  v.  Title  Ins.  Co.,  159  Cal.  206, 
113   Pac.    140    (1911)  ;   Lopes  v.    Conolly,  210   Mass.   487,  97   N.   E.  80,   38 
L.  R.  A.  (N.  S.)  986n  (1912)  ;  Fountain  v.  Standard  Fire  Ins.  Co.,  155  Iowa 
96,  134  N.  W.  1090  (1912)  ;  McDermott  v.  Burke,  256  111.  401,  100  N.  E.  168 
(1912)  ;  Meiscl  V.  Merchants  Nat.  Bank,  85  N.  J.  L.  253,  88  Atl.  1067  (1913)  ; 
Upham  V.  Plankinton,  152  Wis.  275,  140  N.  W.  5  (1913)  ;  Hendricks  v.  Jack- 
son, 139  Ga.  604,  77  S.  E.    816  (1913)  ;  Adams  v.  Boston  E.  R.  Co.,  214  Mass. 
I,  100  N.  E.  1012  (1913)  ;  Thomas  v.  Brown,  168  Mo.  App.  667,  154  S.  W.  423 
(1913);   Cooper  V.  Romney,  49  Mont.  119,  141  Pac.  289   (1914)  ;   Thompson 
v.  Southern  Lumber  Co.,  113  Ark.  380,  168  S.  W.  106S  (1914)  ;  Fourth  Nat. 
Bank  of  Macon,  Ga.,  v.  Willingham,  213  Fed.  219  (1914)  ;  Young  v.  Duncan, 
218  Mass.  346,  106  N.  E.  I  (1914). 

57 — Civ.  Prog. 


8;;S  Arri:AL  and  error 

tliat  professional  men  can  give  safe  advice  to  those  ^vho  consult 
tliem ;  and  people  in  general  can  venture  with  confidence  to  buy  and 
trust,  and  to  deal  with  each  other.  If  judicial  decisions  were  to  be 
lightly  disregarded,  we  should  disturb  and  unsettle  the  great  land-- 
marks  of  property.  When  a  rule  has  been  once  deliberately  adopted 
and  declared,  it  ought  not  to  be  disturbed,  imless  by  a  court  of  ap- 
peal or  review,  and  never  by  the  same  court,  except  for  very  cogent 
reasons,  and  upon  a  clear  manifestation  of  error;  and  if  the  practice 
were  otherwise,  it  would  be  leaving  us  in  a  state  of  perplexing  uncer- 
tainty as  to  the  law.  The  language  of  Sir  William  Jones  is  exceed- 
ingly forcible  on  this  point.  "No  man,"  says  he,  "who  is  not  a  law- 
yer, M'ould  ever  know  how  to  act;  and  no  man  who  is  a  lawyer 
would,  in  many  instances,  know  what  to  advise,  unless  courts  v/ere 
bound  by  authority  as  firmly  as  the  pagan  deities  were  supposed 
to  be  bound  by  the  decrees  of  fate."'' 

Throughout  the  whole  period  of  the  year  books,  from  the  reign 
of  Edward  III  to  that  of  Henry  VII,  the  judges  were  incessantly 
urging  the  sacredness  of  precedents,  and  that  a  counsellor  was  not 
to  be  heard  wdio  spoke  against  them,  and  that  they  ought  to  judge 
as  the  ancient  sages  taught.  If  we  judge  against  former  precedents, 
said  Chief  Justice  Prisot,  it  will  be  a  bad  example  to  the  barristers 
and  students  at  law,  and  they  will  not  give  any  credit  to  the  books, 
or  have  any  faith  in  them.^  So  tlie  Court  of  King's  Bench  observed 
in  the  time  of  James  I,  that  the  point  which  had  been  often  adjudged 
ought  to  rest  in  peace.^  The  inviolability  of  precedents  was  thus  in- 
culcated at  a  period  which  we  have  been  accustomed  to  regard  as  the 
infancy  of  our  law,  with  as  much  zeal  and  decision  as  at  any  subse- 
quent period. 

But  I  wish  not  to  be  understood  to  press  too  strongly  the  doc- 
trine of  stare  decisis,  when  I  recollect  that  there  are  more  than  one 
thousand  cases  to  be  pointed  out  in  the  English  and  American  books 
of  reports,  which  have  been  overruled,  doubted,  or  limited  in  their 
application.  It  is  probable  that  the  records  of  many  of  the  courts  in 
this  country  are  replete  with  hasty  and  crude  decisions;  and  such 
cases  ought  to  be  examined  without  fear,  and  revised  v/ithout  re- 
luctance, rather  than  to  have  the  character  of  our  law  impaired,  and 
the  beauty  and  harmony  of  the  system  destroyed  by  the  perpetuity 


^Tories  on  Bailments,  46. 

*V.  B.  33,  Hen.  Vl  41.  See  further  Pollock's  First  Book  of  Jurispru- 
dence, ch.  6. 

^Spiccr  V.  Spiccr,  Cro.  Jac.  527  (1619).  The  doctrine  of  stare  decisis,  it  is 
said,  is  most  strictly  applied  when  decisions  have  settled  rules  of  property 
upon  v.hich  rights  are  predicated  and  under  which  titles  have  vested.  26  A. 
&  E.  Encyc.  of  Law  (2d  ed.)  180;  Black  on  Judicial  Precedents,  §§  76-80; 
Goodtitle  v.  Otway,  7  T.  R.  399  (1797)  at  p.  419;  Anderson  ex  dcm.  Eden  v. 
Jackson,  16  Johns.  (N.  Y.)  382  (1819)  ;  Goodcll  v.  Jackson  ex  deni.  Smith, 
20  Johns.  (N.  Y.)  693,  II  Am.  Dec.  351  (1823)  ;  Doe  ex  dem.  Clarke  v. 
Ludlam,  7  Bingh.  275  (1831)  ;  White  v.  Denman,  I  Ohio  St.  no  (1853); 
Reichert  v.  McClure,  23  111  516  (i860) ;  Kurts^^i^OimitrU,  2t8  Pa._5g4t.67 
Atl.  843  (1907);  Cape  Girardeau  B.  R.  Co.  v.  Southern  Illinois  &  Missouri 
Bridge  Co.,  215  Mo.  286,  114  S.  W.  1084  (1908)  ;  Jefferson  v.  Bangs,  197  N.  Y. 
35,  90  N.  E.  109,  134  Am.  St.  S56  (1909)  ;  Miles  v.  National  Bank,  140  Ky.  376, 
131  S.  Vv'.  26  (1910). 


I  Kent's  commentaries  476  899 

of  errors.  Even  a  series  of  decisions  are  not  always  conclusive  evi- 
dence of  what  is  law ;  and  the  revision  of  a  decision  very  often  re- 
solves itself  into  a  mere  question  of  expediency,  depending  upon 
the  consideration  of  the  importance  of  certainty  in  the  rule,  and  the 
extent  of  property  to  be  affected  by  a  change  of  it.  Lord  Mansfield 
frequently  observed,  that  the  certainty  of  a  rule  was  often  of  much 
more  importance  in  mercantile  cases  than  the  reason  of  it,  and  that  a 
settled  rule  ought  to  be  observed  for  the  sake  of  property ;  and  yet, 
perhaps,  no  English  judge  ever  made  greater  innovations  and  im- 
provements in  the  law,  or  felt  himself  less  embarrassed  with  tlie  dis- 
position of  the  elder  cases  when  they  came  in  his  way,  to  impede  the 
operation  of  his  enlightened  and  cultivated  judgment.  The  law  of 
England,  he  observed,  would  be  an  absurd  science,  were  it  founded 
upon  precedents  only.  Precedents  were  to  illustrate  principles  and 
to  give  them  a  fixed  certainty.  His  successor,  Lord  Kenyon,  acted 
like  a  Roman  dictator,  appointed  to  recall  and  reinvigorate  the 
ancient  discipline.  Lie  controlled  or  overruled  several  very  impor- 
tant decisions  of  Lord  Mansfield,  as  dangerous  innovations,  and  on 
the  grotind  that  they  had  departed  from  the  precedents  of  former 
times,  disturbed  the  landmarks  of  property,  and  had  unauthorizedly 
superadded  equity  powers  to  a  court  of  law.  "It  is  my  wish  and  my 
comfort,"  said  the  venerable  judge,  "to  stand  super  antiquas  vias.  I 
can  not  legislate,  but  by  my  industry  I  can  discover  what  our  prede- 
cessors have  done,  and  I  will  tread  in  their  footsteps."  The  English 
courts  seem  now  to  consider  it  to  be  their  duty  to  adhere  to  the 
authority  of  adjudged  cases,  when  they  have  been  so  clearly,  and  so 
often,  or  so  long  established,  as  to  create  a  practical  rule  of  prop- 
erty, notwithstanding  they  may  feel  the  hardship,  or  not  perceive  the 
reasonableness,  of  the  rule.^"  There  is  great  weight  in  the  maxim  of 
Lord  Bacon,  that  optima  est  lex,  quae  minimum  relinquit,  arbitrio 
judicis;  optimus  judex,  qui  minimum  sibi.^^  The  great  difficulty  as 
to  cases  consists  in  making  an  accurate  application  of  the  general 
principle  contained  in  them  to  new  cases,  presenting  a  change  of  cir- 
cumstances. If  the  analogy  be  imperfect,  the  application  may  be 
erroneous.  The  expressions  of  every  judge  must  also  be  taken  with 
reference  to  the  case  on  which  he  decided ;  we  must  look  to  the  prin- 
ciple of  the  decision,  and  not  to  the  manner  in  which  the  case  is 
argued  upon  the   bench,    otherwise  the   law   will   be   thrown   into 


'"See  Hallett's  Estate  (1879),  13  Ch.  Div.  696;  Pugh  v.  Golden  Val.  R.  Co., 
IS  Ch.  Div.  330  (1880)  ;  In  re  Lashmar  (1891),  i  Ch.  258  at  pp.  267,  268; 
Fledge  v.  Carr,  64  L.  J.  51  (1895)  ;  Vale  v.  Rice,  104  L.  T.  658  (1911).  In 
Osborne  v.  Rowlett  (1879),  13  Ch.  Div.  785,  it  is  said,  however,  by  Jessel, 
M.  R. :  "Now  I  have  often  said,  and  I  repeat  it,  that  the  only  thing  in  a 
judge's  decision  binding  as  an  authority  upon  a  subsequent  judge  is  the  prin- 
ciple upon  which  the  case  was  decided :  but  it  is  not  sufficient  that  the  case 
.should  have  been  decided  on  a  principle  if  that  principle  is  not  itself  a  right 
principle,  or  one  not  applicable  to  the  case;  and  it  is  for  a  subsequent  judge 
to  say  whether  or  not  it  is  a  right  principle,  and,  if  not,  he  may  himself  lay 
down  the  true  principle."  See  also  In  re  Reiser,  79  Misc.  668,  140  N.  Y.  S. 
844  (1913)  ;  Montrose  v.  Baggott,  161  App.  Div.  494,  146  N.  Y.  S.  649  (1914). 

"Bacon's  Works  II  448,  Aphor.  46. 


cxK)  Arri.AL  Axn  i:kror 

extreme  confusion.  The  exercise  of  sound  judi^nicnt  is  as  necessary 
in  the  use,  as  dihgence  and  learning  arc  requisite  in  the  pursuit,  of 
adjudged  cases. ^^ 


HERTZ  r.  WOODMAN 

Supreme  Court  of  the  United  States,  1910 

218  U.  S.  20s 

This  case  comes  to  this  court  upon  a  certificate  under  par.  6  of 
tlie  Act  of  1891,  creating  circuit  courts  of  appeals.  The  action  in  the 
circuit  court  was  one  by  the  executor  and  legatees  under  the  will  of 
James  F.  Woodman,  to  recover  an  amount  of  money  which  had  been 
paid,  under  protest,  as  a  tax  upon  legacies  tmder  the  will  of  the  tes- 
tator, by  virtue  of  sections  29  and  30  of  the  Act  of  June  13,  1898, 
and  amendments,  known  as  the  War  Revenue  Act. 

The  facts  certified  are :  That  Woodman  died  at  Chicago,  March 
15,  1902,  leaving  a  will,  which  w-as  there  duly  probated  on  May  3, 
1902,  and  that  the  Illinois  Trust  and  Savings  Bank  qualified  as 
executor.  The  clear  value  of  legacies  payable  under  the  will  to  the 
defendants  in  error  w^as  $166,250.  On  January  17,  1905,  and  before 
the  payment  of  these  legacies,  the  collector  claimed  and  collected, 
as  the  amount  of  duty  and  tax  due  and  payable  upon  said  legacies, 
under  the  act  of  Congress  before  mentioned,  the  sum  of  $2,812.49. 
After  stating  the  facts,  substantially  as  above,  the  certificate  con- 
cludes as  follows : 

"Upon  the  foregoing  facts  the  question  of  law  concerning  which 
this  court  desires  the  instruction  and  advice  of  the  Supreme  Court 
is  this:  Does  the  fact  that  the  testator  dies  within  one  year  imme- 
diately prior  to  the  taking  effect  of  tlie  repealing  Act  of  April  12, 
1902  (U.  S.  Comp.  Stat.  Supp.  1903,  p.  279),  relieve  from  taxation 
legacies  otherwise  taxable  under  sections  29  and  30  of  the  Act  of 
June  13,  1898,  as  amended  by  the  Act  of  Llarch  2,  1901  ?"  ^^ 


"See  further  Bates  v.  Relyea,  23  Wend.  (N.  Y.)  336  (1840)  ;  Callender  v. 
Ke^stoneJUutjialJ^I nj^_Co. _,_22^Pdi.  St.  471  (1854)  ;  Martin  v.  Martin,  25  Ala. 
201  (1854)  ;  Hart  v.  Burnett,  15  Cal.  530  (i860);  Ocean  Beach  Assn.  v. 
Brinley,  34  N.  J.  Eq.  438  (1881)  ;  Hibbits  v.  Jack,  97  Ind.  570,  49  Am.  Rep. 
478  (1884)  ;  Paul  V.  Davis,  100  Ind.  422  (1884)  ;  Ellison  v.  Georgia  R.  Co.,  87 
Ga.  691,  13  S.  E.  809  (1891);  Rumsey  v.  Neii)  York  &  N.  E.  R. 
Co.,  133  N.  Y.  79,  30  N.  E.  654,  IS  L.  R.  A.  618,  28  Am.  St.  600 
(1892)  ;  Truxton  v.  Fait,  I  Pen.  (Del.)  483,  42  Atl.  431,  73  Am.  St.  81 
(1899);  Daniels  v.  State,  2  Pen.  (Del.)  586,  48  Atl.  156,  54  L.  R.  A.  286 
(1901);  Bradcr  v.  Brader,  no  Wis.  423,  85  N.  W.  681  (looi)  ;  Thomas  v. 
Blair,  in  La.  678,  35  So.  811  (1903)  ;  Washington  R.  Co.  v.  Chapman, 
26  App.  D.  C.  472  (1906)  ;  Bozinnan  v.  Essex  Freeholders,  73  N.  J.  L.  543, 
64  Atl.  loio  (1905)  ;  Commonwealth  v.  Walsh,  196  Mass.  369,  82  N.  E.  19 
(1907)  ;  Daughty  v.  Northwestern  R.  Co.,  92  S.  Car.  361,  75  S.  E.  553  (1912)  ; 
Goehegan  v.  Union  E.  R.  Co.,  266  III.  482,  107  N.  E.  786  (1915). 

"The  statement  of  facts  is  from  the  opinion  of  the  court,  only  a  portion 
of  which  is  printed.  On  the  merits,  the  question  certified  was  answered  in 
the  negative.    Fuller,  C.  J.,  McKenna  and  Day,  JJ.,  dissenting. 


i 


HERTZ   V.    WOODMAN  9OI 

LuRTON,  J. :  It  is  urged  that  the  Circuit  Court  of  Appeals  for  the 
Seventh  Circuit  is  precluded  from  requesting  the  instruction  of  this 
court,  because  it  had  in  two  cases  theretofore  decided  the  very  ques- 
tion now  certified.  United  States  v.  Marion  Trust  Co-,  143  Fed. 
301 ;  United  States  v.  Stephenson,  not  yet  reported.  In  both  cases 
the  decision  was  adverse  to  the  contention  of  the  United  States. 
The  first  was  affirmed  by  this  court  without  opinion,  by  an  evenly 
divided  court,  203  U.  S.  594,  and,  in  the  second,  an  application  by 
the  United  States  for  a  writ  of  certiorari  was  denied.  212  U.  S.  527. 
It  is  further  contended  that,  if  not  concluded  by  its  own  decisions 
it  was  bound  to  follow  the  judgment  of  this  court  in  Eidman  v. 
Tilghman,  affirming  the  judgment  of  the  circuit  court  of  appeals  of 
the  second  circuit,  reported  in  136  Fed.  141,  the  affirmance  by 
this  court  being  reported  in  203  U.  S.  580,  and  similar  judgments  of 
affirmance  in  Philadelphia  Trust  Co.  v.  McCoach,  142  Fed.  120, 
and  203  U.  S.  539,  and  United  States  v.  Marion  Trust  Co-,  supra. 

All  of  these  cases  were  affirmances  by  an  equally  divided  court 
of  the  judgments  of  the  court  below  in  favor  of  the  legatees  or  dis- 
tributees who  had  sued  to  recover  taxes  paid  upon  legacies  or  shares 
Avhich  had  passed  to  the  plaintiff  within  one  year  after  the  death  of 
the  testator  or  intestate,  the  several  lower  courts  having  ruled  that 
the  tax  had  not  been  saved  because  it  was  not  due  and  payable  at  the 
time  of  the  repeal  of  the  act  under  which  the  tax  was  claimed. 

The  circuit  court  of  appeals  was  obviously  not  bound  to  follow 
its  own  prior  decision.  The  rule  of  stare  decisis,  though  one  tend- 
ing to  consistency  and  uniformity  of  decision,  is  not  inflexible. 
Whether  it  shall  be  followed  or  departed  from  is  a  question  entirely 
within  the  discretion  of  the  court,  which  is  again  called  upon  to  con- 
sider a  question  once  decided.  The  court  below  in  this  instance, 
when  called  upon  to  reconsider  its  former  construction  of  tlie  in- 
heritance tax  act,  found  itself  confronted  by  the  fact  that  this  court 
had  been  equally  divided  in  opinion  as  to  the  proper  interpretation 
of  the  act,  and  for  that  reason  alone  obliged  to  affirm  the  ruling  of 
that  and  other  courts  against  the  legality  of  the  tax  w^hich  had  been 
collected.  If  the  decision  of  the  court  under  review  had  been  in 
favor  of  the  legality  of  the  tax  an  affirmance  must  likewise  have  re- 
sulted from  an  equal  division.  That  court  also  found  that  its  own 
former  view  of  the  act  had  not  been  satisfactory  to  the  circuit  court 
of  appeals  for  the  eighth  circuit,  which  court  had  decided  contrari- 
wise in  IVcsthus  v.  Union  Trust  Co.,  164  Fed.  795.  In  such  cir- 
cumstances the  court  below  was  not  only  free  to  regard  the  ques- 
tion as  one  open  for  determination,  but  one  which  might  well  be  cer- 
tified to  this  court,  that  tlie  question  of  law  which  had  never  been 
authoritatively  decided  by  this  court  might  be  so  determined  by  an 
instruction  as  to  how  it  should  decide  the  matter  when  thus  pre- 
sented for  reconsideration. 

When  this  court  in  the  exercise  of  its  appellate  powers  is  called 
upon  to  decide  whether  that  which  has  been  done  in  the  lower  court 
shall  be  reversed  or  affirmed,  it  is  obvious  that  that  which  has  been 
done  must  stand  unless  reversed  by  the  affirmative  action  of  a  ma- 


C)02  APPEAL   AND   ERROR 

jority."  It  has  therefore  been  the  invariable  practice  to  affirm,  with- 
out opinion,  any  judgment  or  decree  which  is  not  decided  to  be 
erroneous  by  a  majority  of  the  court  sitting  in  the  cause.  The 
earhcst  precedent  is  that  of  Ettlng  v.  United  States  Bank,  ii  Wheat. 
(U.  S.)  59,  yS.  Chief  Justice  Marshall  said  at  the  conclusion  of  the 
opinion :  "In  the  very  elaborate  arguments  which  have  been  made  at 
the  bar,  several  cases  have  been  cited  which  have  been  attentively 
considered.  No  attempts  will  be  made  to  analyze  them,  or  to  decide 
on  their  application  to  the  case  before  us,  because  the  judges  are 
divided  respecting  it.  Consequently,  the  principles  of  law  which 
have  been  argued  can  not  be  settled;  but  the  judgment  is  affirmed, 
the  court  being  divided  in  opinion  upon  it." 

In  Durant  v.  Essex  Co.,  y  Wall.  (U.  S.)  107,  no,  Mr.  Justice 
Field,  for  this  court,  said,  in  respect  of  the  effect  of  the  affirmance 
by  a  divided  court:  "There  is  nothing  in  the  fact  that  the  judges 
of  this  court  were  divided  in  opinion  upon  the  question  whether  the 
decree  should  be  reversed  or  not,  and,  therefore,  ordered  an  affirm- 
ance of  the  decree  of  the  court  below.  The  judgment  of  affirmance 
was  the  judgment  of  the  entire  court.  The  division  of  opinion  be- 
tween the  judges  was  the  reason  for  the  entry  of  this  judgment;  but 
the  reason  is  no  part  of  the  judgment  itself." 

To  the  same  effect  are  IVesthus  v.  Union  Trust  Co.,  168  Fed. 
617;  Hartmann  v.  Greenhow,  102  U.  S.  672,  676.  A  different  rule 
seems  to  have  been  sanctioned  in  the  English  courts. ^^  Catherzvood 
V.  Ccslon,  13  Mees.  &  Wells.  261 ;  Beamish  v.  Beamish,  9  H.  L. 
Cas.  274. 


"Accord;  Comniomvealth  v.  Bcaiimar dials,  3  Call  (Va.)  122  (1801)  ; 
Clark  V.  Kean,  1  Del.  Ch.  114  (1820)  ;  The  Antelope,  10  Wheat.  (U.  S.)  66, 
6  L  ed  268  (1825)  ;  Etting  v.  Bank  of  United  States,  11  Wheat.  (U.  S.)  59, 
6  L.  ed.  419  (1826)  ;  Beltzhoover  v.  DnrraaL^iLS^UL  &  R.  (Pa.)  .329  (1827)  ; 
Bridge  v.  Johnson,  5  Wend.  (N.  Y.)  342  (1830)  ;  Cook  v.  Drew,  3  S.  &  P. 
(Ala.)  392  (1833);  Shannon  v.  Sliannon,  92  Mass.  (10  Allen)  249  (1865); 
Htmcke  V.  Francis,  27  N.  J.  L.  55  (1858)  ;  Newman  v.  Wriglit,  28  Ind.  105 
(1867)  ;  Channon  Co.  v.  Hahn,  90  111.  App.  256  (1890)  ;  Gran  v.  Spagenherg, 
53  Minn.  42,  ^4  N.  W.  933  (1893)  ;  Santa  Rosa  R.  Co.  v.  Central  R.  Co.,  112 
Cal.  436,  44  Pac.  733  (1896)  ;  Fisher  v.  Kansas  City  Mining  Co.,  30  Colo.  220, 
70  Pac.  330  (1902);  Noileyj^^SluinrLak£X^.2.S^V7i.  Super.  Ct.  S84  (1904)  : 
Barnard  &  Leas  Mfg.  Co.  v.  Smith,  77  Ark.  590,  92  5:  W.  858  (1906); 
Hutchinson  v.  Turner,  88  S.  Car.  318,  70  S.  E.  410,  70  S.  E.  806  (1910)  ; 
Pensacola  Electric  Co.  v.  Humphreys,  61  Fla.  389,  54  So.  452  (1911)  ;  Dillivan 
V.  German  Sav.  Bank  (Iowa),  136  N.  W.  120;  Abbottv.  Treat  (Maine),  87  Atl. 
361  (1913)  ;  Rubinozv  v.  Public  Service  R.  Co.,  87  N.  J.  L.  328,  94  Atl.  54  (1915)- 
In  S7nith  v.  United  States,  5  Pet.  (U.  S.)  292,  8  L.  ed.  130  (1831),  judgment 
was  reversed  by  a  majority  of  the  court  although  on  each  of  the  prmcipal 
prounds  of  error  a  majority  of  the  members  of  the  court  did  not  find  error. 
The  minorities  were  held  to  unite  and  constitute  a  majority.  Contra:  Shollen-_ 
hrrqrrv  Ftrifiinn,  g2  Pa.  St.  Q.  ID  ( 1 8663  ;  Grogan  V.  Wisconsin  Sugar  Co., 
15'b  VV^.  406,  146  N.  W.  491  (1914).  Compare  Florida  East  Coast  R.  Co.  v. 
Hayes.  6s  Fla.  i,  60  So.  782  (1913)- 

"At  common  law  on  error  in  the  King's  Bench  when  the  court  was 
equally  divided  no  action  could  be  taken  without  consent.  Thornby  v.  Fleet- 
wood'  I  Str.  379  (1719);  Dean  v.  Pierce,  i  Camn.  466  (1808);  Chapman  v. 
J.amphire,  3  Mod.  1^5  (1687).  See  Iveson  v.  Moore,  i  Salk.  15  (1698); 
Procter's  Case,  12  Coke  1 18  (1614)  ;  Deane  v.  Clayton,  7  Taunt.  489  (1817). 
In  the  Exchequer  Chamber  and  House  of  Lords  judgment  was  affirmed,  2 


SOUTHERN    BELL   TEL.    &   T.    CO.    V.    GLAWSON  903 

Under  the  precedents  of  this  court,  and  as  seems  justified  by 
reason  as  well  as  by  authority,  an  affirmance  by  an  equally  divided 
court  is  as  between  the  parties  a  conclusive  determination  and  ad- 
judication of  the  matter  adjudged,  but  the  principles  of  law  involved 
not  having  been  agreed  upon  by  a  majority  of  the  court  sitting  pre- 
vents the  case  from  becoming  an  authority  for  the  determination  of 
other  cases,  either  in  this  or  in  inferior  courts.^®  The  affinnance  by 
a  divided  court  in  the  second  case  shows  this,  for  if  it  was  not  so  the 
second  equal  division  could  not  have  happened,  for  the  case  would 
have  been  controlled  by  the  first  equal  division. 

We  shall  therefore  proceed  to  determine  the  question  of  law 
presented  by  the  cerificate  of  the  circuit  court  of  appeals,  feeling 
free  to  decide  it  as  our  judgments  may  dictate. 


SOUTHERN  BELL  TEL.   &  T.   CO.  v.   GLAWSON 

Supreme  Court  of  Georgia,  19 13 

140  Ga.  507 

The  Court  of  Appeals  certified  the  following  question: 
"Where  a  petition  is  dismissed  in  the  trial  court  upon  general 
demurrer,  and  that  judgment  has  been  reviewed  by  the  court  of 
appeals  and  reversed  in  a  decision  holding  that  the  petition   sets 


Tidd's  Pr.  (gth  ed.)  1178.  In  the  present  Court  of  Appeals  where  the  court 
is  equally  divided  the  judgment  of  the  court  below  stands.  The  Franconia, 
2  P.  D.  163  (1877),  but  the  case  does  not  become  a  precedent  to  be  followed 
in  similar  cases  subsequently  brought  before  the  court.  TJie  Vera  Cruz  (No. 
2),  9  P.  D.  96  (1881).  In  Eastern  Steamship  Co.  v.  Smith,  L.  R.  (1891), 
A.  C.  310,  in  the  House  of  Lords,  where  the  court  was  equallj^  divided  the 
record  is  as  follows:  "Question  put,  that  the  judgment  or  decree  complained 
of  be  reversed;  and  it  appearing  that  the  votes  were  equal,  thereupon  accord- 
ing to  the  ancient  rule  in  the  law,  semper  praesumitiir  pro  negante,  it  was 
determined  in  the  negative;  therefore  the  judgment  or  decree  complained  of 
was  affirmed,  and  the  appeal  dismissed."  Accord:  Paqnin  v.  Beariclerk  (i9o5), 
A.  C.  148;  Jolly  V.  Kine  (1907),  A.  C.  i ;  Smith  v.  Lion  Brezvery  Co.  (1911), 
A.  C.  150.  In  Beamish  v.  Beamisli,  9  H.  L.  C.  274  (1861),  it  is  laid  down  by 
Lord  Campbell  that  a  decision  of  the  House  of  Lords,  although  the  lords  are 
equally  divided,  is  as  binding  on  the  House  itself  and  upon  all  inferior  courts 
as  if  it  had  been  pronounced  nemine  dissentiente. 

"Accord :  People  ex  rel.  The  Attorney-General  v.  Nezv  York,  25  Wend. 
(N.  Y.)  252,  35  Am.  Dec.  66g  (1840),  at  p.  256;  Morse  v.  Goold,  11  N.  Y.  281, 
62  Am.  Dec.  103  (1854)  ;  Hopkins  v.  McCann,  19  111.  113  (1857)  ;  Dubuque  v. 
Illinois  Cent.  R.  Co.,  39  Iowa  56  (1874)  ;  Griel's  Estate.  171  Pa.  St.  412,  .33  Atl. 
375  (1891)  ;  Luco  v.  DeToro,  88  Cal.  26,  25  Pac  983,  11  L.  R.  A.  543  (1891)  ; 
Stanstcad  Election  Case,  20  Canada  Sup.  Ct.  12  (1891)  ;  Pnryear  v.  Lynch, 
121  N.  Car.  255,  28  S.  E.  410  (1897)  ;  State  ex  rel  Hampton  v.  McCliing, 
47  Fla.  224,  37  So.  51  (1904)  ;  Hand  v.  Stapleton,  145  Ala.  118,  39  So.  651 
(1905)  ;  Territory  v.  Gaines,  il  Ariz.  270,  93  Pac.  281  (1908)  ;  Kalamazoo  v. 
Craivford,  154  Mich.  58,  117  N.  W.  572  (1908)  ;  Fleming^  v^  Philadelphia  Co., 
234  Pa.  74,  82  Atl.  1095  (1912)  ;  Dewey  Land  Co.  vrSTevens,^'K.  J .  Eq.,  314, 
90  Atl.  1040  (1914).  Contra  :F/orenrc  v.  Berry,  62  S.  Car.  469,  40  S.  E.  871 
C1901)  ;  American  Mortg.  Co.  of  Scotland  v.  Woodward,  83  S.  Car.  -n, 
65  S.  E.  739  (1909). 


qo.\.  APPEAL   AND    ERROR 

forth  a  cause  of  action,  ami,  subsequently  to  the  rendition  of  such 
decision  by  the  Coiu't  of  Appeals,  the  Supreme  Court  renders  a  deci- 
sion in  another  case,  the  elTect  of  which  is  to  show  that  the  decision 
of  the  Court  of  Appeals  is  erroneous,  and,  after  the  rendition  of 
such  decision  by  the  Supreme  Court,  the  case  first  mentioned  again 
comes  before  the  Court  of  Appeals  upon  writ  of  error  assigning  error 
upon  the  judgment  overruling  a  motion  for  new  trial  filed  by  the  de- 
fendant, is  the  Court  of  Appeals,  upon  consideration  of  the  second 
writ  of  error,  bound  by  its  own  decision  in  the  former  case,  or  should 
it  follow  and  apply  the  contrary  decision  of  the  Supreme  Court?"  ^^ 
LuMPKix,  J.:  The  first  question  propounded  by  the  Court  of 
Appeals  raises  an  interesting  question  of  practice.  It  involves  what 
is  commonly  called  the  doctrine  of  "the  law  of  the  case."  This  doc- 
trine is  thus  stated  in  26  A.  &  E.  Encyc.  of  Law  (2d  ed.),  184: 
"The  doctrine  of  'the  law  of  the  case'  may  be  stated  thus :  A  matter 
decided  on  one  appeal  can  not  be  re-examined  on  a  second  appeal 
in  the  same  case;  for  the  decision  of  an  appellate  court,  whether 
right  or  wrong,  in  a  case  before  it,  is  conclusive  upon  the  points 
presented  throughout  all  the  subsequent  proceedings  in  the  case, 
both  upon  the  appellate  court  itself  and  upon  the  trial  court.  Con- 
cisely it  is  said  that  the  decision  on  appeal  becomes  'the  law  of  the 
case.'  "  ^^  In  this  court  the  rule  is  well  settled.  In  Western  & 
Atlantic  R.  Co.  v.  Third  Nat.  Bank,  125  Ga.  489,  it  was  held:   "A 

*'A  second  point  in  the  case  is  omitted. 

^Accord:  Skillcrn  v.  May,  6  Cranch  (U.  S.)  267,  3  L-  ed.  220  (1810)  ; 
The  Santa  Maria,  10  Wheat.  (U.  S.)  431.  6  L.  ed.  359  (1825);  Booth  v. 
Common-ivealth,  48  Mass.  (7  Mete.)  285  (1843);  Washington  Bridge  Co.  v. 
Steuart,  44  U.  S.  (3  How.)  413,  n  L.  ed.  658  (1845)  ;  Semple  v.  Anderson, 
9  111.  (4  Gilm.)  546  (1847);  Dewcv  v.  Gray,  2  Cal.  374  (1852);  Wilson  v. 
Wilson,  5  H.  L.  Cas.  40  (1854)  ;  Miller  v.  Jones,  29  Ala.  174  (1856)  ;  Beamish 
V.  Beamish,  9  H.  L.  Cas.  274  (1S59)  ;  Davidson  v.  Dallas,  15  Cal.  75  (i860)  ; 
Stacy  V.  Vermont  Cent.  R.  Co.,  32  Vt.  551  (i860)  ;  Leese  v.  Clark,  20  Cal.  387 
(1862)  ;  Mason  v.  Mason,  5  Bush.  (Kv.)  187  (1868)  ;  Page  v.  Fowler,  37  Cal. 
100  (i86q)  ;  Headlcv  v.  Challiss,  15  Kans.  602  (1875)  ;  Caverly  v.  McOwen, 
126  Mass.  222  (1879)  ;  Turner  v.  Staples,  86  Va.  300,  9  S.  E.  1 123  (i88g)  ; 
Brandnrui^-xiU^s^^^  St  88  (r^j^o)  ;  Klauber  v.  San  Diego  R.  Co.,  98  Cal. 
105,  32  Pac.  876  (1893)  ;  Henning  v.  Eldridge,  146  111.  305,  32  N.  E.  754  (1893)  ; 
Bolton  V.  Hey,  i68_Pa^_SL./iT8,  37  Atl.  1097  (1895)  ;  Brown  v.  Pontiac  Mm. 
Co.,  109  Mich.  535T67  N.  W.  546  (1896)  ;  Cowen  v.  Pennsylvania  Plate  Glass 
Co.',  188  Pa.  Sj.  542,  41  Atl.  615  (1898);  Saxe  v.  Burlington,  70  Vt.  449,  A} 
Atl  438  (1898)  ;  London  St.  Tramways  Co.  v.  London  County  Council, 
L  R.  (1898),  A.  C.  375;  Dempster  v.  People,  183  111.  321,  55  N.  E.  713  (1899)  ; 
Cottrell  V.  Watkins,  96  Va.  783,  32  S.  E.  470  (1899)  ;  Hopkins  v.  Roth,  105 
Ky  357  49  S  W.  18  (1899)  ;  Sherman  V.  Port  Huron  Engine  &c.  Co.,  13  S. 
Dak  95,' 82  N.  W.  413  (1900)  ;  In  re  Laudy,  161  N.  Y.  429,  55  N.  E.  914  (1900)  ; 
Smith  V.  Neufield,  61  Nebr.  699,  85  N.  W.  898  (1901)  (disapproving  Hastings 
V.  Foxworthy,  45  Nebr.  676,  63  N.  W.  955,  34  L-  R-  A.  321  (1895)); 
Illinois  V.  Illinois  Cent.  R.  Co.,  184  U.  S.  77,  46  L.  ed.  440  (1902); 
Hillyer  v.  Winstcd,  77  Conn.  304,  59  Atl.  40  (1904)  ;  James  v.  Lyons  Co.,  147 
Cal.  69,  81  Pac.  275  (190s)  ;  Harwi  Hardware  Co.  v.  Klippcrt,  7Z  Kans.  783, 
85  Pac.  784  (1906)  ;  Brady  v.  Carteret,  72  N.  J.  Eq.  904,  67  Atl.  606  (1907)  ; 
Alerding  v.  Alliwn,  170  Ind.  252,  83  N.  E.  1006  (1907);  Huntington  v. 
Westerfield,  119  La.  61s,  44  So.  317  (1907)  ;  Cape  Girardeau  &  T.  B  T  R. 
Co  V.  5".  T.  &  M.  Bridrje  Co.,  2m  Mo.  286,  114  S.  \V.  1084  (1908)  ;  McDon- 
ough  V  Williams,  86  Ark.  600,  112  S.  W.  164  (1908)  ;  Roach  v.  Sanborn  L.  Co., 
140  Wis  435,  122  N.  W.  1020  (1900)  ;  Smith  v.  Lord,  in  Md.  500,  75  Atl. 
109  (1909) /Heard  v.  Cherry,  150  Ky.  318,  ISO  S.  W.  361   (1912);  Brown  v. 


SOUTHERN    BELL   TEL.    &    T.    CO.    V.    GLAWSON  905 

decision  by  the  Supreme  Court  is  controlling  upon  the  judge  of  the 
trial  court,  as  well  as  upon  the  Supreme  Court  when  the  case  reaches 
that  court  a  second  time.  The  principle  in  the  decision  may  be 
reviewed  and  overruled  in  another  case  between  different  parties, 
but  as  between  the  parties  the  decision  stands  as  the  law  of  the  case, 
even  though  the  ruling  has  been  disapproved  by  the  Supreme  Court 
in  a  case  decided  before  the  second  appearance  of  the  case  in  that 
court."  ^°  Had  the  decision  on  the  demurrer  been  rendered  here,  it 
would  stand  as  the  law  of  the  case,  although  a  different  ruling  might 
have  been  made  in  regard  to  the  principle  involved  before  the  case 
reached  this  court  for  the  second  time.  Does  it  alter  the  rule  that 
the  decision  on  the  demurrer  was  made  by  the  Court  of  Appeals, 
and  that  the  case  is  in  that  court  for  the  second  time  ?  We  think  not. 
It  was  argued,  that,  as  the  constitution  declares  that  "the  decisions 
of  the  Supreme  Court  shall  bind  the  Court  of  Appeals  as  prece- 
dents," this  abolished  the  "law  of  the  case"  rule  under  circumstances 
like  those  involved  in  the  question  now  under  consideration ;  and 
that  the  Court  of  Appeals  was  bound  to  follow  the  later  decision  of 
this  court  on  the  same  principle  in  a  different  case,  instead  of  its 
own  former  decision  in  the  same  case.  To  this  contention  there  are 
two  replies.  The  first  is  that,  in  the  fallibility  and  imperfection 
which  inheres  in  all  human  institutions,  lawyers,  and  even  judges, 
sometimes  honestly  differ  as  to  tlie  application  of  a  precedent.  The 
Court  of  Appeals  is  a  court  of  last  resort  as  to  the  cases  within  its 
jurisdiction  (omitting  reference  to  constitutional  questions  and  cer- 
tified questions).  Its  decisions  wathin  its  jurisdiction,  are  final. 
They  can  not  be  treated  as  nullities.  If  by  any  chance  the  judgment 
in  a  particular  case  should  be  erroneous,  it  would  still  be  binding. 
Saffold  V.  Mangum,  139  Ga.  119;  Buck  v.  Duval,  139  Ga.  599.^*' 


Western  Union  Telegraph  Co.,  92  S.  Car.  354,  75  S.  E.  542  (1912)  ;  Norton  v. 
Lilley,  214  Mass.  239,  loi  N.  E.  367  (1913)  ;  O'Connor  v.  Great  Northern  R. 
Co.,  120  Minn.  359,  139  N.  W.  618  (1913)  ;  Gibson  v.  Clcary,  77  Wash.  683, 
138  Pac.  269  (1914)  ;  Monroe  v.  Penna.  R.  Co.,  87  N.  J.  L.  701,  94  Atl.  585 
(1915)  ;  Connelley  v.  Penna.  R.  Co.,  221  Fed.  508  (1915)  ;  Nat.  Bank  of  Com- 
merce V.  United  States,  224  Fed.  679  (1915).  In  some  jurisdictions  an  errone- 
ous judgment  may  be  overruled  on  a  second  appeal  in  the  same  case. 
Henry  V.  Atchison,  T.  &  S.  F.  R.  Co.,  83  Kans.  104,  109  Pac.  1005  (1910)  ; 
Moufton  v.  Reid,  54  Ala.  320  (1875),  statute;  Burns  v.  Ledhcttcr,  56  Tex.  282 
(1882) ;  United  States  v.  Elliott,  12  Utah  119,  41  Pac.  720  (1895)  ;  Beaky  v. 
Smith,  158  Mo.  515,  59  S.  W.  984,  81  Am.  St.  317  (1900),  and  semble;  Smith 
V.  Lewis,  26  Conn,  no  (1857)  ;  Penna.  Co.  v.  Piatt,  47  Ohio,  366,  25  N.  E. 
1028  (1890)  ;  Cluff  V.  Day,  141  N.  Y.  580,  36  N.  E.  182  (1894)  ;  Eaton  v.  Alger, 
47  N.  Y.  345  (1872). 

"Citing  Gilmore  V.  Johnson,  29  Ga.  67  (1859)  ;  Ingram  v.  Trustees  of 
Mercer  University,  102  Ga.  226,  29  S.  E.  273  (1897);  Allen  v.  Schweigert, 
113  Ga.  71,  38  S.  E.  397  (1901)  ;  McLandon  v.  Macon  D.  &  S.  R.  Co.,  123  Ga. 
253,  51  S  E.  317  (1905). 

-"Accord:  Wakelee  v.  Davis,  44  Fed.  532  (1891)  ;  Henning  v.  Eldridge, 
146  111.  305,  33  N.  E.  754  (1893)  ;  Silva  v.  Pickard,  14  Utah  245,  47  Pac.  144 
(1896)  ;  Solomon  V.  Continental  Fire  Ins.  Co.,  28  App.  Div.  213,  50  N.  Y.  S. 
922  (1898)  ;  Union  Nat.  Bank  of  Chicago  v.  Post,  93  111.  App.  339  (1900)  ; 
Morgan  v.  Johnson,  106  Fed.  452  (1901)  ;  Leeds  v.  New  York  Telephone  Co., 
79  App.  Div.  121,  80  N.  Y.  S.  114  (1903)  ;  Cleveland,  C,  C.  &  St.  L.  R.  Co.  v. 
Alfred,  123  111.  App.  477  (1905)  ;  In  re  School  Street  of  Yonkers,  162  App. 
Div.  158,  147  N.  Y.  S.  195  (1914). 


9o6  APPEAL   AND   ERROR 


Any  other  rule  would  create  utter  confusion.  It  is  the  duty  of  the 
superior  courts  to  follow  the  decisions  of  the  Supreme  Court  as 
precedents.  Suppose  a  superior  court  should  make  errors  in  the 
clTort  to  do  so,  but  no  exception  could  be  taken  to  the  judgment,  it 
could  not  be  disregarded  as  void.  There  must  be  somewhere  an  end 
of  controversy,  and  that  necessity  is  what  former  Chief  Justice 
Bleckley  doubtless  had  in  mind  when  in  his  opinion  in  Broome  V; 
Davis,  Sy  Ga.  584,  he  humorously  referred  to  "the  fallibility  which 
is  inherent  in  all  courts  except  those  of  last  resort." 

Counsel  for  the  plaintiff  in  error  relied  strongly  on  the  decision 
in  Messenger  v.  Anderson,  225  U.  S.  436.  But  the  statement  there 
made,  that  the  phrase,  "the  law  of  the  case,"  expresses  the  practice 
of  the  courts  generally  to  refuse  to  open  what  has  been  decided, 
rather  than  a  limit  on  their  povv'cr,  does  not  alter  the  fact  that  in 
courts  of  last  resort  the  rule  is  generally  followed.  We  need  not 
distinguish  between  the  propriety  of  the  Federal  Court  of  Appeals 
following  a  construction  of  a  will  by  the  higher  court  in  the  state 
where  it  was  executed  and  a  court  of  last  resort  following  its  deci- 
sion in  the  same  case.-^ 

To  the  first  question  propounded  we  accordingly  answer  that 
the  former  decision  of  the  Court  of  Appeals  has  settled  the  law  of 
the  case  to  the  extent  to  which  the  decision  went ;  and  it  should  be 
follov,-ed  in  this  case,  though  in  others  the  subsequent  decision  of 
the  Supreme  Court  should  be  followed.-" 


-*CitinR-  Illinois  V.  Illinois  Cent.  R.  Co.,  184  U.  S.  77,  46  L.  ed.  440  (1901)  ; 
United  States  v.  Camou,  184  U.  S.  572,  46  L.  ed.  694  (1901)  ;  Great  Western 
Tel.  Co.  V.  Burnham,  162  U.  S.  343,  40  L.  ed.  993  (1895).  And  see  King  v. 
IV est  Va.,  2i(i  U.  S.  92,  54  L.  ed.  396  (1909)- 

^Although  a  decision  has  been  overruled  in  a  subsequent  case  it  will 
continue  to  be  the  law  of  the  particular  case  in  which  it  was  made.  Thomson 
V.  Albert,  15  :Md.  268  (1S59)  ;  Herrick  v.  Belknap,  27  Vt.  673  (1854)  ;  Barton 
V.  Thompson,  56  Iowa  571,  9  N.  W.  890,  41  Am.  Rep.  119  (1881)  ;  Brown  v. 
Marion  Bank,  18  Ky.  L.  186,  35  S.  W.  926  (1896)  ;  Kelley  v.  Rhoads,  7  Wyo. 
237,  51  Pac.  593,  39  L.  R.  A.  504,  75  Am.  St.  904  (1897)  ;  State  v.  Clinton 
County,  162  Ind.  580,  68  N.  E.  295,  70  N.  E.  373  (1903)  ;  State  v.  Bell,  136  N. 
Car.  674,  49  S.  E.  163  (1904),  and  semble;  Hihhits  v.  Jack,  97  Ind.  570,  49 
Am.  Rep.  478  (1884)  ;  Burlington  R.  Co.  v.  Dey,  89  Iowa  13,  56  N.  W.  267 
(1893)  ;  Bradley  v.  N orris,  67  Minn.  48,  69  N.  W.  624  (1896) ;  McMaster  v. 
Dyer,  44  W.  Va.  644,  29  S.  E.  1016  (1S98)  ;  State  v.  Savage,  64  Nebr.  684, 
go  N.  W.  898,  91  N.  W.  557  (1902).  So  also,  a  party  who  accepts  the  decision 
of  an  intermediate  appellate  court,  makes  the  decision  the  law  of  the  case 
notwithstanding  a  subsequent  conflicting  decision  of  the  court  of  last  resort. 
Ogle  V.  Turpin,  8  111.  App.  453  (18S1)  ;  District  of  Columbia  v.  Brezver,  32 
App.  D.  C.  388  (1909);  Campbell  v.  Perth  Amboy  Mut.  Loan  Homestead 
Assn.,  76  X.  J.  Eq.  347,  74  Atl.  144  (1909)  ;  M£fc2£Z:;^£.^^^'^*-242_Ea^6a  88 
Atl.  915  (1913).  Contra:  Thompson  v.  Irzvin,  76  Mo.  App.  418  (1898); 
Wolf  V.  Dxi-elling  House  Ins.  Co.,  86  Mo.  App.  580  (1900),  But  where  a  case 
is  tried  and  then  retried  by  order  of  a  subordinate  court,  while  the  subordi- 
nate court  may  be  limited  by  its  original  decision,  the  highest  court,  when  the 
case  reaches  it,  is  not  so  limited.  Messingcr  v.  Anderson,  225  U.  S.  436,  56 
L.  ed.  1152  (1911),  reversing  171  Fed.  785;  Sidcnbach  v.  Riley,  in  N.  Y.  560, 
19  N.  E.  275  (1888)  ;  Panama  R.  Co.  v.  Napier  S.  Co.,  166  U.  S.  280,  41  L-  cd. 
1004  (1896)  ;  Brown  v.  Tourtelotte,  24  Colo.  204,  50  Pac.  195  (1897)  ;  Paddock 
V.  Mo.  Pac.  R.  Co.,  155  Mo.  524,  56  S.  W.  453  (1899)  ;  United  States  v.  Denver 
&c.  R.  Co.,  191  U.  S.  84,  48  L.  ed.  106  (1903). 


JErFRY   V.    WOOD  90/ 

SECTION  8.    JUDGMENT 

JEFFRY   V.    WOOD 

In  the  King's  Bench,  1720 

I  Sfr.  439 

The  plaintiff  in  error  assigned  errors  in  law,  and  in  fact ;  and 
on  demurrer  for  duplicity  the  question  was,  what  judgment  should 
the  court  give ;  and  after  consideration  they  ordered  an  entry  quod 
affirmetur,-^  according  to  Yelv.  58. 


BANK  OF  THE  COMMONWEALTH  OF  KY.  v.  ASHLEY 

Supreme  Court  of  the  United  States,  1829 

2  Pcf.  (U.  S.)  327 

Error  to  the  Circuit  Court  of  Kentucky. 

This  action  was  in  all  respects  similar  to  that  of  the  President, 
Directors  and  Company  of  the  Bank  of  the  Commonwealth  of  Ken- 
tucky V.  IVister,  Price  and  Wister,^^  with  the  exception  only,  that  it 
was  founded  on  the  notes  of  the  bank  payable  to  bearer,  and  usually 


''The  common  judgment  for  the  defendant  in  error  is  that  the  judgment 
be  affirmed.  Y.  B.  21  Edw.  IV  44;  Roll.  Abr.  805;  Bac.  Abr.  Error  (m)  2. 
"But  when  the  defendant  has  pleaded  a  release  of  errors  or  the  Statute  of 
Limitations,  and  it  is  found  for  him,  the  judgment  is  that  the  plaintiff  be 
barred  of  his  writ  of  error,  and  not  quod  afiirmetur."  i  Arch.  Pr.  (7th  ed.) 
376;  Dent  V.  Lingood,  i  Str.  683  (1725)  ;  Street  v.  Hopkinson,  2  Str.  1055 
(1736).  Compare  Kcrle  v.  Clifton,  3  Salk.  214  (1689)  ;  Cunningham  v.  Hous- 
ton, I  Str.  127  (1719),  where  the  judgment  was  "nil  capiat  per  breve." 

In  State  v.  Kriig,  94  Ind.  366  (1883),  it  is  said:  "An  appeal  to  the 
Supreme  Court  does  not  affect  the  binding  force  of  a  judgment  until  it  is 
reversed.  It  vras  said  in  Nill  v.  Comparct,  16  Ind.  107,  79  Am.  Dec.  411,  that 
'the  only  effect  of  an  appeal  to  a  court  of  error,  when  perfected,  is  to  stay- 
execution  upon  the  judgment  from  which  it  is  taken.  In  all  other  respects, 
the  judgment  until  annulled  or  reversed,  stands  binding  upon  the  parties,  as 
to  every  question  directly  decided.'  If  an  aopeal  does  not  destroy  the  binding 
force  of  a  judgment,  then  certainly  the  affirmance  of  the  judgment  can  not 
have  that  effect.  A  general  judgment  in  the  trial  court  decides  all  the  issues  in 
favor  of  the  successful  party.  The  affirmance  of  the  judgment  on  appeal, 
without  reference  to  the  ground  upon  which  it  is  placed,  leaves  it  in  full  force 
precisely  as  though  no  appeal  had  been  taken."  Accord :  Finch  v.  Hollinger, 
46  Iowa  216  (1877)  ;  Prescott  v.  Barnes,  51  Iowa  409,  i  N.  W.  660  (1879)  ; 
Steinhach  v.  Stewart,  ii  Wall.  (U.  S.)  566,  20  L.  ed.  56  (1870).  See  also, 
Chickering  V.  Failes,  29  111.  294  (1862)  ;  IVerhorn  v.  Pinney,  76  Ala.  201 
(1884)  ;  Aldrich  v.  Maher,  153  111.  App.  413  (1910)  ;  Freeman  v.  Young,  136 
Ga.  754,  72  S.  E.  41  (1911)  ;  Plunk ctt  v.  Hamnett,  51  Pa.  Super.  Ct.  98 
(1912)  ;  In  re  Cidver's  Estate,  159  Iowa  679,  140  JNl.  W.  878  0913)-  ' 

"2  Pet.  (U.  S.)  318  (1829). 


9C>8  AITKAI.    AND    F.RROR 

denominated  bank  notes.  The  declaration  contained  counts  in  debt 
on  simple  contract,  averring  that  the  plaintiffs  in  the  case  were  the 
holders  of  the  notes,  and  that  they  became  their  property  by  deliv- 
ery, and  that  i^aymcnt  had  been  demanded  and  liad  been  refused. 
The  defendants  entered  the  same  plea  as  in  the  case  referred  to, 
which  was  adjudged  against  them,  and  a  trial  was  had  and  a  verdict 
and  judgment  rentlered  for  the  jilaintiff  below  for  the  whole  debt, 
with  damages  for  the  detention  from  the  commencement  of  the  suit. 

The  bill  of  exceptions  presented  the  same  points  to  tlie  court  as 
in  the  former  case,  and  the  only  question  which  was  argued  before 
this  court  was  upon  the  effect  of  an  omission  to  describe  one  of  the 
sixty-eight  bank  notes  in  the  declaration,  the  verdict  and  judgment 
having  been  given  for  a  sum  including  the  note,  as  if  the  same  had 
been  so  described. 

The  counsel  for  the  defendants  in  error,  Mr.  Caswell,  stated 
that  a  remittitur  would  be  entered  for  the  amount  of  the  note  which 
had  not  been  set  out  in  the  declaration,  if  this  court  would  permit 
the  same.  The  debet  and  detinet  in  the  declaration,  stated  correctly 
the  amount  of  the  plaintiff's  claim,  and  the  verdict  and  judgment 
were  in  conformity  therewith. 

]\Ir.  Nicholas,  for  the  plaintiff  in  error,  replied  that  this  court 
can  not  amend  the  declaration,  and  that  the  plaintiffs  have  a  right  to 
avail  themselves  of  the  error.  Amendments  may  be  made  in  the 
courts  from  which  the  case  is  brought,  while  the  record  is  in  the 
possession  of  those  courts ;  but  this  writ  of  error  has  brought  up  the 
whole  record,  and  the  power  to  amend  in  the  circuit  court  no  longer 
exists. 

JoHXSON,  J.:  This  was  an  action  of  debt  instituted  upon  tlie 
bank  notes  of  the  Commonwealth  Bank,  in  which  the  defendants 
have  recovered  judgment  for  six  thousand  three  hundred  and  fifty 
dollars,  with  interest.  The  bank  filed  the  same  plea  to  the  jurisdic- 
tion of  the  court  below,  as  was  filed  in  the  case  of  Wister,  Price  and 
W'ister.  The  decision  therefore  delivered  in  that  case,  renders  it 
unnecessary  to  remark  upon  this  part  of  the  present  cause.  No 
other  plea  having  been  filed,  judgment  went  by  default  for  the  sum 
claimed  by  the  writ.  But  upon  examining  the  declaration  which 
purports  to  count  severally  upon  sixty-eight  bills,  it  appears  that 
one  of  the  sixty-eight  has  been  omitted.  Of  consequence,  the  dec- 
laration makes  out  a  less  sum,  and  one  debt  less  in  number  than  the 
writ  claims  or  the  judgment  gives.  This  is  error;  but  the  plaintiffs 
now  move  for  leave  to  cure  it,  by  entering  a  remittitur  of  the  debt 
so  omitted,  and  damages  pro  tanto.  And  this  court  has  taken  time 
to  consider  the  motion. 

That  the  party  would  have  had  a  right  to  remit  in  the  court  be- 
low can  not  be  questioned  ;  it  is  every  day's  practice,  sustained  by  the 
gravest  precedents.  And  the  right  extends,  not  only  to  the  amount 
of  damages,  but  to  several  causes  of  action,  distinct  debts,  distinct 
acres  of  land,  and  distinct  pleas.  Cro.  Jac.  146;  Hob.  178;  Raym. 
395 ;  3  D.  &  E.  659.  And  the  right  is  recognized  as  existing  after 
error  brought,  and  while  the  cause  is  depending  in  the  court  above. 


BANK    &C.    KENTUCKY   V.    ASHLEY  909 

and  the  court  of  error  will  suspend  its  judgment  to  give  time  for 
the  defendant  in  error  to  amend  in  tlie  court  below.  3  D.  &  E.  349, 
659,  749>  etc. 

But  the  difficulty  consists  in  this,  that  the  writ  of  error  here 
does  not  bring  up  the  original  record,  but  only  a  transcript,  as  in 
the  case  of  error  to  the  House  of  Lords.  In  error  to  the  King's 
Bench,  that  court  will  permit  a  remittitur,  because  it  gets  possession 
of  the  record  (3  D.  &  E.  349)  ;  but  in  error  to  the  house  of  lords 
it  is  otherwise,  and  the  entry  must  be  made  below  for  the  reason 
assigned.  3  D.  &  E.  659.  After  such  amendment  made  in  our  cir- 
cuit courts,  the  party  would  have  to  avail  himself  of  it  by  suggest- 
ing diminution,  and  bringing  up  tlie  amended  record  by  certiorari. 

This  court,  therefore,  thinks  itself  authorized  to  make  a  prece- 
dent in  furtherance  of  justice,  whereby  a  more  convenient  practice 
shall  be  introduced;  and  to  allow  the  party  to  enter  his  remittitur 
here ;  but  on  payment  of  the  costs,  if  the  writ  of  error  is  prosecuted 
no  farther  after  such  amendment  made.  Such  seems  to  be  the  rule 
in  the  British  courts  (Barnes,  17),  and  we  think  it  reasonable.  The 
defendant  here  will  be  permitted  to  enter  the  remittitur,  and  upon 
such  entry  the  judgment  will  be  affirmed,  without  costs  in  error. '^ 


-^Accord:  Pick-wood  v.  Wright,  I  H.  BI.  642  (1791)  ;  Fury  v.  Stone,  2 
Dall.  184  (1792)  ;  Hardy  V.  Cathcart,  i  Marshall  180  (1814)  ;  Usher  v.  Daiisev, 
4  M.  &  S.  94  (1815)  ;  Herbert  v.  Hardenhergh,  10  N.  J.  L.  222  (1828)  ;  Clark 
V.  Pritchett,  5  Harr.  (Del.)  283  (1850);  Graham  v.  Keys^2Q  Pa.  ^t.  j8p 
(1857)  ;  McKinley  v.  Bcaslcy,  5  Sneed  (Tenn.)  170  (1857)  ;  Doty  v.  Rigour, 
9  Ohio  St.  526  (1859)  ;  De  Costa  v.  Flat  Water  Mining  Co.,  17  Cal.  613  (1861)  ; 
Ward  V.  Haws,  5  Minn.  440  (1861)  ;  Sears  v.  Conover,  142  N.  Y.  (3  Keyes) 
113,  4  Abb.  Dec.  179,  2>3  How.  Pr.  (N.  Y.)  324  (1866)  ;  Machey  v.  Olssen, 
12  Ore.  429,  8  Pac.  357  (1SS5);  Emerson  v.  Schoonmaker.  i.^;  Pa.  St.  4^7, 
19  Atl.  1025  (1890)  ;  Hansen  v.  Boyd,  161  U.  S.  397,  40  L.  ed.  746  (1895), 
but  the  order  was  to  file  the  remittitur  in  the  circuit  court  and  produce  and 
file  a  certified  copy  thereof  in  the  Supreme  Court;  Farrell  v.  Manhattan  R. 
Co.,  43  App.  Div.  143,  59  N.  Y.  S.  401,  30  Civ.  Pro.  R.  118  (1899)  ;  Carbcrry 
V.  Farns-worth,  177  Mass.  398,  59  N.  E.  61  (1901)  ;  Thornton  v.  Rhode  Island 
R.  Co.^  (R.^  I.),  67  Atl.  452  (1906)  ;  Smith  v.  Hoctor,  107  N.  Y.  S.  33  (1907)  ; 
Ludzi'ig  P\ano  Co.  v.  Browne,  33  Pa.  Super.  Ct.  81  (1907),  remittitur' filed 
below ;  Scliwitters  v.  Springer,  236  ill.  271,  86  N.  E.  102  (1908)  ;  Weinert  v. 
Merchants'  S.  W.  Co.,  127  App.  Div.  826,  112  N.  Y.  S.  123  (1908)  ;  Skow  v. 
Green  Bay  &  W.  R.  Co.,  141  Wis.  21,  123  N.  W.  138  (1909)  ;  Moore  v.  St. 
Louis  Tr.  Co.,  226  Mo.  689,  126  S.  W.  1013  (1909)  ;  East  St.  Louis  &  St. 
Louis  Exp.  Co.  v.  ///.  Trac.  Co.,  169  111.  App.  24  (1911)  ;  Ostcrling  v.  Carpen- 
ter 2y)  Pa.  t:;^.  70  Atl.  405  (1911)  ;  Ellison  v.  GreetiviW S.  &  A.  R.  Co., 
94  S.  Car.  425,  77  S.  E.  722,,  78  S.  E.  231  (1913)  ;  Kretzinger  v.  Lewis,  174  111. 
App.  43  (1912)  ;  Stepan  v.  Svoboda,  178  111.  App.  227  (1913)  ;  Simoneau  v. 
Pacific  E.  R.  Co.,  166  Cal.  264,  136  Pac.  544  (1913)  ;  Van  Deenburg  v.  Scott, 
158  App.  Div.  87,  143  N.  Y.  S.  310  (1013)  ;  St.  Louis  &  S.  F.  R.  Co.  v.  Goode, 
42  Okla.  784,  142  Pac.  1185  (1914)  ;  Gibbons  v.  Rhode  Island,  37  R.  I.  89,  91 
Atl.  9  (1914).  Otherwise  where  the  appellate  court  can  not  ascertain  the 
extent  to  which  the  error  was  prejudicial.  Swearingen  V.  Pendleton.  4  Sersr. 
&  R.  (Pa.)  389  (1818);  Sceman  v.  Feeney,  19  Miiin.  79  (1872)  ;  Orange  & 
A.  K.  Co.  V.  Fidvey,  17  Grat.  (Va.)  366  (1867)  ;  Williams  v.  Durst,  y-,  Tex. 
421  (1871)  ;  Thompson  v.  Lnmley,  7  Daly  (N.  Y.)  74  (1877)  ;  Dillard  v^Elling- 
ton,  62  Ga.  389  (1879)  ;  Pavev  v.  American  Ins.  Co.,  56  Wis.  221,  13  N  W. 
925  (1882)  ;  McNail  v.  Welch,  21  111.  App.  378  (iSS6^  ;  St.  Louis  I.  M.  &  S. 
R.  Co:  V.  Waren,  65  Ark.  619,  48  S.  W.  222  (1898)  ;  Noel  Const.  Co.  v. 
Armored  Con.  Co.,  120  Md.  237,  87  Atl.  1049,  Ann.  Cns.  1915A,  i032n  (1913)  ; 
Midland  V.  R.  Co.  v.  Scoville,  109  Ark.  29,  158  S.  W.  954  (1913).    Contra: 


9:0  APPEAL   AND    r.RROR 

This  cnnsc  came  on  lo  l)e  hoard  on  a  transcript  of  the  record 
from  the  Circuit  Court  of  the  United  States  for  the  district  of  Ken- 
tucky, and  it  "was  argued  by  counsel.  On  consideration  whereof,  it 
appearing  to  this  court  that  the  judgment  of  the  said  circuit  court 
is  for  a  larger  sum  than  that  claimed  and  counted  upon  in  the  dec- 
laration in  said  cause  in  said  court,  tlie  said  defendants  in  error  filed 
here  in  open  court  a  remittitur  in  the  following  words,  to  wit: 

"Supreme  Court  of  the  United  States  of  January  term,  in  the 
year  of  our  Lord  eighteen  lumdrcd  and  twenty-nine.  Be  it  remem- 
bered, that  on  the  trial  of  this  cause  before  the  Supreme  Court  of 
the  United  States  on  a  writ  of  error  to  the  Circuit  Court  of  the 
United  States,  for  the  district  of  Kentucky,  on  the  fourteenth  day  of 
February,  in  the  year  aforesaid,  it  appeared  that  one  of  the  sixty- 
eight  bills  upon  which  the  declaration  purported  to  count  severally, 
to  wit,  a  bill  for  the  amount  of  fifty  dollars,  had  been  omitted  in  said 
declaration ;  the  declaration  making  out  a  less  sum,  and  one  debt  less 
in  number,  than  the  w^rit  claimed  or  the  judgment  gave.  And  here- 
upon the  said  John  Ashley  and  John  Ella,  Junior,  defendants  in 
error,  by  Daniel  J.  Caswell,  their  attorney  and  counsel  in  this  court, 
freely  here  in  court  remit  to  tlie  said  president  and  directors  of  the 
Bank  of  the  Commonwealth  of  Kentucky,  plaintiffs  in  error  as  afore- 
said in  this  cause,  as  V\^ell  the  said  debt  of  fifty  dollars  so  omitted  as 
aforesaid,  the  residue  of  the  debt  aforesaid,  together  with  interest  on 
the  said  fifty  dollars  at  the  rate  of  six  per  centum  per  annum,  from 
the  twenty-second  day  of  September,  in  the  year  of  our  Lord 
eighteen  hundred  and  twenty-five,  as  also  damages  pro  tanto.  As 
witness  our  hands  this  fourteenth  day  of  February,  in  the  year  of 
our  Lord  eighteen  hundred  and  twenty-nine.  John  Ashley  and 
John  Ella,  Junior,  by  Daniel  J.  Caswell,  their  attorney  and  counsel 
in  this  court." 

Whereupon  it  is  considered,  ordered,  and  adjudged  by  this 
court,  that  the  judgment  of  the  said  circuit  court  in  this  cause  be, 

Wray  v.  Lister,  2  Str.  1 1 10  (1738)  ;  Cheveley  v.  Morris,  2  Wm,  Bl._  1300 
(1-70)  ;  Hutchinson  v.  Crosscn,  10  Mass.  252  (1813)  ;  Greenleaf  v.  Hill,  30 
Maine  165  (1849)  ;  Frank  v.  Morrison,  55  Md.  399  (1880). 

Verj^  generally,  todaj^  an  appellate  court  having  all  the  facts  before  it  on 
the  record  may,  in  the  interests  of  justice,  modify  a  judgment  without  revers- 
ing- it  if  no  injustice  is  done  thereby  to  either  partv.  Dunbar  v.  Hitchcock, 
3  M.  &  S.  =;9i  (1815)  ;  Sj^ckmnn  y.  Bvers.  6  Scrg.  &  R.  (Pa.)  385  (1821)  ; 
Herbert  V.  ^Hnrdcnhernh.  10  N.  T.  L.  222  (1828)  :  Haas  \\Ez'ans,  S  Watts  & 
S.  (Pa.)  252  (1843);  Con-jjcll  V.  Clay  pool,  8  Blackf.  (Ind.)  124  (ia4o); 
Cnmwn'.iivealth  V.  Haffev,  6  Pa.  St.  3^8  (1847);  Anna  Tryon  V.  Sutton,  13 
Cal.  490  (i8s9)  ;  Browncllv.  Winnie,  29  N.  Y.  400,  29  How.  Pr.  (N.  Y.)  193, 
86  Am.  Dec.  314  (1864)  ;  Milly  v.  Harrison,  7  Coldw.  (Tenn.)  191  (1869); 
Lehigh  V.  R.  Co.  v.  McFarland,  44  N.  J.  L.  674  (1882)  ;  Hayes  v.  Pratt, 
id7  tl.  S.  557,  37  L.  ed.  279  (1892)  ;  Terry  v.  Wendcroth.  I47  Pa.  St.  KIQ. 
23  Atl.  763  (1892)  ;  Curran  v.  Burgess,  155  Mass.  86,  28  N.  E.  1135  (1891)  ; 
Commomveahh  v.  Phila  Cn  i-y  Pn  St.  ^^t.  27  Atl.  378  (1893)  ;  Burnhamv. 
Dtlinn,  TOO  Mich.  359,  59  N.  W.  643  (1894);  Reynolds  v.  Aetna  L.  L  Co., 
160  N.  Y.  63^.  55  N.  E.  305  (1899)  ;  Jones  v.  Jones,  141  Ga.  727,  82  S.  E.  451 
(1914);  National  Council,  &c.  v.  Sealey  (Tex.  Civ.  App.),  162  S.  W.  455 
(1914). 


LOOMIS    •;:'.    LEHIGH    VAL.    R.    CO.  9II 

and  the  same  is  hereby  affirmed,  without  costs,  deducting  from  the 
said  judgment  of  the  said  circuit  court,  the  amount  so  deducted  as 
aforesaid. 


LOOMIS  V.    LEHIGH  VALLEY  R.  CO. 

Court  of  Appeals  of  New  York,  19 13 

208  A^.  Y.  312 

The  plaintiffs,  who  were  dealers  in  produce  shipped  over  the 
defendant's  lines,  both  within  and  without  the  state  of  New  York, 
brought  this  action  to  recover  $322,  expended  by  them  in  construct- 
ing grain  doors  and  bulkheads  in  defendant's  freight  cars,  which, 
they  contended,  should  have  been  furnished  by  the  defendant.  From 
a  verdict  and  judgment  for  plaintiffs  the  defendant  appealed.  The 
Court  of  Appeals  found  that  as  to  intrastate  shipments  the  defendant 
was  liable,  as  there  was  a  common-lav/  duty  to  equip  its  cars  for  the 
service  for  which  they  were  intended,  but  that  the  state  courts  had 
no  jurisdiction  over  interstate  shipments,  because  that  subject  had 
passed  exclusively  under  the  jurisdiction  of  the  federal  courts  by 
virtue  of  the  Interstate  Commerce  Act.  The  question  then  was, 
should  the  judgment  be  modified  or  reversed ?^^ 

Werner,  J. :  We  have  yet  to  consider  whether  we  can  divide 
the  single  judgment  recovered  by  the  plaintiffs,  so  as  to  sustain  that 
part  predicated  upon  the  intrastate  shipments,  and  to  disallow  for 
lack  of  jurisdiction  that  part  which  rests  upon  the  interstate  ship- 
ments. The  general  rule  in  actions  at  law  is  that  upon  appeal  from 
a  single  judgment  the  appellate  court  must  affirm  or  reverse  as  to 
the  whole  of  the  recovery  and  as  to  all  the  parties.^''    Goodsell  v. 


'"The  statement  of  facts  is  condensed  and  only  so  much  of  the  opinion 
given  as  relates  to  the  judgment  on  appeal. 

"Accord:  Bac.  Abr.,  Error  (m)  ;  Loyd  v.  Pearse,  Cro.  Jac.  424  (1611)  ; 
Williams  V.  Cutting,  2  Ld.  Raj^m.  825  (1702)  ;  Cuming  v.  Sihly,  4  Burr.  2489, 
I  Term  Rep.  239  (1769)  ;  Riggs  v.  Tyson,  i  N.  J.  L.  34  (1790)  ;  Jackson  v. 
Cqm.m.nmtj^n.lth.  -2  Binn.  (V7\\  79  (1809)  ;  Richards  V.  Walton,  T2~JohtT5. 
(N.  Y.)  434  (1815)  ;  Swearingcn  v.  Pendleton,  4  Serg.  &  R.  (Pa.)  389  (1818)  ; 
Gaylord  v.  Payne,  4  Conn.  190  (,1822;  ;  Hums  v.  J'oliiUon,  i  J."  J.  Marsh.  (Ky.) 
196  (1829)  ;  Herd  v.  Dew,  8  Humph.  (Tenn.)  501  (1847)  ;  Murray  v.  Em- 
vions,  26  N.  H.  523  (i8s3)  ',  Wolstenholme  v.  Wolstcnholme  File  Mfg.  Co., 
64  N.  Y.  272  (1876)  ;  Rollins  v.  Fisher,  17  W.  Va.  578  (1880)  ;  Little  R.  R.  Co. 
V.  Perry,  37  Ark.  164  (1881)  ;  Mutual  Loan  &  B.  Assn.  v.  Price,  i()  Fla.  127 
(1882)  ;  Ala.  R.  Co.  v.  McAlpine,  80  Ala.  73  (1885)  ;  Bond  v.  Wabash  R.  Co., 
67  Iowa  712,  25  N.  W.  892  (1885)  ;  Webster-Glover  Lumber  &c.  Co.  v.  St. 
Croix,  71  Wis.  317,  36  N.  W.  864  (1888)  ;  Goodsell  v.  Western  Union  Tele- 
graph Co.,  109  N.  Y.  147,  16  N.  E.  324  (1888)  ;  Beam  v.  Jennings,  96  N.  Car. 
82,  2  S.  E.  245  (1887)  ;  Moses  v.  Grainger,  106  Tenn.  i,  58  S.  W.  1067,  53 
L.  R.  A.  857  (1900)  ;  Newbold  v.  Douglas,  123  Wis.  28,  100  N.  W.  1040  (1904)  ; 
Hunter  S.  P.  Co.  v.  Hunter,  lOO  App.  Div.  191,  91  N.  Y.  S.  620  (1905)  ; 
Powers  V.  World's  Fair  Mining  Co.,  10  Ariz.  5,  86  Pac.  15  (1906)  ;  Chicago 
City  R.  Co.  V.  Schaefer,  121  111.  App.  334  (1905)  ;  Glos  v.  Greiner,  226  111.  546, 
80  N.  E.  1055  (1907)  ;  Adams  v.  Carter,  92  Miss.  579,  47  So.  409  (1908)  ; 
hmanuel  v.  Walter,  138  App.  Div.  818,  123  N.  Y.  S.  491  (1910)  ;  Borough 
Const.  Co.  V.  New  York,  200  N.  Y.  149,  93  N.  E.  480  (1910)  ;  Money  v. 
Dennison,  no  Ark.  571,  163  S.  W.  783  (1914). 


yij  Arrr.AL  Axn  i:kror 

ll'cstcni  Union  Tel  Co.,  109  N.  Y.  14;;  Wolstcnhohnc  v.  Wolsten- 
holme  Filr  Mfg.  Co..  64  N.  Y.  272;  Nat.  Bd.  of  Marine  Underwrit- 
ters  V.  Xat.  Ihinh  of  (lie<  Kepuhlie,  146  N.  Y.  64.  The  reason  of  the 
lule  is  that  it  would  produce  endless  confusion  and  embarrassment 
in  the  administration  of  justice  to  permit  single  causes  of  action  and 
iudgmcnts  to  he  split  up  so  that  dillcrcnt  parts  thereof  could  be  in 
litigation  in  dilTcrent  courts  at  the  same  time.  We  do  not  think  this 
case  is  ^vithin  the  reason  of  the  rule.  Although  there  is  no  separa- 
tion of  causes  of  action,  either  in  the  complaint  or  in  the  judgment, 
there  are  manifestly  two  such  causes  if  we  are  right  in  holding  that 
there  is  a  distinction  between  intrastate  shipments  and  interstate 
shipments.  They  are  easily  separable.  The  result  of  our  decision  is 
that  the  plaintiffs  are  entitled  to  recover  upon  one  and  not  upon  tlie 
other.  In  these  circumstances  it  is  l)Oth  logical  and  just  to  make  an 
end  to  the  litigation  by  directing  that  the  judgment  shall  be_ reduced 
to  $64.45,  and  as  thus'modified  affirmed,  without  costs  of  this  appeal 
to  either  party. -^ 

Judgment  accordingly. 


CROW  V.  WILLIAMS 
Court  of  Appeals  of  Missouri,  St.  Louis,  1904 

104  Mo.  App.  451 

Reyburn,  J.:  This,  an  action  of  forcible  entry  and  detainer, 
was  begun  February,  1903,  before  a  justice  of  the  peace  in  Newton 
County,  and  from  jury  trial  and  judgment  in  favor  of  complain- 
ants, defendants  appealed  to  the  circuit  court,  where,  upon  trial 
anew,  a  jury  returned  a  verdict  of  guilty  against  all  the  defendants 
with  damages  assessed  at  $90;  the  complaint  appears  to  have  been 
devoid  of  claim  for  any  rents  or  profits.  After  unsuccessful  motions 
for  new  trial  and  in  arrest,  defendants  have  appealed  to  this  court.-^ 

-'Accord-  Rcymcr  v.  Gnmstone,  Moore  708  (i595)  ;  Grymston  v.  Rcyncr, 
Cro  Eliz.  537;  Miles  v.  Jacob,  Hob.  6  (Temp.  Jac.  I);  Bcllew  v.  Aylmer, 
1  Str  i8q  (1718);  Henriqucs  v.  Dutch  West-India  Co.,  2  Str.  807  (1729); 
Kent  v  Kent,  2  Str.  971  (1733);  Frederick  v.  Lookup,  4  Burr.  2018,  2021 
(1767)  ;  Wood  V.  Talhnan,  I  N.  J.  L.  177  (i793)  ;  Smith  v.  Jansen,  8  Johns. 
(X.  Y)  III  (1811);  Dcfarges  v.  Lipscomb,  2  Munf.  (Va.)  451  (iSn)  ; 
Cummings  V.  Pruden,  II  Mass.  206  (1814)  ;  Commonvjealth  v.  Derby,  13  Mass. 
433  (1816)  ;  culler  v.  Kecnc.  q  Watts  (Pa.)  348  (1S36)  ;  Scterwhite  v.  Carson, 
25  X  Car.  549  (1843)  ;  Eames  v.  Stevens,  26  X.  H.  117  (1852)  ;  Jeter  v.  Jeter, 
36  Ala  391  (i860)  ;  Pratt  v.  Wallbridge,  16  Ind.  147  (1861)  ;  Selleck  v.  Rusco, 
46  Conn.  370  (1878)  ;  Schuster  v.  Bauman  J.  Co.,  79  Tex.  179,  15  S.  W.  259, 
23  Am  St  327  (1890)  ;  Domestic  B.  Assn.  v.  Kelson,  172  111.  386,  50  X.  L.  194 
(1S98)  ;  rT^fr-  V.  Stc-vart.  ^2  Pa.  Super.  Ct.  ^8=;  (1907)  ;  Robinson  v.  Minr, 
151  Cal  7T5r90  Pac.  521  (1907)  ;  Gray  v.  Raikcay  Co.,  81  S.  Car.  370,  62  S.  t. 
442  (1908)  ;  People  v.  Banhagel,  151  Mich.  40,  114  N.  W.  669  (1908)  ;  Emmons 
V  Hau.'k,  62  W.  Va.  526,  59  S.  E.  519  (1908)  ;  Au.^tin  v.  Langlois,  83  \t.  104, 
74  Atl.  489  (1909);  Gray  v.  Cotton,  166  Cal.  130,  134  Pac.  1145  (1913)  ; 
Camden  v.  McAndrews,  8'-,  X.  J.  L.  260,  88  Atl.  1034  (1913)  ;  Ainvarter  v. 
Kroll,  79  Wash.  179,  140  Pac.  326  (1914)  ;  Seevers  v.  Cleveland  Coal  Co., 
166  lov.a  284,  147  ^>'-  W.  761  (1914)- 

'^The  argument  of  counsel  and  part  of  the  opinion  arc  omitted. 


CROW    V.    WILLIAMS 


91; 


The  judgment  rendered  is  assailed  as  embracing,  additional  to 
decree  of  restitution  of  the  lands,  described  in  the  complaint,  a  gen- 
eral judgment  for  the  amount  of  damages  assessed  by  the  jury, 
doubled  and  made  a  general  judgment  as  well  as  against  all  the  de- 
fendants and  also  their  two  sureties  on  the  appeal  bond  filed  in  per- 
fecting appeal  to  the  circuit  court.  In  the  absence  of  statutory 
authority  a  summary  judgment  against  sureties  as  well  as  principals 
on  the  appeal  bond  in  an  action  of  this  character  can  not  be  main- 
tained. Hadley  v.  Bernero,  97  Mo.  App,  314;  Julett  v.  Nugent,  71 
Mo.  131 ;  Keary  v.  Baker,  33  Mo.  603.  Nor  is  there  any  evidence 
warranting  a  judgment  against  Williams,  the  owner  and  lessor  of 
all  parties;  the  record  is  barren  of  any  evidence  tending  to  connect 
him  with  the  acts  of  his  codefendants,  either  in  dispossession  of 
complainants  or  in  usurping  possession,  and  the  judgm.ent  was  also 
erroneous  as  to  him.  Orrick  v.  Public  School,  32  Mo.  315.  The  rule 
of  law  that  a  judgment  in  an  action  at  law  was  an  entirety  and  that 
if  it  was  vacated  as  to  one  must  be  annulled  as  to  all  the  parties  de- 
fendant against  whom  it  was  rendered,  v/as  adopted  by  numerous  of 
the  early  decisions  of  the  Supreme  Court.^°  This  rule,  however,  has 
been  relaxed  and  from  the  later  decisions  may  be  deduced  the  pres- 
ent doctrine  that  a  judgment  is  not  now  regarded  as  such  an  entirety 
as  to  prohibit  amendment  or  correction  by  reversal  as  to  one  or  more 
of  the  parties,  where  the  substantial  rights  of  the  other  parties 
thereto  will  not  be  thereby  impaired.  Neenam  v.  St.  Joseph,  126 
Mo.  89;  Hadley  v.  Bernero,  97  Mo.  App.  314;  Patterson  v.  Yancey, 
97  Mo.  App.  681 ;  Christopher  &  Simpson  Architectural  Iron  &c. 
Co.  V.  Kelly,  91  Mo.  App.  93. 

The  judgment  herein  is  therefore  affirmed  as  to  defendants 
Marion  F.  Brown  and  E.  R.  Hyatt,  and  reversed  as  to  defendant  L. 
F.  Williams  and  the  sureties  P.  L,  Schwartz  and  L.  H.  Ornduff.^^ 


'"Accord:  Roll.  Abr.  776;  Bac.  Abr.,  Error  (m)  ;  Bird  v.  Orms,  Cro.  Jac. 
289  (1611)  ;  King  v.  Marlborough,  Cro.  Jac.  303  (1612)  ;  Aylet  v.  Oates, 
Style  121,  125  (1648)  ;  Anon.,  Style  406  (1654)  ;  Arnold,  Duncan  &  Others 
V.  Sandford,  14  Johns.  (N.  Y.)  417  (1817)  ;  Criiikshank  v.  Gardner,  2  Hill 
(X-  Y.)  333  (1842);  Sheldon  v.  Quinlen,  5  Hill  (N.  Y.)  441  (1843);  Van 
Schoonhoven  v.  Comstock,  i  Denio  (N.  Y.)  655  (1845)  ;  Wilson  v.  Moore,  26 
N.  J.  L.  458  (1857)  ;  Dickerson  v.  Chrisman,  28  Mo.  134  (1859)  ;  Pomeroy  V. 
Betts,  31  Mo.  419  (1862)  ;  Buffum  v.  Ramsdell,  55  Maine  252,  92  Am.  Dec.  589 
(1867)  ;  Gargan  v.  School  Dist.  No.  15,  4  Colo.  53  (1877)  ;  Seymour  v.  O.  S. 
liichardson  Fueling  Co.,  205  111.  yj,  68  N.  E.  716  (1903)  ;  Kris  v.  Peege,  119 
Wis.  105,  95  N.  W.  108  (1903)  ;  Peterson  v.  Middlesex  Tr.  Co.,  yi  N.  J.  L.  296, 
59  Atl.  456  (1904)  ;  Massey  v.  Oates,  143  Ala.  248,  39  So.  142  (1904)  ;  North 
Chicago  Street  R.  Co.  v.  O'Donnell,  115  111.  App.  no  (1904)  ;  East  Baltimore 
Lumber  Co.  v.  Israel  Congregation,  100  Md.  689,  62  Atl.  575  (1905)  ;  Goldberg 
V.  Harney,  122  111.  App.  106  (1905)  ;  Peter  Vallev  v.  Illinois  Tunnel  Co.,  lyS 
111.  App.  388  (1913)  ;  Walters  v.  B.  &  O.  R.  Co.,  120  Md.  644,  88  Atl.  47 
(1913)  ;  Pressley  v.  Kinloch-Bloomington  Tel.  Co.,  184  111.  App.  113  (1913)  ; 
Ewing  v.  Rider,  125  Md.  149,  93  Atl.  409  (1915). 

"A  judgment  clearly  entire  must  be  affirmed  or  reversed  as  to  all.  But 
the  influence  of  modern  statutes  has  led  to  a  more  liberal  practice  in  revers- 
ing as  to  one  or  more  parties  and  affirming  as  to  the  rest,  where  the  error 
exists  as  to  a  separate  claim  or  defense  upon  which  a  decision  can  be  made 
without   injuriously  affecting  the  rights   of   others.    Jamieson  v.   Pomeroy, 

58— Civ.  Prog. 


914  ArrKAL   AND    ERROR 

ST.  JOHN  V.  ANDREWS  INSTITUTE 

Court  of  Arri:ALS  of  New  York,  190S 
192  A^.  Y.  382 

Alotion  to  amend  remittitur. ^- 

CuLLEX,  C.  J. :  The  question  i^rcsented  by  this  motion  is 
whether  certain  of  the  next  of  kin  of  the  testator  who  failed  to  ap- 
peal from  the  judgment  of  the  Supreme  Court,  which  declared  that 
they  had  no  right  to  any  part  of  the  estate  of  said  testator,  can,  take 
advantage  of  a  reversal  of  said  decree  by  this  court  made  upon  the 
appeal  of  certain  other  of  the  next  of  kin.^^ 

The  rule  is  stated  by  ]Mr.  Freeman  in  his  work  of  Judgments 
(vol.  2,  sec.  481)  :  "Where  a  judgment  is  against  two  or  more  per- 
sons, one  only  of  whom  appeals,  its  reversal,  if  the  judgment  was 
binding  upon  the  defendants  jointly,  or  if  all  must  co-operate  in 
complying  with  the  judgment,  affects  the  parties  who  did  not  appeal 
to  the  same  extent  as  those  who  did.  Pittsburg,  etc.,  Ry.  Co.  v. 
Reno,  123  111.  273.  But  if  a  defendant  does  not  appeal,  and  is  not 
made  a  party  to  the  appeal  by  the  service  on  him  of  notice  thereof, 
an  appeal  by  his  co-defendant,  followed  by  a  reversal  of  the  judg- 
ment, can  not  authorize  the  retrial  of  the  cause  as  against  the  non- 
appealing  defendant,  and  the  new  trial  must  be  confined  to  the  is- 
sues between  the  parties  to  the  appeal."  Minturn  v.  Baylis,  33  Cal. 
129,  134;  Nichols  V.  Dicnphy,  58  Cal.  605;  Little  v.  Superior  Court, 
74  Cal.  219;  Withers  v.  Jacks,  79  Cal.  297.^*  So  a  joint  judgment 
such  as  that  rendered  against  partners  or  against  joint  obligors  can 
not  be  affirmed  as  to  one  defendant  and  reversed  as  to  another,  but 


g  Pa.  230  (1848),  see  Pa.  Act  of  May  20,  1891,  _P.  L.  loi,  §  2,  1  P.  &  L.  Dig. 
(2d  ed.)  322;  McCanna  v.  Johnson.  10  Pa.  St.  434  (1852)  ;  Sppp  \.  ll'in±enny, 
6S_Ea— St.  78  (1871);  Kobinson  v.  Buck,  71  Pa.  St.  ,386_(  18721 1  Reugler  v. 
Lilly,  26  Ohio  St.  48  (1875)  ;  Cook  v.  Ligon,  54  Miss.  368  (1877)  ;  Sutton  v. 
McCoimcU,  46  Wis.  269,  50  N.  W.  414  (1879)  ;  Ailing  v.  Wcnacll,  35  111.  App. 
246  (1890),  equity;  Hamilton  V.  Prescott,  73  Tex.  565,  1 1  S.  W.  548  (1889)  ; 
Walker  v.  Tufpcr,i~,2  Pa.  St.  i.  2^  Atl.  172  (1892)  ;  Garr  v.  Shaffer,  139  Ind. 
191,  38  N.  E.  811  (1894)  ;  Vance  Shoe  Co.  v.  Haiight,  41  W.  Va.  275,  23  S.  E. 
553  (1895),  equity;  Louisville,  N.  A.  &  C.  R.  Co.  v.  Trcadzvay,  143  Ind.  689, 
40  N.  E.  807,  41  N.  E.  794  (1895)  ;  Western  Cornice  &  Mfg.  Co.  v.  Leaven- 
worth, 52  Nebr.  418,  72  N.  W.  592  (1897)  ;  Altman  v.  Hofeller,  152  N.  Y.  498, 
46  N.  E.  961  (1897)  ;  Missouri  K.  &  T.  R.  Co.  v.  Enos,  92  Tex.  577,  50  S.  W. 
928  (1899)  ;  Louisville-Southern  R.  Co.  v.  Tucker,  105  Ky.  402,  49  S.  W.  314, 
20  Kv.  L.  1303  (1899)  ;  Clark  v.  Torchiana,  19  Cal.  786,  127  Pac.  831  (1912)  ; 
Moe'rsdorf  v.  A^.  Y.  Telephone  Co.,  84  N.  J.  L.  747,  87  Atl.  473  (1913)  ; 
N.  J.  Practice  Act  of  1912;  Chicago  B.  &  M.  Co.  v.  Butler,  139  Ga.  816,  78 
S.  E.  244  (1913)  ;  Voves  v.  Great  Northern  Co.,  26  N.  Dak.  no,  143  N.  W. 
760  (1913)  ;  North  Alabama  Tr.  Co.  v.  Hays,  184  Ala.  592,  64  So.  39  (1913)  ; 
Kansas  C.  M.  R.  Co.  v.  Cave  (Tex.  Civ.  App.),  174  S.  W.  872  (1915)  ;  Brown 
V.  Sessler,  128  Tenn.  665,  163  S.  W.  812  (1914)-  See  also  note  to  Sparrow  v. 
Bromage,  83  Conn.  27,  74  Atl.  1070  (1910),  in  19  Ann.  Cas.  797. 

"Parts  only  of  the  opinion  of  the  court  and  of  the  dissenting  opinion  are 
printed. 

"Lambert  v.  Westchester  Electric  R.  Co.,  191  N.  Y.  252. 

*'But  compare  Tillett  v.  Lynchburg  &  D.  R.  Co.,  115  N.  Car.  662,  20  S.  E. 
480  (1894)  •  Hall  V.  Calhoun  Circuit  Judge,  123  Mich.  555,  82  N.  W.  229 
(1900}. 


ST.    JOHN    V.    ANDREWS   INSTITUTE  915 

must  be  reversed  in  its  entirety  except  so  far  as  the  rule  is  modified 
by  statute  (i  Black  on  Judgments,  section  211,  et  seq.),  and  this 
rule  is  applicable  to  a  judgment  in  equity  as  well  as  to  one  in  an  ac- 
tion at  law.  AlUnan  v.  Hofeller,  152  N.  Y.  498.  But  the  question 
remains,  and  this  is  the  only  substantial  question  in  the  case,  was  the 
judgment  rendered  by  the  special  term,  and  from  which  no  appeal 
was  taken  by  certain  of  the  defendants,  a  joint  judgment  or  a  several 
judgm.ent.  For  even  in  an  action  at  law  against  several  joint  tort 
feasors  the  liability  of  the  defendants  being  several,  though  in  form 
a  single  judgment  may  be  entered  against  them  all,  the  judgment 
may  be  reversed  on  appeal  as  to  one  defendant  and  affirmed  as  to 
the  other.  Hubhcll  v.  Meigs,  50  N.  Y.  480.  See  Mcintosh  v.  En- 
sign, 28  N.  Y.  169 ;  Bullis  v.  Montgomery,  50  N.  Y.  352."^ 

Up  to  this  point  I  understand  my  brother  Chase  and  myself  to 
be  in  accord.  Our  difference  is  whether  the  judgment  is  a  joint  or 
a  several  judgment.  Here  I  may  dispose  of  the  suggestion  that  the 
judgment  is  against  a  class.  There  is  no  authority  for  suing  a  class 
as  such  as  distinguished  from  the  individuals  composing  that  class, 
except  that  given  by  section  448  of  the  Code  of  Civil  Procedure, 
where  the  parties  of  a  class  are  too  numerous  to  render  it  practicable 
to  join  them  all  as  parties  to  the  action,  one  or  more  may  be  selected 
as  representing  the  class.  No  such  situation  existed  in  the  present 
case,  nor  was  there  any  attempt  to  sue  one  defendant  as  represent- 
ing the  others,  but  each  person  in  interest  was  made  a  party,  that  he 
rnight  defend  or  assert  his  rights  in  person  and  on  his  own  behalf. 
The  argument  of  my  brother  seems  to  proceed  on  the  theory  that 
because  the  issues  on  which  the  case  was  disposed  of  at  the  special 
terrn  were  common  to  all  the  defendants,  the  next  of  kin,  therefore, 
the  judgment  against  them  v/as  necessarily  joint.  I  think  the  ques- 
tion of  the  identity  of  issue  between  the  several  parties  has  no  nec- 
essary bearing  on  the  question  whether  the  judgment  is  joint  or  sev- 
eral. The  distinction  between  the  interest  in  a  question  and  interest 
in  a  particular  judgment  is  well  illustrated  by  tlie  rule  which  dis- 
qualifies judges  from  hearing  causes.  A  judge  can  not  sit  in  the  hear- 
ing of  an  appeal  from  a  judgment  in  an  action  in  which  he  is  inter- 
ested or  he  is  related  to  the  parties  within  the  specified  degree,  and 
the  judgment  rendered  by  a  court  in  which  such  disqualified  judge 
takes  part  is  a  nullity,  Oakley  v.  Aspimvall,  3  N.  Y.  547,  but  on 
the  other  hand,  interest  of  the  judge  in  the  question  involved  in  the 
case  has  no  effect  on  his  qualification  to  sit  and  determine  it.  People 
V.  Edmunds,  15  Barb.  (N.  Y.)  529.  Another  illustration  is  the  case 
of  a  judgment  against  two  tort  feasors.  The  issue  on  M'hich  the  par- 
ties have  been  held  liable  may  be  identical  and  the  ground  on  which 
the  judgment  has  been  reversed  may  be  as  fatal  to  the  recovery 


"Accord:  Nichols  v.  Dtmphy,  58  Cal.  605  (1881);  Union  Trust  Co.  v. 
Atchison,  T.  &  S.  F.  R.  Co.,  8  N.  Mex.  159,  42  Pac.  89  (1895)  ;  Schidis  v. 
United  States  Fidelity  Co.,  201  N.  Y.  230,  94  N.  E.  601  (1911).  Contra: 
Mohr  V.  McKenaie,  60  111.  App.  575  (1895)  ;  Massey  v.  Oates,  143  Ala.  248,  39 
So.  142  (1904)  ;  South  Side  E.  R.  Co.  v.  Ne'vig,  214  111.  463,  yz  N.  E  749 
(1905)  ;  Pecos  &  N.  T.  R.  Co.  v.  Holmes  (  x.  Civ.  App.),  177  S  W  505 
(1915). 


Ql6  ArPF.AT,    AND   KRRCR 

ajjainst  one  defendant  as  against  the  other,  yet,  as  already  staled,  a 
reversal  against  one  will  inure  in  no  respeet  against  the  other.    Such 
was  the  case  of  Gcraud  v.  Stagg,  lo  How.  I'r.  (N.  Y.)  369.    The 
action  was  for  libel  against  two  defendants.    From  a  judgment  in 
favor  of  the  plaintiff  only  one  defendant  ajipcalcd.    The  judgment 
was  reversed  on  the  ground  that  the  plaintiffs  own  evidence  did  not 
show  a  cause  of  action.  The  order  entered  by  the  general  term  of  the 
connnon  pleas  reversed  the  judgment  as  to  the  a])i)caling  defendant 
only.    A  motion  was  thereupon  made  to  amend  the  order  so  as  to 
reverse  the  entire  judgment.   The  motion  was  denied  in  an  opinion 
written  by  an  eminent  judge.  Woodruff,  afterwards  a  judge  of  this 
court.    AVhat  then  does  determine  the  question  whether  the  judg- 
ment in  this  action  was  joint  or  several?   Had  the  cause  been  deter- 
mined at  the  special  term  in  accordance  with  the  view  subsequently 
held  by  this  court  there  would  have  been  awarded  to  the  several  next 
of  kin' their  proportionate  shares  under  the  statute  of  distribution  of 
the  rents  and  profits  which  accumulated  between  the  death  of  the  de- 
ceased and  the  incorporation  of  the  defendant,  the  Andrews  Insti- 
tute, and  such  will  be  the  nature  of  the  judgment  entered  on  the 
remittitur  from  this  court.   The  interest  of  each  of  the  next  of  kin 
in  the  accumulated  rents  was  several,  belonging  solely  to  himself 
and  subject  at  all  times  to  assignment  by  him,  to  seizure  through  a 
court  of  equity  by  his  creditors.   The  interest  of  the  next  of  kin  in 
undisposed  of  personalty  in  no  w^ay  differs  from  the  interest  of  the 
heirs  at  law  in  undisposed  of  realty.   They  are  not  joint  tenants,  but 
tenants  in  common,  and  the  action  or  litigation  of  one  can  not  con- 
clude or  affect  the  rights  of  the  others.   In  the  share  of  each  of  the 
next  of  kin  the  others  had  no  interest.    Pelly  v.  Bowyer,  7  Bush 
(Ky.)   513.    Therefore,  the  judgment  against  the  interest  of  each 
was  several.    Had  such  judgment  in  the  first  instance  been  in  favor 
of  the  next  of  kin  and  the  Andrews  Institute  had  appealed  from  it, 
we  could  have  reversed  that  judgment  only  so  far  as  it  made  the  de- 
fendants parties  to  that  appeal.    McCammon  v.  Worrall,  11  Paige 
Ch.  (N.  Y.)  99;  Tate  v.  Liggat,  2  Leigh  (Va.)  84,  108;  Fasker  v. 
Small,  I  C.  P.  Cooper  225.    See  also.  South  Portland  Land  Co.  v. 
Munger,  30  Ore.  457;  Todd  v.  Daniel,  16  Pet.  (U.  S.)  521 ;  French 
v.  Pozvers,  177  ]\Iass.  568.   Had  it  seen  fit  to  serve  its  notice  of  ap- 
peal solely  on  the  four  defendants  who  have  appealed  to  this  court, 
the  court  could  not  have  reversed  the  judgment  of  the  special  term 
in  favor  of  the  two  defendants  who  were  not  made  parties  to  the 
appeal.   I  am  at  a  loss  to  see  why  the  principle  must  not  necessarily 
be  the  same  in  both  cases.    The  great  stumbling  block  in  this  case 
seems  to  be  the  apparent,  if  not  real,  incongruity  of  the  result  ar- 
rived at ;  that  is  to  say,  that  a  distribution  will  be  made  in  favor  of 
four  of  a  certain  class  of  defendants,  which  is  denied  to  two  others 
of  the  class,  whose  rights  are  exactly  the  same.  For  this  incongruity, 
however,  this  court  is  not  responsible.    It  is  occasioned  by  the  vol- 
untary action  of  the  two  nonappealing  defendants  themselves.   They 
acquiesced  in  the  decision  of  the  special  term,  erroneous  though  it 
was,  and  it  is  that  and  that  alone  that  causes  the  incongruity. 
The  motion  should  be  granted. 


ST.    JOHN   V.    ANDREWS   INSTITUTE  917 

Chase,  J.  (dissenting)  :  This  motion  is  made  to  amend  the 
remittitur  of  this  court  so  as  to  deny  to  said  next  of  kin  who  did  not 
appeal  the  riglit  to  partake  in  the  division  of  the  income  upon  the 
fund  in  the  hands  of  the  plaintiff  which  accrued  between  the  time 
when  the  testator  died  and  the  organization  of  the  Andrews  Institute 
for  Girls,  It  is  made  in  behalf  of  said  Andrews  Institute  for  Girls 
to  whom  said  income  was  directed  to  be  paid  by  the  judgment 
entered  at  the  special  term. 

If  the  modification  of  the  judgment  directed  by  us  does  not 
apply  to  all  of  the  next  of  kin  it  will  result  in  inconsistent  judg- 
ments upon  the  same  issue  and  the  court  will  instruct  the  plaintiff 
as  executor  and  trustee  to  distribute  the  income  of  the  estate  for  the 
time  mentioned  to  a  part  of  a  class  and  withhold  the  shares  from 
the  others  of  said  class,  not  pursuant  to  any  possible  construction  of 
the  will  or  in  accordance  with  the  judgment  of  the  court  based  upon 
the  duty  of  the  executor  and  trustee,  but  pursuant  to  the  claimed 
rights  of  the  parties  growing  out  of  the  practice  in  connection  with 
the  appeal.  The  appeal  taken  from  the  judgment  was  general  and 
no  question  relating  to  the  identity  of  the  next  of  kin  is  involved. 

I  am  of  the  opinion  that  the  reversal  of  the  judgment  in  part, 
as  stated  in  the  opinion  previously  filed  herein,  inures  to  the  benefit 
of  the  next  of  kin  as  a  class. 

Werner,  Willard,  Bartlett  and  HIscock,  JJ.,  concur  with  Cullen, 
Ch.  J. ;  Gray  and  Haight,  JJ.,  concur  with  Chase,  J, 

Ordered  accordingly.^^ 


''Where  one  of  several  parties  appeals  and  secures  a  reversal  it  is  gen- 
erally said  that  this  does  not  disturb  the  judgment  against  his  co-party  unless 
the  judgment  or  decree  below  is  an  entirety  that  can  only  be  disposed  of  by 
a  total  reversal.  In  the  application  of  the  rule  the  cases  are  not  consistent. 
See,  where  the  reversal  was  as  to  the  appellant  alone.  Lanahan  v.  Latrohe,  7 
Md.  268  (1854)  ;  Hozvard  v.  Jl'aggamann,  28  La.  99  (1876)  ;  Anncly  v.  De 
Sanssiire,  12  S.  Car.  488  (1879)  ;  Donovan  v.  Driscoll,  12  W.  N.  Cas.  (Pa.) 
203  (1882)  ;  Solinsky  v.  Lincoln,  S.  Bk.,  85  Nebr.  36S,  4  S.  W.  836  (1886)  ; 
Michener  v.  Bengel,  135  Ind.  188,  34  N.  E.  664,  816  (1893)  ;  Littell  v.  Miller, 
8  Wash.  566,  36  Pac.  492  (1894)  ;  Nezi'hiirgh  S.  Bk.  v.  Woodhiiry,  64  App. 
Div.  305,  72  N.  Y.  S.  222  (1901) ;  Boivlby  v.  DeWit,  47  W.  Va.  323,  34  S.  E. 
919  (1899)  ;  Merchants  Nat.  Bank  v.  Stebhins,  15  S.  Dak.  280,  89  N.  W.  674 
(1901)  ;  Moore  v.  Price,  loi  Ark.  142,  141  S.  W.  501  (1911)  ;  State  v.  Dayton 
L.  Co.  (Tex.  Civ.  App.),  164  S.  W.  48  (1914),  and  compare,  where  the  judg- 
ment was  held  an  entirety,  Wilson  v.  Moore,  26  N.  J.  L.  458  (1857)  ;  Wood 
V.  Cullen,  13  111.  (Gil.  365)  394  (1868)  ;  Huckabee  v.  Nelson,  54  Ala.  12 
(1875)  ;  Murphy  v.  O'Reilcy,  78  Ky.  263  (1880)  ;  Bradford  v.  Taylor,  64  Tex. 
169  (1885)  ;  Bradford  v.  Bennett,  48  111.  App.  145  (1891)  ;  Hall  v.  Calhoun 
Circuit  Judge,  123  Mich.  555,  82  N.  W.  229  (1900);  Schoenbcrger  v.  White, 
75  Conn.  605,  54  Atl.  882  (1903)  ;  Lesh  v.  Davison,  181  Ind.  429,  104  N.  E.  642 
(1914)  ;  Rozvcll  V.  Ross,  89  Conn.  201,  93  Atl.  236  (1915).  In  Washington,  by 
statute,  a  party  who  does  not  join  in  an  appeal  or  prosecute  an  independent 
anpeal  shall  derive  no  benefit  from  an  appeal  by  another  unless  from  necessity. 
Morgan  v.  Williams,  "jy  Wash.  343,  137  Pac.  476  (1914). 


918  Arrr.AL  and  error 

GARR  V.  GOMEZ 

Court  of  Errors  of  New  York,  1832 

9  ll'cnd.  (N-  y-)  649 

Error  from  the  Supreme  Court. 

Gomez,  the  plaintilt  below,  sued  Garr,  his  declaration  consist- 
ing of  three  counts.  The  defendant  pleaded  non  assumpsit  and  four 
special  pleas  to  which  the  plaintifl"  demurred.  On  the  trial  under 
the  general  issue  general  damages  were  assessed  upon  all  three 
counts  and  on  the  demurrer  judgment  was  given  for  the  plaintiff. 
The  court  of  errors  adjudged  that  the  fourth  special  plea  was  a 
sufficient  bar  to  the  action  as  to  the  second  and  third  counts,  but  that 
a  venire  de  novo  should  be  awarded  to  ascertain  the  damages  on  the 
first  count,  the  pleas  to  v\-hich  v/ere  bad.^" 

The  counsel  for  the  plaintiff  in  error,  I.  L.  Wendell,  prayed  to 
be  heard  on  the  question  of  the  av/ard  of  a  venire  de  novo  before 
the  court  pronounced  judgment,  and  he  was  indulged.    He  insisted, 
with  all  deference  to  tlie  intimations  in  the  opinions  which  had  been 
read,  that  in  a  case  like  the  present,  the  plaintiff  below  was  not  en- 
titled to  a  venire  de  novo.  That  the  rule  is,  where  judgment  is  given 
in  the  court  below  against  tlie  defendant  and  he  brings  a  writ  of 
error,  the  judgment  in  the  court  of  error,  if  given  for  him,  is  quod 
judicium  reversitur;  but  if  the  judgment  in  the  court  below  were 
given  against  the  plaintiff  and  he  bring  a  writ  of  error  and  succeed, 
the  judgment  below  is  not  only  reversed,  but  the  court  of  error  gives 
such  judgment  as  the  court  belov,'  ought  to  have  given,  and  cited  i 
Archbold's  Pr.  tit.  Writ  of  Error  (Judgment)  and  the  cases  there 
collected.    He  contended  that  on  the  reversal  of  a  judgment,  a 
venire  de  novo  was  awarded  only  in  one  of  the  following   cases: 
I.    Where  the  plaintiff  brought  error;  2.  When  there  was  a  special 
verdict;  3.   An  imperfect  verdict;  4.  Demurrer  to  evidence;  and 
5.  A  bill  of  exceptions.    And  he  cited  the  following  cases  as  in- 
stances to  support  this  position :  3  T.  R.  27 ;  Cowp.  89,  91 ;  2  Str. 
1051,  1 124;  I  T.  R.  34  and  783;  2  T.  R.  53  and  125;  5  T.  R.  367; 
I  Wend.  (N.  Y.)  64;  5  Wend.  (N.  Y.)  341 ;  6  Wend.  (N.  Y.)  173. 
He  insisted  that  not  a  case  was  to  be  found  in  the  English  reports, 
where  a  venire  de  novo  had  been  awarded  on  the  reversal  of  a  judg- 
ment where  entire  damages  had  been  given  on  separate  counts,  some 
good  and  some  bad,  except  the  case  of  Grant  v.  Astle,  Doug.  722,  de- 
cided in  1 78 1,  which  case  was  condemned  by  counsel  in  i  T.  R.  528, 
as  not  warranted  by  the  old  authorities ;  and  Duller,  J.,  upon  whose 
suggestion  the  order  was  made  in  Grant  v.  Astle,  afterward,  in  1789, 
in  Hancock  v.  Haywood,  3  T.  R.  435,  in  the  most  unqualified  terms 
admits,  that  on  a  writ  of  error  where  one  count  appears  bad  and  the 


*'Only  so  much  of  the  case  as  relates  to  the  reversal  of  judgment  is  given, 
beginning  page  C73  of  the  report.  The  formal  judgment  and  part  of  th& 
opinion  of  Nelson,  J.,  are  omitted. 


GARR   v.    GOMEZ  919 

verdict  is  entered  generally  on  all  the  counts,  the  court  must  reverse 
the  judgment  in  toto,  since  they  can  not  see  on  which  of  the  counts 
tlie  damages  were  given.  Besides,  the  case  of  Grant  v.  Astle  comes 
within  one  of  the  exceptions,  in  which  it  is  admitted  that  it  is  ac- 
cording to  the  practice  of  the  court  to  av/ard  a  venire  de  novo,  for 
that  was  a  verdict  subject  to  the  opinion  of  tlie  court  on  a  case  re- 
served, and  therefore  in  substance  a  special  verdict. 

Walworth,  Ch. :  In  some  of  the  early  cases  it  is  said,  if  the  de- 
fendant brings  a  writ  of  error,  and  the  judgment  against  him  is  re- 
versed, the  appellate  court  can  not  award  a  venire  de  novo,  or  give 
any  other  judgment  than  a  mere  judgment  of  reversal,  leaving  the 
plaintiff  in  the  court  below  to  seek  his  remedy  by  a  new  suit.  See 
Parker  v.  Harris,  i  Salk.  262;"^  Steele  v.  Hopkinson,  2  Str.  1055; 
Cummlng  v.  Sibley,  4  Burr.  2489.  This,  however,  can  not  be 
considered  as  the  law  at  the  present  day ;  for  it  has  frequently  been 
decided,  both  here  and  in  England,  that  upon  a  writ  of  error, 
whether  the  same  is  prosecuted  by  the  plaintiff  or  the  defendant  in 
the  court  below,  tlie  court  of  errors  upon  a  reversal  of  the  judg- 
ment may  proceed  and  give  such  judgment  as  the  court  below  ought 
to  have  given;  and  may  award  a  venire  de  novo,  if  necessary  for 
the  attainment  of  justice.  When  a  judgment  is  reversed  in  this 
court,  or  in  the  exchequer  chamber,  or  tlie  house  of  lords  in  Eng- 
land, the  practice  is  to  direct  the  venire  de  novo  to  be  awarded  in 
the  court  below.  See  Livingston  v.  Rogers,  1  Caines  (N.  Y.)  586. 

In  tlie  case  of  Shrewsbury  v.  Kynerston,  7  Bro.  P.  C.  (Toml.  ed.) 
396,  the  writ  of  error  was  prosecuted  by  the  defendant  in  the  court 
below,  and  the  judgment  was  reversed,  for  a  defect  in  the  verdict 
on  which  the  judgment  was  rendered,  iDut  the  house  of  lords  being 
against  the  plaintiff  in  error  on  the  merits  of  the  case,  directed  a 
venire  de  novo  to  be  awarded  in  the  Court  of  King's  Bench.  A  sim- 
ilar decision  was  made  in  the  case  of  Haszvell  v.  Challie,  2  Str.  1125, 
upon  the  reversal  of  a  judgment  of  the  King's  Bench  upon  a  writ 
of  error  prosecuted  by  tlie  defendant  in  the  court  below.  In  Green 
v.  Bailey,  5  Munf.  (Va.)  246,  the  court  of  appeals  in  Virginia,  upon 

^^Parker  v.  Harris,  King's  Bench  1692,  i  Salk.  262  per  cur.:  "Where 
judgrment  is  given  for  the  plaintiff,  and  the  defendant  brings  error,  there 
shall  only  be  judgment  to  reverse  the  former  judgment,  for  the  suit  is  only 
to  be  eased  and  discharged  of  that  judgment.  But  where  the  plaintiff  brings 
error,  the  judgment  shall  not  only  be  a  reversal,  but  the  court  shall  also 
give  such  judgments  as  the  court  below^  should  have  given;  for  his  writ 
of  error  is  to  revive  the  first  cause  of  action,  and  to  recover  what  he  ought 
to  have  recovered  by  the  first  suit  wherein  erroneous  judgment  was  given." 
Bac.  Abr.,  Error  (m)  2;  Faldowe  v.  Ridge,  Cro.  Jac.  206  (1608)  ;  Szvearinacn 
V.  Prncllrtnn^  /\  .Sprg.  Br  ]^  (Pa.)  389  (1818)  ;  Atkinson  v.  FortinhcrryT 
7  Sm.  &  M.  (Miss.)  302  (1846);  Robinson  v.  Robinson,  5  Harr.  (Del.)  8 
(1848).  On  error  in  the  King's  Bench  the  court  could  award  a  writ  of  inquiry 
to  assess  damages  and  upon  the  return  of  the  inquest  give  final  judgment. 
2  Saund.  loi,  I;  i  Arch.  Vr.  (7th  ed.)  376;  2  Tidd's  Pr.  (9th  ed.)  (1180). 
It  was,  at  length,  finally  settled  that  a  court  of  error  could  award  a  venire 
facias  de  novo.  Kynaston  v.  Shrewsbury,  2  Str.  1051  (1722)  ;  Parker  v.  Wells, 

1  p.  &  E.  783,  18  Ch.  Div.  477  (1787)  ;  Davies  v.  Pierce,  2  T.  R.  125  (1787)  ; 
Lickharrow  v.  Mason,  2  H.  Bl.  211    (1793).    Contra:  Street  v.  Hopkinson, 

2  Str.  1055  i'^J^Z),  and  contra  on  error  from  inferior  local  courts.  Trevor  V. 
Wall,  I  D.  &  E.  151  (1786)  ;  Bishop  v.  Kaye,  3  B.  &  Aid.  605  (1820). 


OJO  ArPEAT.   AND    ERROR 

error  brourjlit  hy  the  dofcinlanl,  not  only  reversed  the  jiulj^ment,  but 
also  procoecled  to  give  such  judi^inent  as  the  court  below  ought  to 
have  given,  by  awarding  a  repleader.  So  in  tlie  case  of  Gardner  v. 
J 'idol,  6  Rand.  (\'a.)  io6,  upon  a  writ  of  error  brought  by  the 
defendant,  the  judgment  was  reversed  on  account  of  a  defective 
linding  of  the  jury,  and  a  venire  de  novo  was  directed  to  be 
awarded.  And  in  the  case  of  JJ'ard  v.  Johnson,  i  Munf.  (Va.)  45,  a 
judgment  of  the  circuit  court  was  reversed  by  the  court  of  appeals 
because  the  circuit  court,  upon  a  writ  of  error  brought  by  the  de- 
fendant, had  reversed  a  judgment,  but  had  not  proceeded  to  give 
such  judgment_  in  favor  of  the  plaintiff  in  the  court  below  as  ought 
to  have  been  given  there.  Similar  decisions  have  been  made  in  sev- 
eral otlier  of  our  sister  states.  See  Commonwealth  v.  Howard,  13 
Alass.  221 ;  Davenport  v.  Bradley,  4  Conn.  311. 

In  the  case  of  the  King  v.  Amery,  1  Anst.  183,  the  house  of 
lords  propounded  the  question  to  the  judges,  whether  if  the  judg- 
ment of  tlie  court  below  be  reversed  on  error,  the  appellate  court 
must  give  the  same  judgment  as  the  court  below  ought  to  have 
given?  And  upon  this  question,  which  was  general,  and  applied  to 
a  writ  of  error  brought  by  the  defendant  in  tlie  court  below,  as  well 
as  to  a  writ  of  error  prosecuted  by  plaintiff,  Chief  Justice  Eyre  de- 
livered the  unanimous  answer  of  the  judges  in  the  affirmative.  So 
in  Gildart  v.  Gladstone,  12  East  668,  where  the  common  pleas 
had  given  judgment  for  tlie  plaintiff  on  a  special  verdict,  the  Court 
of  King's  Bench,  upon  a  writ  of  error,  reversed  the  decision  of  the 
common  pleas.  The  question  then  arose  whether  the  plaintiff  in 
error  was  entitled  to  a  mere  judgment  of  reversal,  or  whether  he 
should  have  a  judgment  in  his  favor  upon  the  verdict,  together  with 
the  costs  of  his  defense  in  the  court  below,  and  upon  argument  the 
Court  of  King's  Bench  decided  that  he  was  entitled  to  such  a  judg- 
ment as  the  court  of  common  pleas  ought  to  have  given,  which  of 
course  included  the  costs  of  his  defense  in  that  court.  In  Grant  v. 
Astle,  2  Doug.  731,  entire  damages  were  given  upon  a  declaration 
consisting  of  several  counts,  some  of  which  were  good  and  others 
defective,  and  the  judgment  was  for  this  reason  reversed;  but  the 
Court  of  King's  Bench  held  it  was  a  proper  case  for  venire  de  novo 
to  assess  the  damages  on  the  counts  which  were  good.  And  in  the 
case  of  Shaffer  Y.  Kintr.er^  t  Bin,  (Pa.^^6,  which  was  also  a  case 
of  generaf  damages,  where  some  of  the  counts  of  the  plaintiff's 
declaration  were  bad,  Tilghman,  Ch.  J.,  said  the  case  of  Grant  v. 
Astle,  was  good  law  and  good  sense,  and  that  he  was  willing  to 
abide  by  it;  a  venire  de  novo  was  awarded  accordingly,  in  confor- 
mity to  that  decision.  In  the  case  of  Flower  v.  Allen,  in  this  court, 
5  Cow.  (N.  Y.)  668,  Spencer,  senator,  refers  to  the  same  case, 
as  well  as  to  other  English  decisions,  as  establishing  the  principle 
that  whenever  a  judgment  is  reversed  upon  some  ground  which  does 
not  involve  the  merits  of  the  cause,  a  venire  de  novo  is  awarded  of 
course  to  try  those  merits.  And  it  appears  by  the  report  of  the  case 
of  Richardson  v.  Mellish,  3  Bing.  346,  that  the  Court  of  King's 
Bench  had  again  followed  the  decision  in  Grant  v.  Astle,  by  awarding 


GARR  V.    GOME^  92I 

a  venire  de  novo  upon  the  reversal  of  a  judgment,  because  some  of 
the  counts  were  defective,  and  general  damages  had  been  assessed. 
So  in  the  recent  case  of  Benius  v.  Beekman,  in  this  court,  3  Wend. 
(N.  Y.)  676,  where  the  judgment  was  reversed,  on  account  of  a 
defective  finding  of  the  jury  as  to  some  of  the  issues,  a  venire  de 
novo  was  awarded,  although  the  writ  of  error  was  brought  by  the 
defendant  in  the  court  below. 

I  have  no  doubt,  therefore,  that  this  court  ought  to  authorize 
the  issuing  of  a  venire  de  novo  to  try  the  issue,  and  to  assess  the 
plaintiff's  damages  on  the  first  count  of  his  declaration ;  as  it  was  his 
own  fault  that  the  issue  was  tried  before  the  judgment  was  given  on 
the  demurrer  to  the  several  pleas,  he  should  not  be  permitted  to 
have  an  award  of  such  venire,  except  upon  the  terms  of  paying  the 
costs  of  the  formal  trial. 

Nelson,  J. :  It  is  laid  down  in  the  books,  and  supported  by  ad- 
judged cases,  that  if  judgment  be  given  against  a  defendant,  and  he 
brings  a  writ  of  error,  upon  which  the  judgment  below  is  reversed, 
the  judgment  shall  only  be  quod  judicium  reversitur,  and  the  reason 
given  is,  that  the  writ  of  error  is  brought  by  the  defendant  merely 
to  be  discharged  of  the  judgment  below.  Bacon's  Abr.  tit.  Error, 
503.  This  as  a  general  proposition  may  be  correct,  and  is  founded 
upon  the  idea  or  assumption  that  the  whole  merits  of  the  case  are 
fully  and  finally  determined  by  the  decision  in  the  court  above,  and 
that  the  plaintiff  below  has  no  cause  of  action.  In  such  a  case,  judg- 
ment of  reversal  is  the  only  action  of  the  court  necessary  to  a  just 
and  definite  settlement  of  the  matters  in  litigation  between  the  par- 
ties, and  the  result  is  the  same  as  if  the  court  below  had  done  what 
they  ought  to  have  done,  according  to  the  decision  of  the  court 
above,  viz.,  given  judgment  against  the  plaintiff  on  the  merits.  But 
there  are  exceptions  to  this  rule,  if  it  may  be  called  a  general  one, 
which  are  as  thoroughly  settled  as  is  the  rule  itself,  and  upon  as 
sound  and  conclusive  reasons.  Where  the  defendant  brings  the 
writ  of  error,  and  the  court  above  sees  that  the  judgment  is  not 
reversed  upon  the  whole  merits  of  the  case  of  the  plaintiff  below, 
but  upon  a  formal  or  technical  question  not  involving  the  substan- 
tial ground  of  litigation,  there  the  court  order  the  court  below  to 
award  a  venire  de  novo.  The  reason  is  obvious.  The  plaintiff  is 
entitled  to  the  trial  of  his  cause  upon  the  merits ;  it  would  Be  a  re- 
proach to  the  administration  of  justice  if  he  was  not;  and  this  can 
be  done  with  more  convenience  and  less  delay  and  expense  to  both 
parties  by  awarding  in  the  court  below  a  venire  de  novo  than  by 
bringing  a  new  suit.  Indeed,  it  might  frequently  happen  that  with- 
out the  continuance  of  the  suit  in  the  court  to  its  final  determina- 
tion on  the  merits,  the  demand  would  be  barred  by  the  statute  of 
limitations.  When  the  cause  is  again  remitted  to  the  court  below, 
the  plaintiff  may  on  application  to  it,  or  otherwise,  disentangle  his 
case  from  the  nets  of  form  and  technicality  and  obtain  a  trial  upon 
the  merits.  Whether  the  trial  is  had  on  the  new  venire  ordered  by 
this  court,  or  on  one  in  a  new  suit,  is  wholly  immaterial,  so  far  as 
the  substantial  rights  or  interests  of  the  defendant  are  concerned. 


C)22  ArrF.AT:    AXD    EI^ROU 

The  difference  may  be  very  material  as  to  those  of  the  plaintiff,  as 
has  already  been  shown. 

If  the  judgment  is  given  against  the  plaintiff  below,  and  he 
brings  the  writ  of  error,  and  the  decision  is  in  his  favor,  the  judg- 
ment shall  not  only  be  reversed,  but  the  court  shall  give  such  a 
judgment  as  the  court  below  ought  to  have  given,  or  order  the  award 
of  a  venire  de  novo ;  and  the  reason  is  that  the  judgment  of  the  re- 
versal revives  the  first  cause  of  action.  The  right  of  the  court  to 
order  a  venire  in  such  a  case  is  not  questioned.  The  reason,  how- 
ever, is  no  stronger  for  the  venire  than  in  the  case  where  the  defend- 
ant brings  the  writ  of  error  and  reverses  the  judgment  below  on 
ground  which  docs  not  involve  the  plaintiff's  cause  of  action.^* 

Judgment  accordingly. 


:miller  z'.  elvlston 

Supreme  Court  of  Pennsylvania,  181.S 

I  Scrg.   &  R.   (Pa.)  309 

In  error. 

On  the  fourth  of  May,  1812,  Ralston  obtained  a  judginent  be- 
fore Richard  Renshaw,  Esq.,  an  alderman  of  the  city,  against  Miller, 
and  on  the  twelfth  of  the  same  month  an  appeal  was  entered  to  the 
common  pleas  of  Philadelphia  County. 

Browne  and  Grinnell,  now  showed  for  error  that  the  promise 
laid  in  the  declaration  was  after  the  appeal  w-as  entered,  to  wit,  on 
the  first  of  June,  1812. 

Hopkins,  for  the  defendants  in  error,  said  that  the  day  was  not 
material. 

By  The  Court:  It  appears  by  the  record  that  the  action  was 
brought  before  the  debt  was  due,  which  is  manifest  error.  The 
judgment  must  therefore  be  reversed. 

Mr.  Hopkins  then  moved  for  a  venire  facias  de  novo,  which 
the  court  refused,  because  there  was  no  error  in  the  course  of  the 
trial,  but  it  appeared  from  the  plaintiff's  own  averment  that  there 
was  no  cause  of  action  at  the  time  the  suit  was  commenced. 

Judgment  reversed.'^ 


40 


"'Accord:  Shaffer  v.  Kintzer,  i  Binn.  (Ea.-)  537,  2  Am.  Dec.  488  (1809)  ; 
Commonzcealth  v.  Howard,  13  Mass.  221  (1816)  ;  Davenport  v.  Bradley,  4 
Conn.  309  (1822)  ;  Flozi-er  v.  Allen,  5  Cowen  (N.  Y.)  654  (1825)  ;  Thornton 
V.  IVynn,  12  Wheat.  (U.  S.)  183,  6  L.  ed.  595  (1827)  ;  Gardner  v.  Vtdal,  6 
Rand.  (Va.)  106  (1828).  And  see  Carr  v.  Stokes,  16  N.  J.  L.  493  (1838). 

^"Judgment  Avill  be  rendered  in  the  appellate  court,  or  the  cause  remanded 
for  judgment  below,  without  a  new  trial  when  upon  ever>'  view  of  the  facts 
it  is  clear  that  there  is  no  cause  of  action,  or  tliat  the  defense  can  not 
succeed,  or  where  according  to  many  cases,  it  clearly  appears  tinon  a  y'ew  of 
the  undisputed  facts  that  the  result  of  a  second  trial  will  lead  to  no  different 
conclusions  than  to  which  the  appellate  court  has  already  come.  GrifitJi  v. 
E.'^hlemav.  -i  Watts  (Pa.)  =;i  (1835)  ;  Van  Dyke  v.  Van  Dyke,  17  NTJ.  L.  478 
(1840)  ;  Waldo  v.  Moore,  33  Maine  511  (1851)  ;  Marqtiat  v.  Marqiiat,  12  N.  Y. 


FIDELITY    MUT.    L.    INS.    CO.    Z'.    SECK  923 


FIDELITY  MUT.  LIFE  INS.  CO.  v.  BECK 


Supreme  Court  of  Arkansas,  1907 
84  Ark.  57 

Mrs.  Beck,  the  beneficiary,  in  a  policy  upon  the  life  of  her  hus- 
band, James  W.  Beck,  brougiit  suit  against  the  appellant  life  insur- 
ance company  upon  the  same,  and  the  trial  resulted  in  the  court  di- 
recting a  verdict  in  favor  of  the  plaintiff.  The  insurance  com- 
pany appealed  and  the  Supreme  Court,  holding  that  the  court  erred  in 
giving  a  peremptory  instruction,  reversed  the  judgment  and  re- 
manded the  cause  for  further  proceedings.  The  appellant  moved 
for  a  rehearing.*^ 

Hill,  C.  J. :  Appellant  insists,  in  motion  for  rehearing,  that 
the  judgment  of  the  court  should  have  been  for  a  dismissal  instead 
of  remanding  for  a  new  trial,  because  it  alleges  there  was  undis- 
puted evidence  of  a  breach  of  a  warranty  contained  in  the  sixth 
question  and  answer. 

On  the  trial  of  the  case  in  the  lower  court,  there  was  a  perempt- 
ory direction  to  find  for  the  plaintiff,  and  there  v/ere  two  grounds 
for  a  reversal  presented  here;  one  the  ground  mentioned  in  the 
opinion,  and  the  other  ground  the  one  now  urged  in  the  motion  for 
rehearing. 

For  reasons  stated  in  the  opinion,  the  direction  for  a  peremptory 
verdict  was  error.  That  is  as  far  as  the  court  went  in  disposing  of 
the  appeal,  and  was  as  far  as  it  was  necessary  or  proper  for  the 
court  to  go.  It  is  true  that  where  there  is  an  affirmative  showing 
that  there  can  be  no  recovery,  and  a  new  trial  would  only  portract 
litigation  and  occupy  the  time  of  the  courts  and  increase  costs,  then 
it  is  the  duty  of  the  court  to  dismiss  the  case,  as  was  well  pointed 
out  by  Mr.  Justice  Hemingway  in  Pennington  v.  Underwood,  56 
Ark.  53.    The  ordinary  rule  of  practice  on  reversal  is  to  remand 


336  (1855)  ;  Storing  v.  Onlcy,  44  111.  123  (1867)  ;  Roberts  v.  Corbin,  28  Iowa 
355  (1869) ;  Murdoch  v.  Ganahl,  47  Mo.  135  (1S70)  ;  Stvift  v.  Agnes,  2,3  Wis. 
228  (1873)  ;  Toledo  &c.  R.  Co.  v.  Durkin,  76  111.  395  (1875)  ;  Brozvnsville  v. 
Basse,  43  Tex.  440  (1875)  J  Oregon  R.  Co.  v.  Bridtuell,  11  Ore.  282,  3  Pac.  684 
(1883)  ;  Allen  v.  St.  Louis  Bank,  120  U.  S.  20,  30  L.  ed.  573,  7  Sup.  Ct.  460 
(1886)  ;  Webb  v.  Leominster  Shirt  Co.,  loi  Mich.  136,  59  N.  W.  397  (1894)  ; 
Bernhardt  V.  Brown,  118  N.  Car.  700,  24  S.  E.  527,  715,  36  L.  R.  A.  402 
(1896)  ;  Minnear  v.  Holloxvay,  56  Ohio  St.  148,  46  N.  E.  636  (1897)  ;  Hurlburt 
V.  Strauh,  54  W.  Va.  303,  46  S.  E.  163  (1903)  ;  Miller  v.  Kern  Co.,  150  Cal. 
797,  90  Pac.  119  (1907)  ;  Deloria  v.  Atkins,  158  Mich.  232,  122  N.  W.  559 
(1909)  ;  Elic  V.  Cowles,  82  Conn.  236,  73  Atl.  258  (1909)  ;  Knight  v.  ///.  Cent. 
R.  Co.,  180  Fed.  368  (1910)  ;  Warren  v.  Finn,  84  N.  J.  L.  206,  86  Atl.  530 
(1913)  ;  Hanick  v.  Leader,  243  Pa.  372,  90  Atl.  146  (1914)  ;  Schenk  v.  Inter- 
national R.  to.,  146  N.  Y.  S.  365  (1914)  ;  Peterson  v.  Ocean  E.  R.  Co.,  161 
App.  Div.  720,  146  N.  Y.  S.  604  (1914).  Compare  Slocum  v.  A''.  Y.  Life  Ins. 
Co.,  228  U.  S.  364,  57  L.  ed.  879  (1912). 

"The  statement  of  facts  is  from  the  first  opinion.   Only  the  judgment  on 
motion  for  rehearing  is  printed. 


9^4  Arrr.AL  and  ]:kror 

common-law  cases  for  new  trial  unless  there  are  exceptional  rea- 
sons, as  above  indicated,  why  there  should  be  a  dismissal.  The  court 
docs  not  see  that  this  case  belongs  to  that  exceptional  class.  While 
it  appears  from  the  application  in  the  transcript  that  the  sixth 
question  was  answered  by  the  assured,  and  it  also  appears  from  the 
testimony  that  it  was  not  truly  answered,  yet  the  issue  of  fact 
whether  or  not  there  was  a  breach  of  warranty  in  regard  to  it,  like 
the  other  issue  disposed  of  in  the  opinion,  has  not  been  tried  by  the 
lower  court,  as  it  refused  to  go  into  a  trial  of  these  issues,  errone- 
ously holding  that  no  defense  was  offered,  whereas  the  defenses 
offered  should  have  been  tried,  and  tliat  is  w^hat  is  now  directed. 
That  means,  tried  first  by  the  lower  court  as  to  the  sufficiency  of  the 
evidence  to  go  to  the  jury ;  and,  if  the  court  should  find  it  sufficient 
to  go  to  the  jury,  then  by  the  jury  to  find  the  truth  where  there  is  a 
conflict,  or  where  there  may  be  different  conclusions  drawn  from 
undisputed  evidence. 

There  should  be  a  trial  of  the  real  issues  in  the_  circuit  court 
before  this  court  should  exercise  its  power  of  dismissal.  This  is 
especially  true  in  this  case,  where  the  testimony  on  tliis  trial  does 
not  show  that  other  evidence  raising  proper  issues  of  fact  may  not 
be  adduced  not  inconsistent  with  the  facts  now  in  evidence. 

]\Iotion  for  rehearing  is  therefore  denied.*- 


*-  "It  is  the  duty  of  an  appellate  court  to  determine  whether  the  circum- 
stances of  the  case  require  that  the  Htipation  shall  be  ended,  or  the  case 
shall  be  remanded  for  another  trial  upon  the  same  issues,  or  for  the  exercise 
of  the  discretion  of  the  lower  court  in  the  further  proceedings."  Gadsden  V. 
Thrush,  72  Nebr.  i,  99  N.  W.  835  (1904).  Usually,  the  court  will  order  a  new- 
trial  in  the  exercise  of  a  sound  discretion  whenever  it  appears  that  the  ends 
of  justice  will  be  best  subserved  by  such  action.  Wilder  v.  Greenlee,  49  111. 
253  (1868);  Buchannan  v.  Milliqan,  108  Ind.  433,  9  N.  E.  385  (1886); 
Houston  &c.  R.  Co.  v.  Staie,  24  Tex.  Civ.  App.  117,  56  S.  W.  228  (1900)  ; 
Bryan  v.  Straus,  157  Mich.  49,  121  N.  W.  301  (1909)-  In  New  York  it  is  said: 
"In  order  to  justify  an  appellate  court  in  rendering  final  judgment  against 
the  respondent  upon  the  reversal  of  a  judgment,  it  is  not  sufficient  that  it  is 
improbable  that  the  defeated  party  can  succeed  upon  a  new  trial,  but  it  must 
appear  that  he  certainly  can  not."  New  v.  Nezv  Rochelle,  158  N.  Y.  41,  52 
N.  E.  647  (1899)  ;  Hoivells  v.  Hettrick,  160  N.  Y.  308,  54  N.  E.  677  (1899)  ; 
Panghurn  v.  Biiick  Motor  Co.,  211  N.  Y.  228,  105  N.  E.  423  (1914)-  See  also, 
Shotzi'cll  V.  Dennman,  i  N.  J.  L.  342  (i795)  ;  Keycs  v.  Stone,  5  Mass.  391 
(1809);  Uliarton  v.  Williamson,  13  Pa.  St.  273  (1850);  Little  Schuylkill 
Navigation  R.  &  Coal  Co.  v.  Norton.  2d  Fa.  St.  465,  64  Am.  Dec. '672' CfSssT; 
Curtis  V.  Brown  County,  22  Wis.  167  (1867);  Schroeder  V.  Gessellschaft, 
60  Cal.  467  (1882)  ;  Latremouille  v.  Bennington  &  R.  R.  Co.,  63  _Vt.  336,  22 
Atl.  656  (1891);  Couadeau  v.  American  Accident  Co.  of  Louisville,  95  Ky. 
280,  25  S.  W.  6,  15  Ky.  L.  667  (1804)  ;  Bray  v.  Ford,  L.  R.  (1896),  A.  C.  44, 
L.  J.  65  Q.  B.  213,  72  L-  T.  609;  Ahrens  v.  Seattle,  39  Wash.  168,  81  Pac.  558 
(1905);  Shcvlin  V.  Shevlin,  96  Minn.  398,  105  N.  W.  257  (1905);  Buck  v.. 
McKeesfort.^'^2  Pa  ^tt  72  Atl.  514  (1909)  '.  Boy  v.  Hartford  &  S.  R.  Co., 
81  Conn.  578  (1909)  ;  Union  Castle  Mail  Co.  v.  Thomsen,  190  Fed.  536  (1911)  ; 
Borough  Bank  of  Brooklyn  v.  Lamphear,  154  App.  Div.  177,  138  N.  Y.  S.  864 
(1912);  Bonnette  v.  Molloy,  209  N.  Y.  167,  102  N.  E.  559  (1913);  Quaker 
Realty  Co.  v.  Lahasse,  131  La.  996,  60  So.  661,  Ann.  Cas.  1914A,  I073n  (1913)  ; 
Penn'cll  v.  Phillips.  ^^2  Pa  Super.  Ct.  ^:>a  (1913)  ;  Mier  v.  Chicago  Milwaukee 
&  St.  Paul  K.  Co.,  170  111.  App.  321  (1913)  ;  Hanicky.  Leader  J  243  Pa.  372,. 
90  Atl.  146  (1914)  ;  Pray  v.  New  York  S.  Bk.,  2irJSI.  Y.  32,  105  N.  E.  412 
(1914)  ;  Childress  v.  Lake  Erie  &  W.  R.  Co.,  182  Ind.  251, 105  N.  E.  467  (1914)- 


SYMPSON,  V.    JUXON  925 

SYMPSON  V.  JUXON 

In  the  King's  Bench,  1625 

Cro.  Jac.  699 

Error  of  a  judgment  in  Durham  for  the  plaintiff.  The  judg- 
ment being  reversed  in  the  King's  Bench,  a  writ  of  restitution  was 
awarded,  and  to  enquire  what  were  the  profits  of  the  land  recovered, 
a  tempore  judicii  praedicti,  which  was  7th  August,  19  Jac.  i,  where- 
upon the  inquisition  was  returned,  that  they  amounted  to  ten  pounds. 
Exception  was  taken  to  the  writ ;  for  it  ought  not  to  have  been  what 
the  profits  of  the  land  amounted  to  from  the  judgment;  for  the 
plaintiff  is  not  to  answer  the  profits  longer  than  from  the  time  of  the 
execution  sued,  which  was  long  after.  And  so  held  all  the  court; 
wherefore  the  writ  was  ruled  to  be  ill. 

The  plaintiff  in  the  writ  of  error  had  a  new  writ  of  restitution, 
which  vvas  to  enquire  what  profits  of  the  land  the  plaintiff  who  re- 
covered had  taken  colore  judicii  praedicti,  which  was  7th  August, 
19  Jac.  I,  and  after  the  reversal  thereof;  which  being  returned,  that 
he  took  the  profits  of  the  land  colore  judicii  praedicti  before  the 
reversal  thereof,  to  the  value  of  ten  pounds. 

An  exception  was  taken  thereto  by  Sir  Henry  Yelverton  and 
Sergeant  Damport,  that  this  writ  was  not  good ;  for  it  ought  to  have 
been  v/hat  profits  he  took  after  the  execution  sued,  for  that  appears 
of  record  to  be  long  after  the  judgment. 

But  all  the  court  held,  that  the  writ  was  good  enough;  for  the 
plaintiff  in  the  writ  of  error,  after  the  reversal,  is  to  be  restored  to 
all  that  he  lost,  and  what  the  plaintiff  in  the  judgment  by  color 
thereof  had  taken  after  the  judgment;  and  that  may  be  well,  by 
entry  after  the  judgment  (as  in  truth  the  case  was  affirmed  to  be) 
in  part,  and  yet  after  sue  execution  of  the  remainder;  wherefore  the 
writ  was  well  made;  and  so  Broom,  the  Secondary,  and  the  clerks 
affirmed  their  precedents  to  be ;  wherefore  the  writ  was  ordered  to 
be  filed,  and  the  plaintiff  had  execution  of  the  damages  found  by 
that  writ.  I,  myself,  was  of  counsel  with  the  plaintiff  in  the  writ  of 
error,  by  assignment  in  forma  pauperis.^^ 


*'Bac.  Abr.,  Error  (m)  3;  Eyre  v.  Woodfine,  Cro.  Eliz.  278  (1591)  ; 
Wilkinson's  Case,  Cro.  Eliz.  465  (1595)  ;  Goodyere  v.  Ince,  Cro.  Jac.  246 
(1610)  ;  IVestcrne  v.  Creswick,  4  Mod.  l6l  (1692)  ;  Anonymous,  2  Salk.  588 
(1706)  ;  LazeUe  v.  Miller,  15  Mass.  207  (1818)  ;  Rusell  v.  Gray,  6  Serg.  &  R. 
(Pa.)  208  (1820)  ;  Scoit  V.  Conover,  10  N.  J.  L.  61  (1828). 

In  Miii-ray  v.  Emmons,  26  N.  H.  523  (1853),  it  is  said  per  Eastman,  J.: 
"When  a  judgment  is  reversed  upon  a  writ  of  error,  the  party  against  whom 
the  judgment  was  rendered  in  the  court  below,  must  be  restored  to  all  that 
he  has  lost  by  the  erroneous  judgment.  If  an  execution  has  issued  against 
him,  and  has  been  extended  upon  his  lands,  he  is  entitled  to  his  possession 
and  seisin,  together  with  the  mesne  profits.  If  the  execution  has  been  satis- 
fied by  his  goods  or  money,  he  is  to  have  restitution  of  the  defendant  in 
error  in  money."  Stanard  v.  Brownlow,  3  Munf.  (Va.)  229  (1812)  ;  Safford 
V.  Stevens,  2  Wend.  (N.  Y.)  158  (1828)  ;  Williams  v.  Simmons,  22  Ala.  425 
(1853)  ;  Ratm  v.  Reynolds,  18  Cal.  275   (i86i)  ;  Dickensheets  v.  Kaufman, 


9 JO  APPEAL   AND   ERROR 

HAEBLER  r.  MYERS 

Court  of  Appeals  of  New  York,  1892 

132  N.  Y.  363 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme 
Court  in  the  first  judicial  department,  entered  upon  an  order  made 
October  24,  1890,  which  affirmed  a  judgment  in  favor  of  defend- 
ants entered  upon  a  decision  of  the  court  on  trial  at  special  term. 

This  was  an  action  for  money  had  and  received. 

In  April,  1SS8,  the  sheriff  of  the  city  and  county  of  New  York 
received'the  sum  of  $900  "by  reason  of"  the  levy  of  an  attachment 
which  the  plaintiffs  had  caused  to  be  issued  in  an  action  brought  by 
them  against  one  Bernharth  and  others.  On  October  thirtieth,  the 
defendants,  "as  subsequent  lienors,"  procured  an  order  restraining 
the  sheriff  from  paying  over  to  the  plaintiffs  the  money  so  received 
by  him,  and  on  November  twent)^-second,  they  procured  another 

29  Ind.  154  (1S67);  Buldt  v.  Garner,  31  Ohio  St.  28  (1876);  Gales  v. 
Brwkley,  4  Lea  (Tenn.)  710  (1880);  Boyett  v.  Vaughan,  86  N.  Car.  725 
(1882)  ;"  Wright  v.  Nostrand,  100  N.  Y.  616,  3  N.  E.  78  (1885)  ;  Lytle  v.  Lytic, 
94  N.  Cr-r.  522  (18S6)  :  Fish  v.  Toner,  40  Minn.  211,  41  N.  W.  972  (1889)  ; 
IVhitrscll  V  P/-/-^  T76  Pa  .Sf.  T7n,  -i'-.  Atl.  48  (1896)  ;  Keck  v.  Allender,  42  W. 
Va.  420,  26  S.  E.  437  (1896)  ;  Brightly  v.  McAleer,  4  Pa  Super.  €1^63  (1897)  ; 
McElwee  v.  Wilce,  80  111.  App.  338  (189S)  ;  I'lrst  h'at.  Bar.k  of  FT.  Scott  V. 
Elliott,  60  Kans.  172,  55  Pac.  880  (1899)  ;  McFadden  v.  Szvinerton,  36  Ore. 
336,  59  Pac.  816,  62  Pac.  12  (1900)  ;  Jenkins  v.  State,  60  Nebr.  205,  82  N.  W. 
622  (1900)  ;  Cowdery  v.  London  &  San  Francisco  Bank,  139  Cal._298,  73  Pac. 
196,  96  Am.  St.  115  (1903)  ;  Florence  Cotton  &  Iron  Co.  v.  Louisville  Bank- 
ing Co.,  138  Ala.  588,  36  So.  456,  100  Am.  St.  50  (1903)  ;  Chambliss  v.  Hass, 
125  Iowa  484,  loi  N.  W.  153,  68  L.  R.  A.  126  (1904)  ;  Lanyon  v.  Chesney, 
209  Mo.  I,  106  S.  W.  522  (1907)  ;  Ward  v.  Sherman,  155  Cal.  287,  100  Pac. 
864  (1909)  ;  Drescher-Rotbcrg  Co.  v.  Landeker,  82  Misc.  441,  143  N.  Y.  S. 
1050  (1913). 

Restitution  is  not  a  matter  of  right  but  depends  on  the  discretion  of  the 
court  and  will  not  be  ordered  where  the  justice  of  the  case  does  not  call 
for  it.  Fitzalden  v.  Lee,  2  Pall.  (U  S.)  20^.  i  L.  ed.  .-^^o.  i  Yeates  (Pn.)  207. 
(i-jm^^TTrant  v.  Kodgers.  6  Fhila.  (Fa.)  1.32  (1866);  Coster  v.  Peters, 
7  Rob.  386,  30  N.T~Su'per.  Ct.  386  (1868)  ;  Goidd  v.  McFall,  ii8_£a._SL>455. 
12  Atl.  336,  4  Am.  St.  606  (1888)  ;  Teasdale  v.  Stoller,  133  1^107645,  34  S.  W. 
873,  54  Am.  St.  703  (1895);  State  v.  Norton,  70  Nebr.  334,  97  N.  W.  434 
(1903)  ;  New  Castle  v.  Genkinger,  37  Super.  Ct.JPa.)  21  (1909)  ;  Carroll  v. 
Draughon,  i-JZ  Ala.  338,  s6  So.  209  (1911)-  Compare  Kanck  vT  B^eck£Z^  I3 
^^Trr^  ^  p     (Pn  :i   412   (1825);  Estns  V.  Baldwin,  9  TTow.  Pr.    (N.  Y.)   80 

The  fact  that  payment  was  not  coerced  by  execution  ought  not,  alone, 
to  prevent  restitution.  "We  ought  not  to  say  that  a  party  must  resist  the 
judgment  of  a  court  to  the  last  exremity  and  with  what  is  something  like 
contumacy,  if  he  wishes  to  preserve  his  right  to  restitution  in  case  he  suc- 
ceeds in  reversing  the  judgment."  Lott  v.  Sweccy,  29  Barb.  (N.  Y.)  87 
(1859).  Accord:  Gregory  v.  Litsey,  9  B.  Mon.  (Ky.)  43,  48  Am.  Dec.  415 
(1848);  Garr  v.  Martin,  I  Hilton  (N.  Y.)  358  (1857);  Scholey  v.  Halsey, 
72  N.  Y.  578  (1878)  ;  Hillcr  v.  Hiller,  35  Ohio  St.  645  (1880)  ;  Stuart  v.  Uni- 
versity L.  &  S.  Co.,  66  Ore.  546,  135  Pac.  165  (1913)-  Contra:  Winston  v. 
Nunez,  25  La.  Ann.  476  (1873)  -.Gould  v.  McFall.  118  Pa.  St.  455.  12  Atl.  336, 
4  Am.  .St.  606  (1888),  semble;  Kahnhach  v.  Foote,  86  Mich7240,  49  N.  W.  132 
(1891)  ;  Groves  v.  Sent  ell,  66  Fed.  179  (1895). 


HAEBLER   V.    MYERS  927 

order,  granted  at  special  term  on  notice,  vacating  said  attachment. 
"After  said  attachment  was  so  vacated,  and  in  consequence  thereof 
and  not  otherwise,  said  sheriff  paid  over  to  the  defendants,  as  sub- 
sequent Henors,  said  $900  which  he  had  received  under  the  attach- 
ment issued  to  him,  as  aforesaid,  by  tlie  plaintiffs."  On  the 
eighteenth  of  April,  1889,  the  order  vacating  the  attachment  was 
affirmed  by  the  general  term,  but  on  October  31,  1889,  the  court  of 
appeals  reversed  the  orders  made  by  the  general  and  special  terms 
and  denied  the  motion  to  vacate  the  attachment. 

November  12,  1888,  the  plaintiffs  recovered  judgment  in  the 
action  brought  by  them  against  said  Bernharth  and  others  for  the 
sum  of  $1,258.91,  but  the  execution  issued  thereon  to  said  sheriff 
was  returned  wholly  unsatisfied  and  the  judgment  is  still  unpaid. 
The  plaintiffs  demanded  restitution  from  the  defendants,  which  was 
refused,  and  thereupon  they  brought  this  action,  and  after  alleging 
the  foregoing  facts,  in  substance,  asked  that  the  defendants  be 
ordered  and  decreed  to  make  restitution  to  the  plaintiffs  of  the  said 
sum  of  $900,  with  interest  thereon  from  the  twenty-second  day  of 
November,  1888. 

The  defendants  demurred  to  the  complaint  upon  the  ground 
that  it  did  not  state  facts  sufficient  to  constitute  a  cause  of  action. 
The  special  term,  in  sustaining  the  demurrer,  held  that  the  defend- 
ants had  received  nothing  from  the  plaintiffs,  which  they  were 
bound  to  restore  to  them,  as  the  money  in  question  belonged  to 
Bernharth  and  others  until  it  was  devoted  to  the  payment  of  the  de- 
fendants' execution.  The  general  term  affirmed  the  judgment  upon 
the  same  ground,  but  also  suggested  that  it  was  the  duty  of  the 
plaintiffs  to  obtain  a  stay  of  proceedings,  if  they  wished  to  protect 
their  lien  by  a  successful  appeal.*^ 

Vann,  J. :  Restitution  was  a  remedy  well  known  to  the  com- 
mon law.  Its  object  was  to  restore  to  an  appellant  the  specific 
thing,  or  its  equivalent,  of  which  he  had  been  deprived  by  the  en- 
forcement of  the  judgment  against  him  during  the  pendency  of  his 
appeal.  It  was  not  created  by  statute,  but  was  exercised  by  the  ap- 
pellate tribunal  as  incidental  to  its  power  to  correct  errors,  and  hence 
the  court  not  only  reversed  the  erroneovis  judgment,  but  restored 
to  the  aggrieved  party  that  which  he  had  lost  in  consequence  thereof. 
It  was  usually  a  part  of  the  judgment  of  reversal  which  directed 
"that  the  defendant  be  restored  to  all  things  which  he  has  lost  on 
occasion  of  the  judgment  aforesaid." 

A  writ  of  restitution  was  thereupon  issued,  provided  the  amount 
that  the  appellant  had  lost,  or  paid  under  compulsion,  appeared  of 
record,  as  by  the  return  of  an  execution  satisfied.  Otherwise  pro- 
cess in  the  nature  of  an  order  to  show  cause  was  first  issued,  known 
as  a  scire  facias  quare  restitutionem  habere  non  debet.  Tomlin's 
Law  Diet,  title  Restitution ;  2  Till.  Abr.  472 ;  Rolle  Abr.  778 ;  West- 
erne  V.  Creswick,  4  Mod.  161 ;  Wilkinson's  Case,  Cro.  Eliz.  465 ; 
Goodyere  v.  Ince,  Cro.  Jac.  246;  Manning's  Case,  4  Coke  94;  2 
Tidd's  Pr.  1033 ;  i  Burrill  Pr.  292. 


**The  arguments  of  counsel  are  omitted. 


9-'S  APPEAL   AXD    ERROR 

In  this  state  the  practice  is  now  regulated  by  statute  and  ahiiost 
every  conceivable  case  is  provided  for.  Code  Civ.  Pro.  sections  445, 
1005,  1 216,  1292,  1323,  2124,  2263  and  3058.  Section  1323  seems 
especially  adapted  to  the  facts  set  forth  in  the  complaint,  as  it  pro- 
vides that  "where  a  final  judgment  or  order  is  reversed  or  modified 
upon  ajtpcal,  the  appellate  court  .  .  .  may  make  or  compel  res- 
titution of  property,  or  of  a  right,  lost  by  means  of  the  erroneous 
judgment  of  the  order."  This  is  a  part  of  section  330  of  the  Code 
of  Procedure,  under  which  it  w^as  held  that  the  power  conferred  was 
cumulative  and  did  not  take  away  the  common-law  rights  of  a  suc- 
cessful appellant.  Lott  v.  Swezey,  29  Barb.  (N.  Y.)  87,  88.  There 
were  earlier,  though  less  complete  statutes  upon  the  subject.  L. 
1832,  chapter  128,  section  i ;  2  R.  S.  509,  section  13;  i  R.  L.  96, 
sections  2,  5. 

The  statutory  remedy  is  exercised  by  the  entry  of  a  judgment 
or  order  in  the  action  in  which  the  erroneous  judgment  or  order 
was  rendered  or  made.  We  think  that  the  remedies  provided  by 
statute  are  not  exclusive  and  that  they  were  enacted  in  recognition 
of  the  right  of  restitution  as  it  existed  at  common  law,  to  furnish 
additional  means  of  enforcing  that  right. 

We  have  before  us  an  effort  to  procure  restitution  by  an  inde- 
pendent action  in  the  nature  of  indebitatus  assumpsit,  based  upon 
the  theory  tliat  the  law  will  imply  a  promise  from  the  conduct  of  the 
defendants  and  the  circumstances  of  the  case.  It  has  been  repeat- 
edly held  that  such  an  action  will  lie  to  recover  back  money  paid  on 
a  judgment  pending  an  appeal  which  resulted  in  a  reversal.  The 
subject  was  carefully  examined  in  Clark  v.  Pinney,  6  Cow.  (N.  Y.) 
298,  where  it  was  held  that  the  court  would  not  compel  the  party  to 
resort  to  the  antiquated  remedy  of  scire  facias,  but  would  permit  a 
recovery  by  a  direct  action,  as  for  money  had  and  received.  In  de- 
livering the  opinion.  Chief  Justice  Savage  said:  "The  general  propo- 
sition is  that  this  action  lies  in  all  cases  where  the  defendant  has  in 
his  hands  money  which,  ex  aequo  et  bono,  belongs  to  the  plaintiff. 
When  money  is  collected  upon  an  erroneous  judgment  which,  sub- 
sequent to  the  payment  of  the  money,  is  reversed,  the  legal  conclu- 
sion is  irresistible  that  the  money  belongs  to  the  person  from  whom 
it  was  collected."  This  principle  was  recognized  by  the  Supreme 
Court  of  the  United  States  in  United  States  Bank  v.  Bank  of  Wash- 
ington, 6  Pet.  (U.  S.)  8,  where  it  was  declared  that  "on  the  reversal 
of  a  judgment  the  law  raises  an  obligation  in  the  party  to  the  record, 
who  has  received  the  benefit  of  the  erroneous  judgment,  to  make 
restitution  to  the  other  party  for  what  he  has  lost,"  and  that  he  might 
proceed  by  action,  scire  facias,  or  order.  The  authorities  uniformly 
support  this  position  and  out  of  many  tliat  might  be  cited,  the 
following  are  sufficient  to  illustrate  the  subject:  Stiirges  v.  Allis, 
10  Wend.  (N.  Y.)  355;  Maghee  v.  Kellogg,  24  Wend.  (N.  Y.)  32; 
Norton  v.  Coons,  3  Den.  (N.  Y.)  130;  Lanqlcy  v.  Warner,  i  Sandf. 
(N.  Y.)  209;  LoU  V.  Swezey,  29  Barb.  (N.  Y.)  87,  88;  Kidd  v. 


HAEBLER   V.    MYERS  929 

Curry,  29  Hun  (N.  Y.)  215;  Wright  v.  Nostrand,  100  N.  Y.  616; 
Travel  cr'.'^  J  lis.  Co   v.  H^ntJr^jc^Pa    333-'^^ 

The  right  of  the  plaintiffs  toTecover 'could  hardly  be  questioned 
if  the  money  had  absolutely  belonged  to  them  when  it  was  paid  by 
the  sheriff  to  the  defendants,  but  inasmuch  as  they  only,  had  a  lien 
upon  it  and  had  not  then  com.pleted  their  title,  it  is  claimed  that  no 
action  will  lie  for  their  relief.  In  taking  this  position  the  defendants 
lose  sight  of  the  fact  that  a  lien  is  property  in  the  broad  sense  of 
that  word,  and  although  it  has  no  physical  existence  it  exists  by  oper- 
ation of  law  so  effectively  as  to  have  pecuniary  value,  and  to  be 
capable  of  being  bought  and  sold.  They  also  ignore  the  proceedings 
that  were  in  progress  to  convert  the  lien  into  a  title  to  the  fund.  This 
makes  the  successful  prosecution  of  the  appeal  a  barren  victory  and 
enables  the  party  in  fault  to  retain  the  fruits  of  his  own  wrong. 

While  the  erroneous  order  was  a  protection  to  the  sheriff,  who 
acted  upon  it  while  it  was  in  force,  it  is  no  protection  to  the  defend- 
ants, because  it  was  subsequently  reversed  on  appeal,  and  became, 
as  to  them,  the  same  as  if  it  had  never  been  made.  When  they  ac- 
cepted the  money  that  was  paid  over  in  consequence  of  the  order 
that  they  procured,  they  knew  that  if  the  order  should  be  reversed 
and  their  motion  denied,  tliey  would  no  longer  be  entitled  to  it,  and 
could  not  in  fairness  retain  it.  They  also  knew  that  if,  in  the  mean- 
time, the  plaintiffs  perfected  judgment  and  issued  execution,  their 
right  to  tlie  money,  if  not  paid  over,  would  be  complete  upon  a  re- 
versal of  the  order.  As  they  acted  with  knowledge  of  all  the  facts, 
it  would  be  inequitable  for  them  to  retain  money  received  under 
such  circumstances,  and  we  see  no  reason  why  the  law  should  not 
infer  a  promise  of  restitution  the  same  as  if  the  money  had  been 
collected  under  an  execution.  In  either  case  the  inference  rests 
upon  the  fact  that  money  was  received  by  those  who  knew  at  the 
time  that  it  might  ultimately  be  decided  that  they  were  not  entitled 
to  it.  But  to  whom  did  the  implied  promise  run?  Obviously  to 
those  who  would  have  been  entitled  to  the  money  upon  the  reversal 
of  the  order,  provided  it  had  not  been  paid  to  the  defendants.  It 
was  so  held  in  Camerton  v.  McCarkle,  15  Grat.  (Va.)  177,  which  is 
precisely  in  point.  The  law  implies  the  promise  for  the  benefit  of 
the  injured  party,  and  if  the  sitiiation  were  the  same  as  it  was  when 
the  money  was  paid,  repayment  to  the  sheriff  would  be  required, 
because  he  would  be  entitled  to  possession  of  the  fund  tmder  the  re- 


*°Accord:  Hosmer  v.  Barret,  2  Root  (Conn.)  156  (1794)  ;  Green  v.  Stone, 
I  Har.  &  J.  (Aid.)  405  (1803)  ;  Duncan  v.  Kirkfatrick,  13  Serg^&^.  l.Pa.) 
292  (1825)  ;  Bank  of  U.  S.  v.  Bank  of  Washington,  6"Pet.  (U.' S:)  8,  8  L.  ed. 
299  (1832);  Catlin  V.  Allen,  17  Vt.  158  (1845);  Glover  v.  Foote,  7  Blackf. 
(Ind.)  293  (1844)  ;  Dnpny  v.  Roebuck,  7  Ala.  484  (1845)  ;  Stevens  v.  Fitch, 
52  Mass.  (11  Mete.)  248  (1846)  ;  Martin  v.  Woodruff,  2  Ind.  237  (1830)  ; 
E.X  parte  Morris  &  Johnson,  9  Wall.  (U.  S.)  605,  19  L.  ed.  799  (1869)  ; 
Lewis  v.  Hiill,  39  Conn.  116  (1872)  ;  Crane  v.  Riiney,  26  Fed.  15  (1886)  ; 
Ashton  V.  Fleydenfeldt,  124  Cal.  14,  56  Pac.  624  ( 1899)  ;  Drescher-Rotberg 
Co.  V.  Landcker,  82  Misc.  441,  143  N.  Y.  S.  1050  (1913). 


59 — Civ.  Proc. 


9J;0  APPEAL   AND    ERROR 

Stored  attachment.  Pack  v.  Gilbert,  124  N.  Y.  612.  But  the  situation 
is  changed,  as  tlie  plaintiffs  have  become  entitled  to  the  money  by 
virtue  of  their  judgment  and  execution.  They,  and  they  alone,  there- 
fore, can  avail  themselves  of  the  implied  promise,  w^liich  is  plastic  in 
character  and  for  the  beneiit  of  whom  it  may  concern.  The  lavv^  im- 
plies a  promise  because  in  equity  and  good  conscience  the  defend- 
ants ought  to  have  promised,  and  it  will  not  permit  them  to  say  that 
they  did  not.  It  would  be  an  anomaly  to  hold  that  the  law  will  im- 
ply a  promise  in  favor  of  one  having  title,  but  not  in  favor  of  one 
holding  the  first  lien,  when  through  the  action  of  agencies  known  by 
tlie  parties  to  be  in  operation  and  in  the  ordinary  course  of  legal 
procedure,  the  lien  would  have  ripened  into  a  title,  but  for  the  er- 
roneous order.  The  defendants  procured  the  order  and  acted  upon 
it,  and  thereby  obtained  money  that  did  not  belong  to  them,  and, 
under  such  circumstances,  the  law  presumes  that  they  engaged  to  do 
what  reason  and  justice  require  them  to  do.  They  are,  therefore, 
under  an  obligation  to  restore  the  money.  In  enforcing  that  obliga- 
tion, the  courts  will  not  be  particular  to  require  literal  restitution  to 
tlie  sheriff,  or  late  sheriff,  but,  as  the'  plaintiifs  have  now  become 
entitled  to  the  fund,  will  permit  them  to  recover  it  in  a  direct  action 
for  money  had  and  received.  By  imputation  of  law,  the  defendants 
received  the  money  for  the  benefit  of  the  party  ultimately  entitled 
to  it,  and  by  refusing  to  pay  it  over  to  that  party,  upon  a  proper 
demand  after  his  rights  had  matured,  became  liable  to  an  action  for 
the  recovery  thereof.  Mason  v.  Prendergast,  120  N.  Y.  536. 

The  suggestion  that  the  plaintiffs  should  have  procured  a  stay 
of  proceedings  is  not  entitled  to  much  weight,  because  a  stay  by 
order  is  not  a  matter  of  right,  while  a  stay  by  undertaking  upon 
appealing  from  a  judgment  is  a  matter  of  right,  yet  the  omission  to 
give  an  undertaking  does  not  prevent  a  recovery  upon  a  reversal  of 
the  judgment. 

We  think  that  the  judgments  rendered  by  the  courts  below 
should  be  reversed  and  the  demurrer  overruled,  with  costs  in  all 
courts,  with  leave  to  the  defendants  to  answer  over  in  twenty  days 
upon  payment  of  costs.*^ 

All  concur. 

Judgment  reversed. 


^'Accord:  Caperton  v.  McCorkle,  S  Gratt.  (Va.)  177  (1848).  Restitution 
may  be  had  from  the  assignee  of  the  judgment  reversed.  Maghce  v.  Kellogg, 
24  Wend.  (N.  Y.)  32  (1840)  ;  Reynolds  v.  Harris,  14  Cal.  667,  76  Am.  Dec. 
459  (i860)  ;  Florence  Cotton  &  Iron  Co.  v.  Louisville  Banking  Co.,  138  Ala. 
588,  36  So.  456,  100  Am.  St.  50  (1903),  or  an  agent  of  the  adverse  party  who 
still  has  the  fund  in  his  hands.  Catlin  v.  Allen,  17  Vt.  158  (1845).  But  where 
after  the  collection  of  the  money,  it  is  paid  out  to  a  third  person,  in  good 
faith,  on  reversal,  the  payment  can  not  be  recovered  from  such  person :  redress 
must  be  sought  from  the  adverse  party.  Langley  v.  Warner,  3  N.  Y.  ^27 
(1850);  Florida  R.  Co.  v.  Bisbee,  18  Fla.  60  (1881)  ;  Green  &  Miller  v. 
Brengle,  84  Va.  913,  6  S.  E.  603  (1888)  ;  Fidelity  Trust  &c.  Co.  v.  Louisville 
Banking  Co.,  119  Ky.  675,  58  S.  W.  712,  22  Ky.  L.  202  (1900)  ;  Thaxter  v. 
Thain,  loo  App.  Div.  488,  91  N.  Y.  S.  729  (1905).  In  McJilton  v.  Lovc,^ 
13  111.  4S6,  54  Am.  Dec.  449  (1851),  it  is  said  per  Treat,  C.  J.:  "If  the  plaintiff 
has  derived  any  benefit  from  the  judgment,  he  must  make  as  full  restitution  to 
the   defendant,    as   the   circumstances   of   the   case   will   permit.     If    he    has 


CORWITH    V.    STATE    BANK  93I 

CORWITH  V.  STATE  BANK  OF  ILLINOIS 

Supreme  Court  of  Wisconsin,   1862 

IS  Wis.  289 

Appeal  from  the  Circuit  Court  for  La  Fayette  County. 

The  State  Bank  of  Ilhnois  moved  the  circuit  court,  at  the  Octo- 
oer  term,  1858,  to  set  aside  certain  sales  of  real  estate  made  to 
Corwith,  upon  executions  issued  on  a  judgment  in  that  court  in  his 
favor  against  the  bank,  upon  the  ground  that  the  judgment  had, 
after  the  sales  were  made,  been  reversed  by  the  Supreme  Court.*^ 

Dixon,  C.  J. :  The  sale  was  set  aside  as  to  the  lands  bid  in  by 
the  plaintiff.  The  titles  of  strangers  purchasing  under  the  execu- 
tion remain  undisturbed.  It  is  from  this  order  the  plaintiff  appeals. 
The  rule  upon  which  his  counsel  rely,  or  rather,  the  reason  of  it, 
suggests  its  own  exception,  and  that  the  plaintiff's  case  is  within  it. 
The  rule  is,  that  where  a  judgment  is  reversed  for  error,  the  sale 
under  tlie  execution  shall  not  be  avoided ;  the  reason,  if  it  were,  the 
vendee  would  lose  his  property  and  his  money  too,  and  therefore 
great  inconvenience  would  follow,  as  no  one  would  buy  of  the  sheriff 
in  such  cases,  and  executions  of  judgments  would  not  be  done.  8 
Coke,  Manning's  Case;^^  Woodcock  v.  Bennett,  i  Cow.  (N.  Y.) 
734-42.  The  exception  necessarily  implied  is,  if  the  plaintiff  or  cred- 
itor be  the  purchaser,  the  sale  may  be  avoided.  He  has  parted  with 
no  money,  and  has  no  property  to  lose.  The  reversal  of  his  judgment 
is  a  judicial  determination  that  he  was  not  entitled  to  recover.  No 
inconvenience  will  follow.  It  is  unnecessary,  to  encourage  bidders, 
that  he  should  be  protected.  The  rule  ceases  with  the  reason.  The 
statute  gives  the  debtor  a  right  to  redeem.  It  would  be  absurd  and 
unjust  beyond  measure,  to  say  that  he  can  only  regain  his  land  by 
the  payment  of  money  which  he  does  not  owe.   The  wisdom  of  the 


received  payment  in  money  from  the  defendant,  the  latter  can  recover  it 
back  in  an  action  of  indebitatus  assumpsit.  If  he  has  obtained  money  by 
the  sale  of  the  property  of  the  defendant,  the  latter  may  recover  it  as  so 
much  money  had  and  received  to  his  use.  If  he  has  purchased  in  property 
under  the  judgment,  and  still  retains  the  ownership,  the  defendant  may 
recover  the  specific  property  in  the  appropriate  action.  If  he  has  aliened 
the  property,  he  is  responsible  to  the  defendant  for  its  value.  But  the  rights 
of  third  persons  are  not  affected.  Their  title  to  property  acquired  under 
an  erroneous  judgment,  is  not  divested  by  the  reversal.  In  such  case  the 
defendant  must  look  to  the  plaintiff  for  redress." 

■*'Part  of  the  statement  of  facts  and  opinion  of  the  court  relating  to 
another  point  are  omitted. 

-'^"And  if  the  sale  of  the  term  should  be  avoided,  the  vendee  would  lose 
his  term,  and  his  money,  too,  and  thereupon  great  inconvenience  would  follow, 
that  none  could  buy  of  the  sheriff  goods  or  chattels  in  such  cases,  and  so 
execution  of  judgment  (which  is  the  life  of  the  law  in  such  casesO  would  not 
be  done."  Amner  v.  Loddington,  cited  in  Manning's  Case,  8  Coke  192  (1609). 
Accord:  Hoe's  Case,  5  Coke  89  (1599)  ;  Coleman  v.  Trahiie,  2  Bibb  (Ky.)  518 
(1810).  But  otherwise  as  to  sales  on  void  judgments  or  executions.  See  note 
to  Champney  v.  Smith,  81  Mass.  (15  Grav)  512  (i860),  p.  764,  supra:  Hunter 
V.  Rtiff,  47  S.  Car.  525,  25  S.  E.  65,  58  Am.  St.  907  (1896). 


93-  ArrrAL  Axn  kkror 

law,  whicli  looks  to  the  rights  of  all  jiarties,  leads  to  no  such  oppres- 
sion. The  power  to  set  aside  the  sale  under  such  circumstances,  of 
necessity  resides  with  the  court,  and  the  order  here  was  fully  justi- 
fied. This  conclusion  is  sustained  by  the  English  authorities.  See 
3  Bac.  Abr.  Tit.  "Execution,"  Q,  where,  having  given  the  rule,  the 
exception  is  thus  stated:  "But  if  the  ]ilaintiff  takes  out  an  elegit  on 
his  judgment,  and  the  sheriff  upon  this  writ  delivers  a  lease  for 
years,  of  the  defendant,  to  the  value  of  £50,  to  tlie  plaintiff,  per 
rationabile  pretium  et  extentum,  to  have  as  his  own  term,  in  full 
satisfaction  of  £50,  part  of  the  sum  recovered,  and  afterwards  the 
defendant  reverses  the  judgment,  he  shall  be  restored  to  the  same 
term  and  not  to  the  value;  for  though  the  sheriff  might  have  sold 
tlie  term  on  this  writ,  yet  here  is  no  sale  to  a  stranger,  but  a  delivery 
of  the  term  to  the  party  that  recovered,  by  way  of  extent,  without 
any  sale,  and  therefore  the  owner  shall  be  restored.*^  And  for  this 
reason  if  goods  were  on  this  writ  delivered  to  the  party,  per  ration- 
abile pretium  et  extentum,  upon  the  reversal  of  the  judgment  he 
should  be  restored  to  the  goods  themselves."  The  right  of  the 
debtor,  whose  lands  are  purchased  by  the  creditor  on  execution 
under  our  statute,  can  not  be  distinguished  on  principle  from  those 
of  the  debtor  whose  property  is  under  extent  according  to  the  Eng- 
lish practice.  In  Goodyear  v.  Junce,  Yelv.  179,  the  distinction  be- 
tween a  sale  by  the  sheriff  to  the  party  himself  and  such  sale  to  a 
stranger,  is  expressly  noted,  and  it  is  said  the  latter  only  will  be 
protected.  If  the  former  be  the  purchaser,  restitution  will  be 
awarded.  And  Harnson  v.  Doe,  2  Blackf.  (Ind.)  i,  is  an  authority 
fully  in  point.  See  also  Simons  v.  Catlin,  2  Caines  (N.  Y.)  60.^° 
Order  affirmed. 


^'In  Bryant  v.  Fairfield,  51  !Maine  149  (1863),  it  is  held  that  if  an  execution 
is  extended  upon  the  land  of  the  debtor  and  is  set  off  to  the  creditor  and  the 
judgment  is  reversed  on  -writ  of  error,  the  debtor  is  entitled  to  the  land  again. 
Accord:  Delano  v.  Wilde,  77  Mass.  (11  Gray)  17,  71  Am.  Dec.  687  (1858); 
Gay  V.  Smith,  36  N.  H.  435  (1858),  semble;  Kennedy  v.  Duncklee,  67  Mass. 
65  (1854),  semble.  Compare  Horton  v.  Wilde,  74  Mass.  425  (1857). 

■^One  not  a  party  to  the  suit  who  purchases  at  a  judicial  sale  based  on 
proceedings  merely  erroneous  but  not  void,  acquires  a  title  which  is  not 
divested  by  a  subsequent  reversal ;  the  appellant's  remedy  being,  in  such  case, 
an  action  against  the  adverse  party.  Anonynwits,  Dyer  363  (1577)  ;  Taylor  v. 
Boyd,  3  Ohio  337,  17  Am.  Dec.  603  (1828)  ;  Hays  v.  Shannon,  5  Watts.  (Pa.) 
548  (1836)  ;  ly ampler  v.  Wolfinger,  13  Md.  337  (1858)  ;  Duf_Y-_J^W^op, 
7£Pa.  St.  ■•^00  (187.^)  ;  McWaters  v.  Smith,  25  La.  Ann.  515  (1873)  ;  SJililts 
V.  Sanders,  38  N.  J.  Eq.  154  (1884)  ;  Whitman  v.  Fisher,  74  111.  147  (1874)  ; 
Stout  v.  Gully,  13  Colo.  604,  22  Pac.  954  (1889)  ;  Parker  v.  Courtney,  28  Nebr. 
605,  44  N.  W.  863,  26  Am.  St.  360  (1890)  ;  Macklin  v.  Allenberg,  100  Mo.  337, 
13  S.  W.  350  (1889)  ;  Shannon  v.  Keivton,i32  Fa.  St.  375,  19  Atl.  138  (1890)  ; 
Ryan  v.  Staples,  78  Fed.  563  (1897)  ;  JI^CLrM?TEstatJrT^2ViK._St^3g3,  38  Atl. 
620  (1807),  semble;  Manfiill  v.  CrahanlTss  Nebr.  645,  76 "N.  W.  l^,  70  Am.  St. 
412  (1898)  ;  Klapneck  v.  Kelts,  50  W.  Va.  331,  40  S.  E.  570  (1901)  ;  Kazeheer 
V.  Xtinemaker,  82  Nebr.  732,  118  N.  W.  646  (1908)  ;  Lanier  v.  Ileilig,  149  N. 
Car.  384,  63  S.  E.  69  (1908);  The  John  Twohy  Jr.,  189  Fed.  965  (1911)  ; 
Chapman  v.  Branch,  72  W.  Va.  54,  78  S.  E.  235  (1913).  But  property  pur- 
chased by  the  adverse  party,  or  those  in  privity  with  him  by  some  authorities, 
will  be  restored  to  the  successful  appellant.  Dater  v.  Troy  Turnpike  R.  Co., 
2  Hill  (N.  Y.)  629  (1842)  ;  McLagan  v.  Brozvn,  11  111.  519  (1850)  ;  McBain  v. 
McBain,  15  Ohio  St.  337  (1864)  ;  Voglcr  v.  Montgomery,  54  Mo.  577  (1874)  ; 


1 


CHAMBERS   V.    nilLADELPIIIA   P.    CO.  933 

SECTION  9.  REMITTITUR 

CHAMBERS  v.  I'HILADELPHIA  PICKLING  CO. 

Supreme  Court  of  New  Jersey,  191  i 

S2  N.  J.  L.  I 

On  defendant's  rule  to  show  cause. 

Gummere,  C.  J. :  This  case  was  tried  at  the  Camden  circuit 
on  April  11,  191 1,  in  the  absence  of  the  defendant,  and  resulted  in  a 
verdict  for  the  plaintiff.  The  case  had  been  in  the  court  of  errors 
and  appeals  on  a  review  of  a  judgment  overruling  a  demurrer.  The 
remittitur  from  the  court  of  errors  and  appeals  bears  date  March  6, 
191 1 ;  the  file  mark  endorsed  upon  it  by  the  clerk  of  the  court  of 
errors  and  appeals,  however,  bears  date  April  24,  191 1,  thirteen  days 
after  the  trial  at  the  circuit.  The  reasonable  conclusion  to  be  drawn 
from  these  variant  dates  is  that,  although  the  remittitur  was  ordered 
by  the  appellate  court  on  the  sixth  day  of  March  (that  being  the 
date  upon  which  the  opinion  of  that  court  was  delivered  in  the  case), 
the  plaintiff's  attorney  failed  to  file  the  remittitur  in  the  clerk's  office 
until  tlie  twenty-fourth  of  April.  On  this  assumption  the  trial  was 
premature,  for  the  writ  of  error  removed  the  record  into  the  court 
of  review,  and  that  record  remained  there  until  the  remittitur  was 
actually  entered.  Welsh  v.  Brown,  13  Vroom  (N.  J.)  324.  More- 
over, under  rule  39  of  the  court  of  errors  and  appeals,  the  record  is 
not  permitted  to  be  actually  remitted'  to  the  court  below  until  after 
the  expiration  of  ten  days  from  the  date  of  the  entry  of  the  remitti- 
tur, without  a  special  order  of  the  court.  Until  the  record  Avas  re- 
turned the  court  below  was  without  power  to  try  the  case.  For  this 
reason  the  rule  to  show  cause  will  be  made  absolute.^^ 


Fishhach  v.  Weaver,  34  Ark.  569  (1879)  ;  Ogdcn  v.  Harrison,  56  Miss.  743 
(1879)  ;  Major  v.  Collins,  17  111.  App.  239  (1885)  ;  Cottle  v.  Simon,  153  N.  Y. 
403,  47  N.  E.  81S  (1897);  Dunfce  v.  Childs,  45  W.  Va.  155,  30  S.  E.  102 
(1898)  ;  DiNola  v.  Allison,  143  Cal.  106,  76  Pac.  976,  65  L.  R.  A.  419,  loi 
Am.  St.  84  (1904).  Contra:  Den  ex  dem.  Bickerstaff  v.  Bellinger,  5  N.  Car. 
272  (1809)  ;  South  Fork  Canal  Co.  v.  Gordon,  2  Abb.  (U.  S.)  479,  Fed.  Cas. 
No.  13189  (1868)  ;  Blake  v.  Wolf,  23  Ky.  L.  1143,  in  Ky.  840,  64  S.  W.  910, 
98  Am.  St.  434  ( 1901 ) . 

Where  the  property  is  sold  to  a  stranger,  restitution  will  be  awarded 
only  in  the  amount  received  by  the  judgment  creditor.  Cassell  v.  Cooke,  8 
.Serc^.  ^  R.  (Pa.^  2n6  ( ^9,9.9^  ;  Gay  V.  Smith,  38  N.  H.  171  (1859)! 'Pec^  V. 
McLean,  36  Minn.  228,  30  N.  W.  759,  i  Am.  St.  665  (1886).  Contra  (allow- 
ing value  of  property)  :  Thompson  v.  Thompson,  i  N.  J.  L.  159  (1793)  ; 
Maynard  v.  May,  16  Ky.  L.  690,  25  S.  W.  879  (1894)  ;  Ftish  v.  Egan,  48  La. 
Ann.  60,  19  So.  108  (1896). 

"Accord:  Norris  v.  Tomlin,  2  Munf.  (Va.)  336  (1811)  ;  Lafferty  v. 
Rutherford,  10  Ark.  453  (1850);  Cox  v,  Henry ,_2>^  Pa.  St.  445  (i860); 
La  Crosse  Co.  v.  Reynolds,  12  Minn.  CGiTriT7J  213  (1867)  -.TTowFridge  v. 
Sickler,  48  Wis.  424,  4  N.  W.  563  (1879);  Austin  v.  Dufour,  no  III.  85 
(1884)  ;  Lloyd  v.  Matthews,  92  Ky.  300,  17  S.  W.  795,  13  Ky.  L.  537  (1891)  ; 
Oregon  R.  Co.  v.  Hertsherg,  26  Ore.  216,  37  Pac.  1019  (1894)  ;  Htihbard  v. 
McCrea,  103  Ga.  680,  30  S.  E.  628  ( 1898)  ;  Lyon  v.  Lyon,  103  Ga.  747,  30  S.  E. 


934 


APPEAL    AND    ERROR 


EXCHANGE  MUT.  LIFE  INS.  CO.  r.  WARSAW-WILKIN- 
SON CO. 

Circuit  Court  of  Appeals  of  United  States,  Third  Circuit, 

1910 

185  fed.  487 

In  error  to  the  Circuit  Court  of  the  United  States  for  the  East- 
ern District  of  Pennsylvania. 

Action  at  law  by  the  Warsaw-Wilkinson  Company  against  the 
Exchange  IMutual  Life  Insurance  Company.  On  motion  to  amend 
mandate  in  181  Fed.  330."    Denied. 

Before  Buffington,  Circuit  Judge,  and  Archbald  and  Cross, 
District  Judges. 

Per  Curiam.  According  to  the  memorandum  at  the  foot  of  the 
former  opinion  (181  Fed.  330),  the  judgment  below  was  reversed, 
and  a  procedendo  awarded.  This  order  was  appropriate  to  the  case. 
Showell  V.  Barr,  228  Pa.  42.  And  there  was  nothing  obscure  about 
it.  It  merely  remitted  the  case  for  further  proceedings  not  incon- 
sistent with  what  had  been  decided.  Commonwealth  v.  Magee,  224 
Pa.  171.  A  procedendo  is  a  writ  from  a  higher  to  a  lower  court, 
directing  that  the  case  be  proceeded  with.  It  does  not  undertake  to 
say  what  the  decision  shall  be,  but  merely  that  there  shall  be  one. 
3  Blacks.  Com.  109;  Yates  v.  People,  6  Johns.  (N.  Y.)  462;  2 
Cromp.  Prac.  433 ;  i  Fitzh.  N.  B.  153,  154,  240.  And,  where  there  is 
a  reversal,  the  case  is  thereupon  taken  up  in  the  court  below  at  the 
point  where  the  erroneous  judgment  was  rendered.  In  the  present 
instance  the  mandate  in  strictness  should  have  amplified  the  memo- 
randum, and  not  simply  repeated  it.  The  judgment  being  reversed, 
the  case  should  have  been  remitted  to  the  court  below  for  further 
proceedings  as  to  right  and  justice  might  pertain,  consistent  with  tlie 
decision  rendered,  a  not  unfamiliar  direction.  Cf.  Davis  v.  Railroad, 
217  U.  S.  157;  McClellan  v.  Garland,  217  U.  S.  268. 


575  (1898).  Contra:  Judson  v.  Gray,  17  How.  Pr.  (N.  Y.)  289  (1859); 
Becker  v.  Becker,  50  Iowa  139  (1878).  The  omission  has  been  regarded  as  an 
irregularity  that  may  be  remedied  by  an  order  nunc  pro  tunc.  Albrir/htV. 
McGinnis.  d  Yeates  (Pa.)  517  (1808);  In  re  Benzinger  Tp.  Rd.,  135  Pa^  St. 

176,  19  Atl.  942  (1890^.  ■        ,         .       ,  ,    ,  /^      .1.  7;    , 

Either  party  may  file  the  mandate  m  the  court  below,  tampbell  v. 
Weakley,  7  B. 'l^Ion.  (Kv.)  22  (1846);  Murray  v.  IVhittaker,  17  111.  230 
(1855).  In  Pennsylvania  the  Ac,t  of  Mav  lo.  i8q7.  P.  L.  67,  §  20,  provides: 
"At  the  expiration  of  ten  days  from  the  final  decision  of  any  cause  by  the 
Supreme  Court  or  superior  court,  the  prothonotary  thereof  Ehall  send  back 
the  record,  with  a  remittitur  and  a  cony  of  the  opinion  to  the  court  from  which 
it  originally  came,  unless  other  steps  be  taken  in  the  cause  which  shall  require 

its  detention."  -r^  r     j     .  /^i  j 

"The  action  was  on  a  fire  insurance  policy  for  $7,500.  Defendant  hied  an 
affidavit  of  defense  contending  that  it  was  only  liable  for  $1,721.72.  Plaintiff 
took  a  rule  for  judgment  for  want  of  a  sufficient  affidavit  of  defense,  which 
the  court  made  absolute.  Defendant  brought  error.  The  circuit  court  of 
appeals  held  that  it  was  error  to  give  summary  judgment  for  more  than  the 
amount  admitted,  reversed  the  judgment  and  awarded  a  procedendo. 


EXCHANGE    &C.    INS.    CO.    V.    WARSAW-WILKINSON    CO,  935 

A  motion  is  made  to  amend  the  mandate,  and  have  it  declare 
what  shall  be  the  result  of  the  proceedings  to  be  further  taken ;  that 
is  to  say,  that  the  rule  nisi  for  judgment  for  want  of  a  sufficient  affi- 
davit of  defense  should  be  restored  and  made  absolute,  and  judg- 
ment be  thereupon  entered  in  favor  of  the  plaintiff  for  the  amount 
admitted  to  be  due,  with  interest,  and  "a  procedendo  awarded  as  to 
the  balance."  If  there  was  any  uncertainty  in  die  original  direction 
that  a  procedendo,  eo  nomine,  be  awarded,  this  only  serves  to  repeat 
and  continue  it,  and  to  avoid  this  we  ought,  in  consistency,  to  go  on 
and  tell  the  court  what  should  be  done  afterwards.  But  this  is 
neither  wise  nor  best  as  to  any  of  it.  Authority  may  exist,  in  re- 
versing a  judgment,  to  direct  that  some  other  one  be  rendered,  and 
there  may  be  cases  which  call  for  it.  Rev.  Stat.,  section  701 ;  Act 
March  3,  1891,  chapter  517,  section  11,  26  Stat.  829  (U.  S.  Comp. 
St.  1901,  p.  552).  Nor  is  there  much  doubt  here  as  to  what  is  likely 
to  be  the  result  with  respect  to  the  part  of  the  plaintiff's  claim  that 
is  not  controverted.  But  the  case  in  which  the  appellate  court  may 
dictate  the  judgment  are  those  where  final  disposition  may  be  so 
made  of  them.  And  the  judgment  here  is  not  of  that  character.  The 
case  has  got  to  go  back  as  to  a  part  of  the  controversy,  and  it  is  best, 
therefore,  that  it  should  go  back  as  to  all  of  it. 

The  only  question  before  the  court,  at  the  argument,  was  the 
validity  of  the  judgment  which  had  been  entered  in  the  court  below, 
and  not  some  other  which  might  have  been;  and,  in  reversing,  the 
judgment  here  is  properly  confined  to  that.  It  might  be  that  no  harm 
would  result,  in  the  present  instance,  in  controlling  the  proceedings 
to  the  extent  asked  for.  But  the  precedent  is  not  a  good  one,  and 
we  can  not  tell  the  effect  it  might  have  on  others.  The  plaintiffs  can 
get  all  the  relief  that  they  are  entitled  to  in  the  court  below,  without 
moving  this  court,  and  to  that  tliey  should  be  remitted. 

The  motion  to  amend  the  mandate  is  refused,  except  that  the 
case  will  be  directed  to  be  sent  back  for  further  proceedings  not  in- 
consistent with  the  opinion  previously  rendered.®^ 


^'In  People  v.  Wait,  243  111.  156,  90  N.  E.  183  (1909),  it  is  said,  per 
Cartwright,  J.:  "If  a  judgment  is  reversed  and  the  cause  is  remanded  the 
inferior  tribunal  can  take  only  such  further  proceedings  as  conform  to  the 
judgment  of  the  appellate  tribunal,  and  if  specific  directions  are  given,  nothing 
can  be  done  except  to  carry  out  such  directions.  If  no  specific  directions  are 
given,  it  must  be  determined  from  the  nature  of  the  case  what  further  pro- 
ceedings would  be  proper  and  not  inconsistent  with  the  opinion.  It  is  not 
required  that  specific  directions  shall  be  stated  in  an  order  reversing  a  judg- 
ment and  remanding  a  cause,  and  it  is  the  duty  of  the  court  to  which  the 
cause  is  remanded,  to  examine  the  opinion  and  proceed  in  conformity  with  the 
views  expressed  in  it.  It  makes  no  difference  whether  there  is  a  general 
direction  to  proceed  in  conformity  with  the  views  expressed  in  the  opinion 
or  not,  because  that  is  always  the  duty  of  the  inferior  court,  and  if  the  issue 
has  been  determined  upon  its  merits  and  the  cause  remanded  generally,  the 
court  can  do  nothing  but  enter  a  judgment  accordingly,  if  it  is  a  case  like 
this  [delinquent  tax  proceeding],  where  there  is  no  right  to  a  jury  trial " 
See  further  Ex  parte  Sibbald  v.  United  States,  12  Pet.  (U.  S.)  488  (1838); 
Soule  V.  Dawes,  14  Cal.  247  (1859)  ;  Dahcock  v.  Murray,  61  Minn.  408,  63 
N.  W.  1076  (1895)  ;  Coughltn  v.  McElroy,  72  Conn.  444,  44  Atl.  743  (1899). 
But  the  lower  court  may  consider  and  decide  any  matters  left  open  by  the 


93^  ArrEAL  and  error 


mandate  of  tlic  appellate  court,  and  its  decision  of  such  matters  can  be  re- 
viewed by  a  new  appeal  only.  In  re  Sandford  Fork  &  Tool  Co.,  i6o  U.  S. 
247,  40  L.  ed.  414  (1895)  ;  Johns  v.  Norris,  28  N.  J.  Eq.  147  (1877)  ;  Kersh- 
inan  v.  Szvchla,  62  Iowa  654,  17  N.  W.  908  (1883);  McDonald  v.  Swisher, 
fx)  Kans.  610,  ^7  Pac.  507  (1899)  ;  Hannum  v,_  Media  Jjlc^R,  Co.,  221  Pa.  454, 
70  Atl.  847  (1008);  Ettor  V.  Tacoiita,  77  Wash.  267,  137  Pac.  820  (1914); 
State  ex  rel.  McDonald  v.  Parrington,  86  Ncbr.  653,  126  N.  W.  91  (1910)  ; 
Lake  v.  Weaver,  77  N.  J.  Eq.  100,  75  Atl.  906  (1910)  ;  IFard  v.  Harcn,  183  Mo. 
App.  569,  167  S.  W.  1064  (1914)  ;  Kuraih  v.  Ludzvig,  146  Wis.  385,  132  N.  W. 
130  (1911)  ;  State  ex  rel.  Brnmlcy  v.  Jessup,  26  Del.  329,  83  Atl.  30  (1912)  ; 
Fulton  V.  Krull,  151  App.  Div.  142,  135  N.  Y.  S.  432  (1912)  ;  O'Brien  v. 
Seyholt,  163  App.  Div.  162,  148  N.  Y.  S.  489  (1914)  ;  D'Arcy  v.  Jackson 
Cushion  Spring  Co.,  212  Fed.  889  (.1914)  ;  Taylor  v.  Pierce,  220  Mass.  254  107 
N.  E.  947  (191S), 


APPENDIX 

ORIGINAL  WRIT  IN  TRESPASS 
Registrum  Brevium  (1687)  93 

Rex,  vicecomiti  Lincoln  salutem  Si  A,  f  ecerit  te  securum  de  clamore  suo 
prosequendo :  tunc  pone  per  vadium  &  salvos  pleg'  B.  quod  sit  coram  justi- 
tiariis  nostris  apud  Westm  in  octavis  sancti  Michaelis:  (vel  sic,  quod  sit  coram 
nobis  in  octavis  sancti  Michaelis  ubicunq ;  tunc  fuerimus  in  Angl,')  ostensurus 
quare  vi  &  armis  in  ipsum  A.  apud  N.  insultum  fecit,  &  ipsum  verberavit, 
vulneravit  &  male  tractavit;  ita  quod  de  vita  ejus  desperabatur,  &  alia  enor- 
mia ei  intulit,  ad  grave  damnum  ipsius  A.  &  contra  pacem  nostram.  Et 
habeas  ibi  nomina  pleg'  &  hoc  breve.  T.  &c. 

MODERN  WRIT  OF  SUMMONS 
Annual  Practice  (1914)  1401 

George  the  Fifth,  by  the  grace  of  God,  of  the  United  Kingdom  of  Great 
Britain  and  Ireland,  and  of  the  British  Dominions  beyond  the  Seas,  King, 
Defender  of  the  Faith. 

To  C  D  of  in  the  county  of 

We  command  you.  That  within  eight  days  after  the  service  of  this  writ 
on  you,  inclusive  of  the  day  of  such  service,  you  do  cause  an  appearance  to 
be  entered  for  you  in  an  action  at  the  suit  of  A.  B. ;  and  take  notice  that  in 
default  of  your  so  doing  the  plaintiff  may  proceed  therein,  and  judgment  may 
be  given  in  your  absence. 

Witness, 

Lord  High  Chancellor  of  Great  Britain,  the  day  of  ,  in  the 

year  of  our  Lord  one  thousand  nine  hundred  and 

SUMMONS.   PENNSYLVANIA 

The  Commonwealth  of  Pennsylvania,  County  of  Philadelphia,  ss : 

To  the  Sheriff  of  the  County  of  Philadelphia,  Greeting:  We  command 
you  that  you  summon  C  D,  late  of  your  county,  so  that  he  be  and  appear 
before  our  judges,  at  Philadelphia,  at  our  Court  of  Common  Pleas,  No.  I 
of  the  County  of  Philadelphia,  to  be  holden  at  Philadelphia,  in  and  for 
the  said  county,  on  the  Monday  of  next,  there  to  answer  A  B  of  a 

plea  of  Assumpsit.  And  to  have  you  then  and  there  this  writ.  Witness  The 
Honorable  E  F,  President  of  our  said  court,  at  Philadelphia,  the  day 

of  ,  in  the  year  of  our  Lord,  one  thousand  nine  hundred  and 

Prothonotary. 
[Act  of  June  13,  1836.    P.  L.  568.] 

DECLARATION 

Special  Count  in  Assumpsit 
2  Chitty  on  Pleading  (1828)  278 

In  the  Common  Pleas. 

Middlesex  (to  wit.)  C  D  was  attached  to  answer  A  B  of  a  plea  of 
trespass  on  the  case  upon  promises;  and  thereupon  the  said  A  B  by  E  F 
his  attorney,  complains.   For  that  whereas,  heretofore,  to  wit  on  at 

in  consideration  that  the  said  A  B  at  the  special  instance  and  request  of  the 
said  C  D  would  buy  of  him  the  said  C  D  a  certain  horse,  at  and  for  a  cer- 
tain price  or  sum  of  money  to  wit,  the  sum  of  i  to  be  therefore  paid  by 
him  the  said  A  B  he  the  said  C  D  undertook,  and  then  and  there  faithfully 
promised  the  said  A  B  that  the  said  horse  then  was  sound.  And  the  said 
A  B  avers,  that  he,  confiding  in  the  said  promise  and  undertaking  of  the 
said  C  D  did  afterwards,  to  wit,  on  &c.  aforesaid,  at  &c.  aforesaid,  buy 
the  said  horse  of  the  said  C  D  and  then  and  there  paid  him  for  the  same  the 

937 


93$  ArPF.NDIX 

snid  Slim  of  i  ;  nevertheless  tlie  said  C  D  contriving:  and  fraudulently 
intondinsi  to  injure  the  said  A  B  did  not  perform  or  regard  his  said  promise 
and  undertaking,  so  bv  him  made  as  aforesaid,  but  thereby  craftily  arid 
subtlv  deceived"  and  defrauded  the  said  A  B  in  this,  to  wit,  that  the  said 
horse,  at  the  time  of  the  making  of  the  said  promise  and  undertaking  of  the 
said  C  D  was  not  sound,  but  on  the  contrary-  thereof,  was  at  the  time  un- 
sound, wherebv  the  said  horse  became  and  was  of  no  value  to  the  said  A  B, 
and  he  the  said  A  B  hatli  been  put  to  great  charges  and  expense  of  his 
moneys  in  and  about  the  feeding,  keeping,  and  taking  care  of  the  said  horse 
in  the  whole  amounting  to  a  large  sum  of  money,  to  wit,  the  sum  of  £ 
Wherefore  the  said  A  B  saith  that  he  is  injured  and  hath  sustained  damages 
to  the  amount  of  £  and  therefore  he  brings  his  suit  &c. 

[Compare  the  form  in  case  for  deceit  in  the  sale  of  a  horse  2  Chitty  on 
Pleading  (1828)  679.] 

COMMON  COUNTS  CONDENSED 

For  that  whereas  the  said  defendant  CD  on  the        _   day  of 

in  the  year  of  our  Lord  one  thousand  nine  hundred  and  in  the  county 

of  aforesaid  was  indebted  to  the  plaintiff  in  one  thousand  dollars,  for 

the  price  and  value  of  goods  sold  and  delivered  by  the  plaintiff  to  the  de- 
fendant at  his  request ;  and  in  the  like  sum  of  money  for  the  price  and  value 
of  goods  bargained  and  sold  by  the  plaintiff  to  the  defendant  at  his  request : 
and  in  the  like  sum  of  money  for  the  price  and  value  of  work  done,  and 
materials  for  the  same  provided  by  the  plaintiff  for  the  def endent  at  his  request ; 
and  in  the  like  sum  of  money  lent  by  the  plaintiff  to  the  defendant  at  his  re- 
quest; and  in  the  like  sum  of  money  for  money  received  by  the  defendant  for 
the  use  of  the  plaintiff ;  and  in  the  like  sum  of  money  for  money  paid  by  the 
plaintiff  for  the  use  of  the  defendant  at  his  request;  and  in  the  like  sum  of 
money  for  interest  due  from  the  defendant  to  the  plaintiff  for  the  plaintiff 
having  foreborne  moneys  due  from  the  defendant  to  the  plaintiff  at  the  de- 
fendant's request,  for  a  "long  time  then  elapsed;  and  in  the  like  sum  of  money 
or  monev  found  to  be  due  from  the  defendant  to  the  plaintiff  on  an  account 
then  and  there  stated  between  them;  and  the  defendant  afterwards  (to  wit) 
on  the  day  and  year  last  aforesaid,  in  the  county  aforesaid,  in  consideration  of 
the  premises,  respectively,  promised  to  pay  the  said  several  last  mentioned 
moneys  respectively  to  the  plaintiff  on  request ;  yet  the  defendant  has  disre- 
garded his  promises,  and  has  not  paid  any  of  the  said  moneys  or  any  part 
thereof;  to  the  plaintiffs  damage  one  thousand  dollars,  and  thereupon  he 
brings  suit,  &c.  E.  _F. 

Attorney  for  Plaintiff. 

[Form  in  use  in  New  Jersey  prior  to  the  practice  act  of  1912.  For  other 
forms  see  2  Chitty  on  Pleading  (1828)  36;  2  Encyclopaedia  of  Forms  297; 
9  Standard  Proc.  120.] 

COMPLAINT  IN  ALTERNATIVE 
New  Jersey  Practice  Act  of  1912.   Schedule  B,  form  13 
Supreme  Court  of  New  Jersey.   Hudson  County 
Plaintiff 


A  B, 


C  D,  and  in  the  alternative,  E  F, 

Defendants. 
Complaint. 

Plaintiff  (state  residence)  says  that: 

1.  On  January  2,  1912,  defendant,  C  D,  represented  to  plaintiff  that  he 
(C  D)  was  the  agent  of  defendant,  E  F,  authorized  to  sell  the  securities 
hereinafter  mentioned  of  said  E  F. 

2.  On  the  same  day,  by  written  agreement,  plaintiff,  relying  on  the  said 
representations,  agreed  to  buy,  and  said  C  D  agreed  to  sell,  for  account  of 
said  E  F,  100  shares  of  the  capital  stock  of  the company,  for  the  price 


APPENDIX  939 

of  $10,000;  delivery  to  be  made  and  the  price  paid  on  the  then  next  day.   A 
copy  of  said  agreement  is  annexed. 

3.  Neither  of  said  defendants  delivered  said  stock  at  the  time  agreed,  nor 
at  all,  and  both  of  them  still  refuse  to  deliver  it. 

4.  Said  C  D  still  insists  that  he  was  duly  authorized  by  said  E  F  to 
make  said  contract ;  but  said  E  F  denies  that  he  had  so  authorized  C  D,  and 
he  repudiates  the  contract.  Plaintiff  does  not  know  whether  or  not  said  C  D 
was  so  authorized. 

Plaintiff  demands  against  the  defendant,  E  F,  or,  in  the  alternative, 
against  the  defendant,  C  D,  $3,000  damages. 

JUDGMENT.  DELAWARE 

And  now,  to  wit,  this  sixth  day  of  June,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  ninety-four,  this  cause  came  before  the  Superior 
Court  of  the  State  of  Delaware,  in  and  for  the  county  of  Kent,  and  came  the 
parties,  by  their  attorne}^  and  thereupon  came  a  jur}-,  to  wit  (naming  them), 
who  being  duly  elected,  tried  and  sworn,  the  truth  to  speak  upon  the  issue 
joined  on  defendant's  plea,  upon  their  oath  do  say  that  upon  the  said  issue 
joined  they  find  for  the  plaintiff  and  they  assess  the  damages  which  the 
plaintiff  had  sustained  by  occasion  of  the  nonperformance  of  the  promises 
and  assumptions  in  the  declaration  mentioned,  to  five  hundred  dollars,  and 
allow  on  the  said  damages  interest  from  the  sixth  day  of  March  last  past  till 
paid. 

W^herefore  it  is  considered  by  the  court  that  the  plaintiff  recover  against 
the  defendant  his  damages  assessed  as  aforesaid,  with  interest  thereon  to  be 
compute^!  at  the  rate  of  six  per  cent,  per  annum  from  the  said  sixth  day  of 
March  last  past  to  the  payment,  and  his  costs,  etc. 

Judgment  signed  this  sixth  day  of  June,  A.  D.  1894. 

John  Marshall,  Judge. 

[For  other  forms  see  10  Encyclopaedia  of  Forms  649.  For  England, 
Annual  Practice  (1914)  1492.] 

EXECUTION 

Ancient  Forms 

Writ  of  Habere  Facias  Seisinam 

Glanville,  Book  13,  Chapter  8 

Rex    vicecomiti    salutem :     Scias    quod    N.    diracionavit    in    curia    mea 

seisinam  tantae  terrae  in  ilia  villa  per  recognitionem  de  morte  illius  anteces- 

soris  sui  versus  R.   Et  ideo  tibi  praecipio  quod  seisinam  illam  ei  sine  dilatione 

habere  facias. 

Teste  Ranulpho  de  Glanvilla  apud  Westmonasterium  &c. 

[Teste  from  Book  I,  ch.  13.   See  also  Registrum  Judiciale  (1687)  20,  26.] 

Writ  of  Levari  Facias 

Fitz-Herbert's  Natura  Brevium  265.    Registrum  Brevium  298  (1687). 

Rex  vicecomiti  salutem.  Quia  L  filius  B.  solvisse  debuit  M.  de  B.  xx 
i  in  festo  sancti  Michaelis  anno  regni  nostri  &c.  Sicut  constat  nobis  per  in- 
spectionem  rotulorum  cancellariae  nostrae  &  eas  ei  nondum  solvit,  ut 
dicitur ;  Tibi  praecipimus  quod  praed'  pecuniam  de  terris  &  catallis  ipsius  L 
in  balliva  tua  sine  dilatione  levari  facias,  ita  quod  earn  habeas  in  cancellaria 
nostra  in  crastino  nativitatis  sancti  Johannis  Baptistae  proxime  futuro 
ubicunque  tunc  fuer,'  praefato  M.  ibidem  liberand'  &  hoc  nullatenus  omittas. 
Et  habeas  ibi  hoc  breve.   Teste  &c. 

Vv''rit  of  Elegit 

Fitz-Herbert's  Natura  Brevium  266.    Registrum  Brevium  299  (1867). 
Rex  vicecomiti  salutem.    Quia  R.  undecimo  die  Februarii  ultimo  prae- 
terito,  in  cancellaria  nostra  recognovit  se  debcre  H.  viginti  libras,  quas  ei 


940 


APrKNDIX 


solvissc  dcbult  in  fcsto  tali  tunc  proximc  scqucnti  sicut  constat  &c.  canccl- 
lariac  nostnie,  &  cas  ci  noncliim  solvit  ut  elicit,  ac  idem  H.  juxta  statutum 
indo  cditum  clegcrit,  sibi  liberari  pro  pracd'  viginti  libris  omnia  catalla  & 
medictatum  tcrrae  ipsius  R.  tencnd'  juxta  formam  statuti  praed' :  Tibi 
praecipimus  quod  catalla  ipsius  R.  ad  valentiam  pracdictarum  viftinti  librar' 
per  rationabilcm  approciationcm  corundem,  cxceptis  bobus  &  atTris  carucae 
in  praesontia  praed'  R.  per  to  inde  praemonend,'  si  intcrcsse  volucrit,  faciend' 
praclacto  H.  vol  suo  ccrto  attornato  facias  liberari.  F.t  si  catalla  ilia  ad- 
valcntiam  praed'  vi.uinti  libraruni  non  sutTiciant,  tunc  catalla  ilia  sic  minus 
valeiitia  per  rationalilem  appreciatorem,  ac  etiam  mcdietatcm  terrae  ipsius 
R.  in  balliva  tua  per  cxtcntam  similiter  in  praescntia  tua  in  forma  praed' 
faciend',  praefato  H.  vel  dicto  attornato  facias  liberari,  tenend'  ut  liberum 
tencmentum  suum,  quousq'  dictum  debitum  inde  fuerit  levatum.  Et  de  eo 
quod  inde  feceris,  nobis  in  dica  cancellaria  nostra  tali  die  ubicunque  tunc 
fuerit,  sub  sigillo  tuo  distincte  &  aperte  constare  facias.  Et  habeas  ibi  hoc 
breve.  Teste  &c. 

Modem  Forms 

Ajinual  Practice  (1914)  I5I2 

Writ  of  Fieri  Facias 

George  the  Fifth,  by  the  grace  of  God  of  the  United  Kingdom  of 
Great  Britain  and  Ireland,  and  of  the  British  Dominions  beyond  the  Seas, 
King,  Defender  of  the  Faith.   To  the  sheriff  of  ,  greetings: 

We  command  you  that  of  the  goods  and  chattels  of  C.  D.  in  your  bailiwick 
you  cause  to  be  made  the  sum  of  £  and  also  interest  thereon  at  the 

rate  of  i  per  centum  per  annum  from  the  day  of 

which  said  sum  of  money  and  interest  were  lately  before  us  in  our  High 
Court  of  Justice  in  a  certain  action  wherein  A  B  is  plaintiff  and  C  D 
defendant  by  a  judgment  of  our  said  court,  bearing  date  the  day  of 

,  adjudged  to  be  paid  by  the  said  C  D  to  A  B,  together  with 
certain  costs  in  the  said  judgment  mentioned,  and  which  costs  have  been 
taxed  and  allowed  by  one  of  the  taxing  officers  of  our  said  court  at  the 
sum  of  £  as  appears  by  the  certificate  of  the  said  taxing  officer,  dated 

the  day  .   And  that  of  the  goods  and  chattels  of  the 

said  C  D  in  your  bailiwick  you  further  cause  to  be  made  the  said  sum 
of  £  (costs)  together  with  interest  thereon  at  the  rate  of  £4  per  centum 

per  annum  from  the  day  of  and  that  you  have  that  money 

and  interest  before  us  in  our  said  court  immediately  after  the  execution 
hereof  to  be  paid  to  the  said  A  B,  in  pursuance  of  the  said  judgment.  And 
in  what  manner  you  shall  have  executed  this  our  writ  make  appear  to  us 
in  our  said  court  immediately  after  the  execution  thereof.  And  have  there 
then  this  writ.   Witness,  &c. 

Writ  of  Venditioni  Exponas 

George  the  Fifth,  by  the  grace  of  God,  &c.  To  the  sheriflF  of 
greeting :    Whereas  by  our  writ  we  lately  commanded  you  that  of  the  goods 
and  chattels  of  C  D   (here  recite  the  fieri  facias  to  the  end).    And  on  the 

day  of  ,  you  returned  to  us  in  the 

Division  of  our  High  Court  of  Justice  aforesaid,  that  by  virtue  of  the  said 
writ  to  you  directed  you  had  taken  goods  and  chattels  of  the  said  C  D  to 
the  value  of  the  money  and  interest  aforesaid,  which  said  goods  and  chattels 
remained  in  your  hands  unsold  for  want  of  buyers.  Therefore  we,  being 
desirous  that  the  said  A  B  should  be  satisfied  his  money  and  interest  afore- 
said, command  you  that  you  expose  to  sale  and  sell,  or  cause  to  be  sold, 
the  goods  and  chattels  of  the  said  C  D  by  you  in  form  aforesaid  taken,  and 
every  part  thereof,  for  the  best  price  that  can  be  gotten  for  the  same,  and 
have  the  money  arising  from  such  sale  before  us  in  our  said  court  of  justice 
immediately  after  the  execution  hereof,  to  be  paid  to  the  said  A  B.  And 
have  there  then  this  writ.   Witness,  &c. 


APPENDIX  941 

Writ  of  Delivery 

George  the  Fifth,  by  the  grace  of  God,  &c.  To  the  sheriff  of  , 

greeting :  We  command  j^ou,  that  without  delay  you  cause  the  following 
chattels,  namely  (enumerate  the  chattels  recovered  by  the  judgment  for  the 
return  of  which  execution  had  been  ordered  to  issue),  to  be  returned  to 
A  B,  which  the  said  A  B  lately  (recovered  against  C  D  or  which  C  D 
was  ordered  to  deliver  to  the  said  A  B)  in  this  action  by  a  (judgment  or 
order),  dated  the  day  of  ,  19      .  And  we 

further  command  you,  that  if  the  said  chattels  can  not  be  found  in  your  baili- 
wick, you  distrain  the  said  C  D  by  all  his  lands  and  chattels  in  your  baili- 
wick, so  that  neither  the  said  C  D  nor  an3-one  for  him  do  lay  hands  on 
the  same  until  the  said  C  D  render  to  the  said  A  B  the  said  chattels.  And 
in  what  manner  you  shall  have  executed  this  our  writ  make  appear  to  us 
in  our  said  court  immediately  after  the  execution  hereof.  And  have  there 
then  this  writ.  Witness,  &c. 

Writs  of  Possession 

George  the  Fifth,  by  the  grace  of  God,  &c.  To  the  sheriff  of  , 

greeting:  Whereas  lately  in  our  High  Court  of  Justice,  by  a  judgment  of 
the  Division  of  the  same  court  A  B  recovered  (or  E  F  was 

ordered  to  deliver  to  A  B)  possession  of  all  that 

with  the  appurtenances  in  your  bailiwick:  Therefore,  we  command  you  that 
you  omit  not  by  reason  of  any  liberty  of  your  county,  but  that  you  enter  the 
same,  and  without  delay  you  cause  the  said  A  B  to  have  possession  of 
the  said  land  and  premises  with  the  appurtenances.  And  in  what  manner 
you  shall  have  executed  this  our  writ  appear  to  us  in  our  said  court 
immediately  after  the  execution  thereof,  &c.  And  have  you  there  then  this 
writ.  Witness,  &c. 

Execution  Against  Property.   New  York 

The  people  of  the  State  of  New  York  to  the  sheriff  of  the  County 
of  S,  greeting:    Whereas  judgment  was  rendered  on  the  day  of 

,19  ,  in  an  action  in  the  Supreme  Court  between  A,  plaintiff, 
and  B,  defendant,  in  favor  of  the  said  plaintiff  against  the  said  defendant 
for  the  sum  of  dollars,  as  appears  to  us  by  the 

judgment  roll  filed  in  the  office  of  the  clerk  of  the  County  of  S;  and  whereas 
the  said  judgment  was  docketed  in  your  county  on  the  day  of 

19      ,  and  the  sum  of  dollars  with  interest  from  the 

day  of  ,  19      ,  is  now  actually  due  thereon  :  Therefore,  we  com- 

mand you  that  5^ou  satisfy  the  said  judgment  out  of  the  personal  property 
of  the  said  judgment  debtor  within  your  county;  or  if  sufficient  personal 
property  can  not  be  found,  then  out  of  the  real  property  in  your  county 
belonging  to  such  judgment  debtor  on  the  day  when  the  said  judgment  was 
so  docketed  in  your  county,  or  at  any  time  thereafter,  in  whose  hands  soever 
the  same  may  be,  and  return  the  execution  within  sixty  days  after  its  receipt 
by  you,  to  the  clerk  of  the  County  of  S.   Witness,  Honorable  , 

justice  of  said  court,  at  the  day  of  ,  19      . 

Plaintiff's  Attorney. 

Execution  Against  the  Person.  New  York 

The  people  of  the  State  of  New  York  to  the  sheriff  of  the  County  of  S, 
greeting:   Whereas  judgment  was  rendered  on  the  day  of  , 

one  thousand  nine  hundred  ,  in  an  action  in  the 

between  A,  plaintiff,  and  B,  defendant,  in  favor  of  the  said  plaintiff  against 
the  said  defendant  for  the  sum  of  as  appears  to  us  by  the 

judgment  roll,  filed  in  the  office  of  the  clerk  of  the  ,  County 

of  ,  and  whereas  the  said  judgment  was  docketed  in  the 

office  of  the  clerk  of  your  county  on  the  day  of  in  the 


942  APPENDIX 

year  one  thousand  nine  hundred  ,  and  whereas  an  execution 

against  the  property  of  the  judgment  debtor  has  been  duly  issued  to  the  sheriff 
of  the  County  of  ,  whore  tlie  said  judgment  debtor  resides,  and 

has  been  returned  unsatisfied,  and  the  sum  of  is  now  actually  due 

ti'.crcon  ;  therefore  we  command  jou,  that  you  arrest  the  judgment  debtor 
and  commit  him  to  the  jail  of  your  county  initil  he  pay  the  said  judgment, 
or  be  discharged  according  to  law,  and  that  you  return  this  execution  within 
sixty  days  after  its  receipt  by  you  to  the  clerk  of  the  County  of  S.  Witness, 
Honorable  at  of  one  thousand 

nine  hundred 

Attorney  for  Plaintiff. 

Writ  of  Fieri  Facias.  Pennsylvania 

County  of  Philadelphia,  ss. : 

The  Commonwealth  of  Pennsylvania  to  the  sheriff  of  the  County  of 
Philadelphia,  greeting  :  We  command  you  that  of  the  goods  and  chattels,  lands 
and  tenements  of  B,  defendant,  in  your  bailiwick,  you  cause  to  be  levied  as 
well  the  sum  of  dollars  and  cents,  lawful 

money  of  Penns3-lvania,  which  v.^as  adjudged  to  A,  plaintiff,  lately  in  our 
Court  of  Common  Pleas  No.  of  the  Coimty  of  Philadelphia,  in  a  cer- 

tain action  of  between  the  said  plaintiff  and  said  defendant; 

as  also  the  sum  of  dollars  and  cents,  for  the 

costs  and  charges  by  the  said  plaintiff  about  his  suit  in  that  behalf  expended, 
whereof  the  said  defendant  is  convict,  as  appears  of  record,  &c.  And  have 
you  those  moneys  before  our  judges,  at  Philadelphia,  at  our  said  court,  there 
to  be  held  the  first  Monday  of  next,  to  render  to  the  said  plain- 

tiff for  the  judgment  debt,  damages  and  costs  aforesaid.  And  have  you  then 
there  this  writ.    Witness  the  Honorable  ,  president  judge  of  our 

said  court  at  Philadelphia,  the  day  of  ,  in  the  year  of  our 

Lord  one  thousand  nine  hundred  and 

Prothonotary. 

Sheriff's  Retur.nt  Where  Levy  Made 

By  virtue  of  the  within  writ  to  me  directed,  of  the  goods  and  chattels  of 
the  within-named  B.  I  have  caused  to  be  levied  the  debt  and  damages  within 
specified,  which  moneys  I  have  readj-  before  the  judges  within-named,  at  the 
time  and  place  within  mentioned,  as  I  am  commanded. 

Sheriff's  Return  to  Fieri  Facias  Against  Real  Estate 

By  virtue  of  the  v.ithin  writ,  I  have  seized  and  taken  in  execution  (de- 
scription of  property  levied  on)  which  remains  in  my  hands  unsold  for  want 
of  buyers,  and  the  residue  of  the  execution  of  the  said  writ  will  appear  by  a 
certain  schedule  or  inquisition  hereto  annexed. 

Writ  of  Capias  ad  Satisfaciendum.   New  Jersey 

New  Jersey,  ss. : 

The  State  of  New  Jersey  to  the  sheriff  of  the  County  of  M,  greeting: 
We  command  you  that  you  take  B,  defendant,  if  he  may  be  found  in  your 
county,  and  him  safely  keep,  so  that  you  may  have  his  body  before  our 
Supreme  Court  at  Trenton  on  the  day 

A.  D.  19       ,  to  satisfy  A,  plaintiff,  dollars  and 

cents,  which  the  said  plaintiff  lately,  in  our  said  court,  recovered  against  the 
said  defendant,  for  his  damages  which  he  had  sustained,  as  well  on  occasion 
of  an  action  of  tort,  in  which  action  the  said  A  was  plaintiff  and  the  said 
B  was  defendant,  as  for  the  costs  and  charges  by  the  said  plaintiff  about  his 
suit  in  that  behalf  expended,  whereof  the  said  defendant  is  convicted,  as 
appears  to  us  of  record.  And  have  you  then  there  this  writ.  Witness, 
,  Esq.,  Chief  Justice  at  Trenton  aforesaid,  the  day 

of  ,  in  the  year  nineteen  hundred  and 

Attorney.  Clerk. 


[For  other  forms  see  7  Enc.  of  Forms,  972  et  seq.] 


APPENDIX  943 

Execution  Against  Property  and  Person,    Massachusetts 

Commonwealth  of  Massachusetts 
M  County,  ss. : 

To  the  sheriffs  of  our  several  counties  or  their  deputies,  greeting: 
Whereas  A,  of  ,  in  our  County  of  S,  by  the  consideration  of 

our  justices  of  our  Superior  Court,  holden  at  ,  for  and  within 

the  County  M  aforesaid,  on  the  Monday  of  last 

to  wit,  on  the  day  of  ,  A.  D.  19      ,  recovered  judgment 

against  B,  of  ,  for  the  sum  of  dollars  and 

cents  damage  and  dollars  and 

cents  costs  of  suit,  as  to  us  appears  of  record,  whereof  execution  remains 
to  be  done :  We  command  you,  therefore,  that  of  the  goods,  chattels  or  lands 
of  the  said  judgment  debtor,  within  your  precinct,  you  cause  to  be  paid  and 
satisfied  unto  the  said  judgment  creditor,  at  the  value  thereof,  in  money,  the 
aforesaid  sums,  being  $  iv  the  whole,  with  interest  thereon  from 

said  day  of  the  rendition  of  said  judgment,  and  with  cents 

more  for  this  writ,  and  thereof  also  to  satisfy  yourself  for  your  own  fees; 
and  for  want  of  goods,  chattels  or  lands  of  the  said  judgment  debtor,  to  be 
by  him  shown  unto  you,  or  found  within  your  precinct,  to  the  acceptance  of 
the  said  judgment  creditor  to  satisfy  the  sums  aforesaid,  with  interest  as 
aforesaid,  Vv'e  command  you  to  take  the  body  of  the  said  judgment  debtor, 
and  him  commit  unto  either  of  our  jails  within  your  precinct,  and  detain  in 
3'our  custody  within  either  of  our  jails  within  your  precinct,  until  he  pay  the 
full  sums  above  mentioned,  with  interest,  and  with  your  fees,  or  that  he  be 
discharged  by  the  said  judgment  creditor,  or  otherwise,  by  order  of  law. 
Hereof  fail  not,  and  make  return  of  this  writ  with  your  doings  therein,  into 
our  Supreme  Court,  at  our  clerk's  office  in  ,  within  our 

County  of   M  aforesaid,   in   sixty  days   from  date  of  this   writ.    Witness, 
,  Esq.,  at  the  day  of  , 

in  the  year  of  our  Lord  one  thousand  nine  hundred  and 

Clerk. 

[7  Enc.  of  Forms,  991.  Substantially  the  form  prescribed  by  the  Act  of 
May  28,  1701,  Laws  of  Mass.  (1742)]. 

WRIT  OF  ERROR 

Fitz-Herbert's  Natura  Brevium  57 

The  King  to  his  beloved  and  faithful  L  of  T.,  greeting: 
Because  in  the  record  and  process,  and  in  the  giving  of  judgment  of  the 
plaint  which  was  before  you  and  your  companions  our  Justices  of  the  Bench, 
by  our  writ,  between  A  and  B  of  a  record  and  process  of  an  assize  of  novel 
disseisin,  which  was  summoned  between  them,  and  taken  at  S  before  our 
beloved  and  faithful  I.  of  T.  and  his  companions  justices,  assigned,  &c.,  con- 
cerning tenements  in  W.  which  record  and  process  we  indeed  for  certain 
causes  caused  to  come  before  you,  manifest  error  hath  intervened,  to  the  great 
damage  of  him  the  said  A  as  we  have  been  informed  by  his  grievous  com- 
plaint: We  being  willing  that  the  error  (if  any  shall  be)  in  this  behalf  be 
corrected  in  due  manner,  and  that  justice  be  done  thereupon  to  the  parties 
aforesaid,  as  it  ought,  do  command  you,  that  if  judgment  thereof  be  given, 
then  that  you  send  to  us  as  well  the  record  and  process  of  the  plaint  afore- 
said so  had  before  yourselves,  as  also  the  record  and  process  of  the  assize 
aforesaid  set  before  you,  with  all  things  touching  them,  under  your  seal,  &c., 
so  that  we  may  have  them,  &c.,  that  having  inspected,  &c. 

United  States  of  America^  ss.  : 

The  President  of  the  United  States 
To  the  Honorable  the  Judges  of  the  United  States  Circuit  Court  of  Appeals 

for  the  Second  Circuit, 
Greeting  : 

Because  in  the  record  and  proceedings,  as  also  in  the  rendition  of  the 
judgment  of  a  plea  which  is  in  the  said  Circuit  Court  of  Appeals,  before  you, 
or  some  of  you,  between  A  plaintiff  and  B  defendant,  a  manifest  error  hath 


944 


APrENDIX 


liarpcncd,  to  the  prcat  damage  of  the  said  defendant  B,  as  by  his  complaint 
appears.  We  being  wilHng  tiiat  error,  if  any  hath  been,  sliould  be  duly  cor- 
rected, and  full  and  speedy  justice  done  to  the  parties  aforesaid  in  this  behalf, 
do  command  you,  if  jutlKnient  be  therein  given,  that  then  under  your  seal,  dist- 
tinctly  and  openly,  you  send  the  record  and  proceedings  aforesaid,  with  all 
thing's  concerning  the  same,  to  the  Supreme  Court  of  the  United  States, 
together  with  this  writ,  so  that  you  have  the  same  at  Washington,  within  thirty 
davs  from  the  date  hereof,  in  the  said  Supreme  Court,  to  be  then  and  there 
held,  that  the  record  and  proceedings  aforesaid  being  inspected,  the  said 
Supreme  Court  may  cause  further  to  be  done  therein  to  correct  that  error, 
what  of  right,  and  according  to  the  laws  and  customs  of  the  United  States 
should  be  done. 

Witness  the  Honorable  C  D,  Chief  Justice  of  the  said  Supreme  Court, 
the  day  of  in  the  year  of  our  Lord  one 

thousand  nine  hundred  and 

(Signed)  E.    R, 

Clerk  of  the  Supreme  Court  of  the  United  States. 
Allowed  bv : 

(Signed)         G.  H., 

Associate  Justice  of  the  Supreme  Court  of  the  United  States. 


INDEX 


ACCOUNT,  179 
ACTIONS,  143 

ADMINISTRATION, 

collateral  attack,  572 

ALIENS, 

parties,  133 

ALTERNATIVE  COMPLAINT,  327 

form,  938 

AMENDMENT  OF  JUDGMENTS,  531 

APPEAL,  817 

argument,  871 
assignments  of  error,  863 
divided  court,  900 
exceptions,  850 
judgment,  907 
law  of  the  case,  903 
parties,  828 
pleading,  869 
prejudicial  error,  888 
remittitur,  933 
restitution,  925 
reviewed  by  court,  877 
supersedeas,  840 

APPEARANCE,  301 

ARGUMENT, 

on  appeal,  871 
to  jury,  419 

ARREST  OF  JUDGMENT,  488 

ASSIGNMENTS  OF  ERROR,  863 

ASSUMPSIT,  197 

ATTACHMENT, 

mesne  process,  636 

AUDITA  QUERELA,  ^^i 
BILL  OF  EXCEPTIONS,  850 

60 — Qiv.  Proc.  945 


946  INDEX 

BILL  OF  PARTICULARS,  330 

CAPIAS  AD  SATISFACIENDUM,  789 
form,  94- 

CASK, 

action  on  the,  221 

CASE-'MADF., 

appeal,  857 

CHALLENGES, 
jurors,  345 

CHARGE  OF  COURT,  420 

CODE  ACTIONS,  243 

COGNOVIT,  509 

COLLATERAL  ATTACK  ON  JUDGMENTS,  546 

COMMON  COUNTS,  210 
forms,  938 

CONTRACTS, 

joinder  of  plaintiffs,  57 
joinder  of  defendants,  80 

CONVICTS, 

parties,  44 

CORAM  VOBIS,  533 

CORPORATION, 
party,  45 
process,  291 

COVENANT, 

action  of,  186 

COUNTS, 

joinder  of,  315 

COURT, 

definition,  1 

DEATH, 

parties,  43 

DEBT, 

action  of,  189 

DECLARATION,  309 

forms,  937 

DELIVERY. 

writ  of,  form,  941 


INDEX  947 

DEMURRER  TO  EVIDENCE,  388 

DETINUE, 

action  of,  225 

DIRECTION  OF  VERDICT,  410 

DISTRINGAS, 

execution,  804 

DOWER, 

action  of,  170 

DUPLICITY,  313 

EJECTMENT, 

action  of,  146 

ELEGIT,  678 

form,  939 

EQUITABLE  INTERESTS, 
execution,  684 

EQUITY, 

parties,  52 

ERROR, 

writ  of,  817 

form,  943 

ESTOPPEL, 

by  judgment,  594 

ESTREPMENT,  177 

EXCEPTIONS, 
appeal,  850 

EXECUTION,  647 

audita  querela,  T]'^ 

claims  of  strangers,  728 

exemption,  718 

forms,  939 

levy,  704 

lien  of,  694 

person,  788 

possession  of  chattels,  802 

possession  of  real  property,  809 

property  subject  to,  658 

return,  758 

sale,  736 

satisfaction,  776 

supplemental  proceedings,  781 

title  acquired,  760 


948  INDEX 

EXEMrTION  FROM  EXECUTION,  718 

EXPERTS. 

witness  fees,  375 

FIERI  FACIAS, 

forms,  940 

FIXTURES, 

execution,  666 

FORCIBLE  ENTRY  AND  DETAINER, 
action  of,  164 

FORMS. 

See  Appendix,  937 

HABEAS  CORPUS  AD  TESTIFICANDUM,  382 

HABERE  FACIAS  SEISINAM, 
form,  939 

INFANTS, 

parties,  104 

INSANE  PERSONS, 
parties,  124 

INSTRUCTIONS  TO  JURY,  420 

INTERLOCUTORY  JUDGMENT, 
appeal,  822 

INTERPLEADER, 
sheriff's  733 

JOINDER  OF  CAUSES  OF  ACTIONS,  320 

JUDGE 

advice  by,  16 
immunity  from  suit,  22 
interest  in  case,  18,  19 

JUDGMENT,  495 
action  on,  638 
amendment  of,  531 
appeal  and  error,  907 
collateral  attack,  546 
confession,  509 
default,  522 
estoppel  by,  594 
form,  939 
lien  of,  621 
merger,  577 


INDEX 

JUDGMENT— Cow/mH^tf 

non  obstante  veredicto,  4S6 

non  pros.,  530 

opening  and  vacating,  540 

JURY, 

challenges,  345 

custody  and  conduct,  438 

JURY  PROCESS.  342 

JURY  TRIAL, 

constitution,  332 

JUSTICE  OF  THE  PEACE,  11 

LAW  OF  THE  CASE,  903 

LEVARI  FACIAS, 
form,  939 

LEVY, 

execution,  704 

LIEN  OF  EXECUTION,  694 

LIEN  OF  JUDGMENTS,  621 

MANDAMUS,  259 

MARRIED  WOMEN, 
parties.  III 

MERGER, 

judgments,  577 

MISJOINDER, 

causes  of  action,  320 

MOOT  CASE,  31 

MOTION  TO  DISMISS,  407 

MOTIONS  AFTER  VERDICT,  470 

MUNICIPAL  PROPERTY, 
execution,  673 

NEW  TRIAL,  472 

NONSUIT, 

motion  for,  393 

OPEN  AND  CLOSE,  RIGHT  TO,  384 


949 


950 

PARTIES,  35 

appeal  and  error,  82S 
defendants,  80 
execution,  650 
plaintiffs,  57 
personal  disabilitj-,  104 
remedial  interest,  47 

PARTNERS, 

parties,  67 

PTtt'ENTS, 

execution  against,  667 

PERSON, 

execution  against,  788 

PLEADING, 

declaration,  309 

to  assignments  of  error,  86g 

PLEDGES, 

execution,  687 

POSSESSION, 

writ  of,  8og 

form,  941 

PROBATE, 

collateral  attack,  572 

PROCESS,  2S1 

PROCEEDINGS  IN  REM, 
collateral  attack,  563 

PROHIBITION,  266 

PROPERTY, 

execution  against,  658 

PUBLIC  CIVIL  ACTIONS,  253 

PUBLIC  FRANCHISE, 
execution,  670 

QUO  WARRANTO,  253 

REAL  PROPERTY, 
execution,  677 

REHEARING  ON  APPEAL,  874 

REMAINDERS, 

execution,  681 

REMEDIAL  INTEREST,  47 


INDEX 


INDEX  951 


REMITTITUR, 

appeal  and  error,  933 

REPLEVIN, 

action  of,  238 
execution  in,  80S 

REPUGNANCY, 

declaration,  327 

RES  JUDICATA,  577 

RESTITUTION, 

on  reversal  of  judgment,  925 

RETURN, 

conclusiveness  of,  298 

execution,  758 

service  of  process,  296 

SATISFACTION, 
execution,  776 


SCIRE  FACIAS,  639 

SHARES  OF  STOCK, 
execution,  669 

SHERIFF, 

duty  in  making  levy,  704 
interpleader,  733 
sale  by,  736 

SPECIAL  FINDINGS,  465 

SPECIAL  VERDICT,  463 

STARE  DECISIS,  897 

STATE, 

parties,  41 

STATEMENT  OF  PLAINTIF'S  CLAIM,  309 

SUBPOENA,  371 

SUBPOENA  DUCES  TECUM,  378 

SUMMONS, 

forms,  937 
service  of,  286 

SUPERSEDEAS,  840 

SUPPLEMENTARY  PROCEEDINGS,  781 


052  INDEX 

TENANTS  IN  COMMON, 
execution,  690 
parties,  65 

TITLE, 

by  sheriff's  sale,  760 

TRESPASS, 

action  of,  213 

TRIAL, 

modes  of,  331 

TORTS, 

joinder  of  plaintiffs,  62 
defendants,  88 

TROVER, 

action  of,  234 

UNCERTAINTY, 

declaration,  325 

UNINCORPORATED  ASSOCIATIONS, 
parties,  39 

VACATING  JUDGMENTS,  540 

VENUE  OF  ACTIONS,  269 

VENDITIONI  EXPONAS, 
form,  940 

VERDICT,  458 

direction  of,  410 
impeachment  of,  451 
special,  463 

WAIVER  OF  APPEAL,  825 

WASTE, 

action  of,  175 

WITNESSES, 

process  for,  370 

WRIT, 

original,  281 
forms,  937 

WRIT  OF  ERROR,  817 
form,  943 


n 


